Dismissed

(O&M) Nirmal Singh etc. v. Pargan Singh etc.

Punjab & Haryana HC10 Nov 2009RSA/213/1987

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed an appeal against a decree confirming the execution of a Will. The court upheld the lower appellate court's finding that the Will was not duly proved due to unreliable testimony and suspicious circumstances surrounding its execution and non-production.

What did the court decide?

Second appeal against the decree of the lower appellate court was dismissed.

(O&M) Nirmal Singh etc. Vs Pargan Singh… — Succession and Inheritance | Punjab & Haryana HC (2009)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.213 of 1987 (O&M) Date of decision: 10.11.2009

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Nirmal Singh and another

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-----Appellants

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Vs.

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Pargan and others

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----Respondents

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CORAM:HON'BLE MR JUSTICE ADARSH KUMAR GOEL

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Present:Mr. M.S.Rakkar, Senior Advocate with Mr. Pritam Singh Baath, Advocate for the appellants. Mr. KBS Mann, Advocate for respondent Nos. 11 and 12 (Original defendant Nos. 11 and 12).

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Adarsh Kumar Goel ,J.

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This second appeal has been filed by the plaintiff and defendant No.10 against decree of the lower appellate court dismissing the suit, reversing the decree of the trial court by which the suit was decreed.

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The suit of the plaintiff was for declaration of title to be heir of Ram Singh on the basis of Will dated 25.9.1972 Ex.P1 in favour of plaintiff and his brothers i.e. defendant Nos. 10 and 11. According to the plaintiff, the contesting defendants wrongly denied the Will and the revenue authorities had wrongly recorded mutation No.1612 dated 12.6.1976 in favour of the defendants.

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Ram Singh died on 27.9.1975. It was pleaded that original Will was lost and defendants had wrongly set up claim of being heirs of

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RSA No.213 of 1987 (O&M)

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Ram Singh. Plaintiff was settled in England and he learnt facts on visit to India in 1979.

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The defendants contested the suit by disputing the existence of the Will. Milkhi Ram, brother of testator Ram Singh and his nearest heir was original defendant No.1. He contested the suit but died on 18.12.1981 during pendency of suit. Will executed by Milkhi Ram, dated 21.6.1974 Ex.D1, was set up by the contesting defendants. Though, several issues were framed, main issue between the parties was Issue No.2 relating to validity of Will executed by Ram Singh in favour of the plaintiff and defendant Nos. 10 and 11.

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The trial court decided issue No.2 in favour of plaintiff and decreed the suit. Evidence led by the plaintiff mainly comprised of Tarlochan Singh PW1, attesting witness, Joginder Singh, Registration Clerk, Office of the Sub Registrar PW2, Bikramjit Singh, the then Sub Registrar PW3, Sudershan Singh, Draftsman PW4, Sohan Singh PW5, Lashkar Singh PW6, Jiwan Singh PW7 and handwriting expert PS Ahuja PW8. The trial court, inter-alia, observed that thumb impression of Ram Singh in the register of the Scribe at point Ex.DX was interpolated and there was a small hole in the paper of the register for which adverse inference had to be drawn against the defendants. The Will was held to have been duly executed in view of evidence of the

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RSA No.213 of 1987 (O&M)

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plaintiff including that of Tarlochan Singh PW1, attesting witness and Sub Registrar Bikramjit Singh PW3.

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The lower appellate court reversed the finding of the

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trial court on Issue No.2 . Main reasons given for doing so are as

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under:-

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(i) Original Will was not produced. Jiwan Singh PW7 who was maternal uncle and attorney of the plaintiff deposed that original Will was with him and he handed over the same to plaintiff Nirmal Singh in the year 1979 who lost the same. The version that the Will was lost, was not believable and inference could be drawn that the Will had been cancelled or revoked by the testator.

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(ii) The suit itself was filed on 28.5.1979 after more than three years of death of Ram Singh which itself was a suspicious circumstance;

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(iii) Execution of the Will was surrounded by suspicious circumstances. Original witness Tarlochan Singh was a Lambardar of a different village. He did not state that he was on visiting terms with Ram Singh and he was not able to give details of his family. He gave the age of testator to be 60-70 years while the testator was aged 72, at the time of execution of the Will.

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RSA No.213 of 1987 (O&M)

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(iv)

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Sub Registrar Bikramjit Singh did not know the testator and he did not state that he signed as attesting witness. The registration was perfunctory. The Will was never read over by Sub Registrar to the testator. There was contradiction in the testimony of Tarlochan Singh and Sub Registrar Bikramjit Singh.

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(v) The will was unnatural. Milkhi Ram Ram was real brother of the testator and thus nearest legal heir. No reason was mentioned for disinheriting him and other nearer legal heirs. Recital in the Will that the plaintiff rendered services to the testator was incorrect as even according to the plaintiff, he was living in England since 1966. Other beneficiaries were also not shown to be rendering any service to the testator. There was no evidence of plaintiff having sent any money from abroad to the testator. The fact that Milkhi Ram Ram executed Will in favour of contesting defendants was no ground to make the Will of Ram Singh genuine qua the plaintiff. Even Milkhi Ram Ram who died after filing of suit had contested the Will.

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I have heard learned counsel for the appellants and

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perused the record.

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RSA No.213 of 1987 (O&M)

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Learned counsel for the appellants proposed following substantial questions of law:-

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“1. Whether the Wills Ex.P1 and D1 are surrounded by suspicious circumstances?

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Whether the findings recorded by the lower appellate court are the result of misreading of evidence and is also a case of no evidence?

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Whether the lower appellate court has made out a new case which is against the pleadings of the defendants?

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Whether Will Ex.P1 is duly proved and the findings recorded are the result of non consideration of evidence?

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Before proceeding further, it is necessary to refer to

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pedigree table showing relationship between the parties:-

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||“Jawala Singh
|
|
|| |---|---|---| |Bhag Singh
(died in

1931)
|
|
|
||
|
Babu died Ram Singh
Milkhi
issueless died on
(def.
& widow 27.9.1975
No.1) died
less in 1955
during the
pendency
of the suit
|Nami
died in
1950| ||
Pritam Singh
def.No.8

|
|
||_
Jitu alias Ajit
Singh (def.No.12)
|
|
||| |_
|
alias|_______________________
Nirmal Singh Mohinder Singh|Pal| ||
||Singh
Balbir Singh

(Plaintiff)
(def.No.10)|Rachhpal

Singh| ||(def.No.11)||

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RSA No.213 of 1987 (O&M)

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Pargan Singh Pappu”

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Learned counsel for the appellants submitted that there was no suspicious circumstance as contesting defendants and plaintiff were equally related to the testator and Milkhi Ram Ram. Ram Singh and his brother Milkhi Ram had no issue. Will should be taken to be natural when one brother, Milkhi Ram executed Will in favour of the defendants and other brother Ram Singh did so in favour of the plaintiff. It was submitted that the lower appellate court misread the evidence as the age given by Tarlochan Singh was on the date of execution of the Will and not on the date of death; mere fact that Tarlochan Singh was from different village and was not able to give details of family of Ram Singh, was no ground to hold that the testator did not have confidence in him. Distance of village of Tarlochan Singh was only 1 km and he had mentioned that Lambardar of the village of the testator was sick. Further observation that the Sub Registrar did not read the Will, was against the evidence of Tarlochan Singh. Dhanna Singh was a local attesting witness, who died and therefore could not be examined. Bikramjit Singh, Sub Registrar duly supported the execution of the Will. The lower appellate Court failed to deal with the reason given by the trial court that the defendants interpolated the register of the scribe. Burden to prove cancellation or

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RSA No.213 of 1987 (O&M)

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destruction of Will with a view to cancel the same was on the defendants and no inference could be drawn to that effect. Father of the plaintiff Ajit Singh was living in the village and testator had cordial relations with him and there could be no occasion for change of mind to cancel the Will. Reliance has also been placed on judgment of the Hon’be Supreme Court in Durga Parshad v. Debi Charan and others , AIR 1979 SC 145 and judgment of this Court in Nishabar Singh v. Local Gurdwara Committee Manji

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Sahib, Karnal and another, AIR 1986 Punjab and Haryana 402 to submit that if due execution of the Will was proved, presumption of cancellation of Will could be rebutted by slightest possible evidence direct or circumstantial. In any case, if the Will was duly executed, mere fact that the same could not be produced, was of no consequence and the same should have been given effect to.

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Question for consideration is whether finding of the lower appellate court is a finding of fact based on evidence or whether any substantial question of law arises.

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Reasons recorded by the lower appellate court, inter-

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alia, are:-

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a) Original Will was not produced without any valid reason;

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b) The plaintiff and his attorney kept quiet for

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more than three years after the death of the testator

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RSA No.213 of 1987 (O&M)

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and neither reported the loss of the Will nor took any further steps for giving effect thereto;

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c) Plaintiff and defendant Nos. 10 and 11 were abroad and were not rendering any service to the plaintiff who was living with the defendants. Recital in the Will to that effect was erroneous; d) Due execution of Will was not proved in absence of satisfactory evidence thereof;

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e) There was no reason to exclude nearer relations.

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Above reasons given by the lower appellate court are possible reasons for not believing the Will set up by the plaintiff. Submissions of learned counsel for the appellant do not make out a case of perversity.

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In view of above, no substantial question of law arises. 14. The appeal is dismissed.

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November 10, 2009 (Adarsh Kumar Goel) ‘gs’ Judge

(O&M) Nirmal Singh etc. v. Pargan Singh etc.

Case brief

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(O&M) Nirmal Singh etc. v. Pargan Singh etc.

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