Dismissed

Bukan Singh v. Pakhar Singh

Punjab & Haryana HC16 Jan 2009RSA/658/1989

Case brief

AI extract

What is this about?

In a second appeal regarding a suit for declaration and injunction based on a Will executed by Jagtar Singh, the High Court affirmed the lower courts' dismissal of the appeal due to failed proof of Will execution. The courts below found suspicious circumstances including ink differences and contradictory testimonies, leading to a rejection of the propounder's case on natural succession.

What the court decided

AI extract

Bukan Singh Vs Pakhar Singh — Succession and Inheritance | Punjab & Haryana HC (2009)

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RSA No.658 of 1989

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.658 of 1989

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Date of Decision: 16.01.2009

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Bukan Singh (dead through L.Rs.)

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..Appellant

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Vs.

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Pakhar Singh (Dead through L.Rs.) & Anr.

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..Respondents

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Coram: Hon'ble Mr. Justice Vinod K.Sharma

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Present: Mr.G.K.Chawla, Advocate, for the appellants.

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Mr.Bhag Singh, Advocate, for the respondents.

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Vinod K.Sharma,J. (Oral)

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This regular second appeal is directed against the judgments and decree dated 14.2.1985 and 6.9.1988 passed by the learned courts below vide which suit filed by the plaintiff-appellant for declaration and injunction on the basis of Will said to have been executed by Jagtar Singh has been ordered to be dismissed.

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The plaintiff/appellant instituted a suit for declaration and

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RSA No.658 of 1989

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injunction on the allegations that land measuring 9 kanals 16 marlas fully described in the head-note of the plaint situated at village Nawanpind Jattan Tehsil Nakodar District Jalandhar was owned and possessed by Jagtar Singh.

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Plaintiff claimed that Jagtar Singh deceased was living with the plaintiff and was being looked after by him. Jagtar Singh was issueless and he executed a valid Will dated 18.6.1982 in favour of the plaintiff thereby bequeathing his entire estate including the land in dispute in favour of the plaintiff.

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Jagtar Singh died on 28.6.1982 and since the date of his death the plaintiff was in possession of the land in suit as owner on the basis of Will dated 18.6.1982. It was claimed that the defendants i.e. other legal heirs of Jagtar Singh wanted to dispossess the plaintiff from the land in dispute on the allegations that mutation to the extent of 2/3^rd share stood sanctioned in favour of the defendants qua the estate left by Jagtar Singh.

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The suit was contested by the defendants wherein a preliminary objection was taken that the plaintiff had not come to the court with clean hands. The plaintiff was said to be neither the owner nor in possession of the property. It was also claimed that Jagtar Singh had not executed any Will and if any Will is on the record the same is the outcome of fraud, misrepresentation, concealment of material facts and not a genuine document and therefore, not binding on the rights of the defendants. It was claimed that the mutation was rightly sanctioned.

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On the pleading of the parties the learned trial court was pleased to frame the following issues:-

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RSA No.658 of 1989

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Whether Jagtar Singh executed a valid Will dated 18.6.1982 in favour of the plaintiff, who is in possession thereof as owner? OPP

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Whether the plaintiff is estopped to file the suit by his act and conduct? OPD

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Whether by way of alternative relief, the plaintiff is entitled to the joint possession of the land? OPP

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Relief.

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The main dispute between the parties was resting on the Will dated 18.6.1982, certified copy of which was produced on the file as Ex.P.2. In support of the Will the plaintiff/appellant produced Karam Singh as PW 3 and Devinder Singh as PW 4, who was scribe of the Will as well as Ajit Singh PW5, member Panchayat, the other attesting witness of the Will.

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The learned trial court was pleased to hold that the plaintiff was bound to prove not only due execution of the Will but also the fact that the deceased was in sound disposing state of mind and the statement was also required to fulfill the ingredients of Section 63 of the Indian Succession Act regarding the execution of the Will. The learned trial court observed that he was also bound to remove all reasonable doubts concerning the Will. Learned lower appellate court court found that the Will was surrounded by the following suspicious circumstances.

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“ (i) The date 18.6.1982 is written in a different ink than the body writing. Where the ink is different, it is suspicious circumstances as laid in AIR 1986 Bombay 566.

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(ii) Karam Singh PW 3 is the attesting witness of the Will

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RSA No.658 of 1989

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and the mutation of inheritance of Jagtar Singh deceased was got incorporated with the Patwari-Halqa at the instance of Karam Singh himself on 1.9.1982.

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Had the document been in existence on 1.9.1982 and Karam Singh being a witness to the document, there was no question of his approaching the revenue authorities and getting the mutation entered on the basis of natural succession.

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(iii) The Will is not written by a regular deed-writer Dharam Pal PW 4 is not a regular deed writer. The will is purported to have been written in the village.

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Although it is not the Sine Qua Non of Law that Will must be scribed from a regular deed Writer or it should be got registered. However, getting the solemn document like the Will executed from a regular deed writer and getting the same registered, gives sanctity to the document. In the present case, the appellant was general attorney of the deceased. The Photostat copy of the power of attorney shows it was registered on 30.11.1976. The factum of the deceased having executed a general power of attorney in favour of the appellant from a regular deed writer and getting the same registered goes to show that the deceased was well conversant with the legal proposition and when he had given the general power of attorney duly registered from the office of the Sub registrar,there was no reason for the deceased to have got scribed the solemn document like the Will in his village in

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RSA No.658 of 1989

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favour of the appellant; The scribing of the Will by Dharam Pal PW a lay man, under the circumstances casts doubt and is contrary to the natural conduct and human probabilities as discussed above.

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(iv) The Will contains thumb impression of the deceased. At the cost of repetition it may be observed that the original power of attorney duly executed by deceased was in possession, power and control of the appellant. He had not intentionally produced the original in the trial court, rather the certified copy of the same was produced as Mark A. It is the ardent of the propounder to prove the execution of the Will. The science of thumb impression is an exact science. When the plaintiff/appellant was in possession of a registered document containing the thumb impression of the deceased, it was the duty of the plaintiff to have got compared the thumb impression of deceased Jagtar Singh on the Will with the registered power of attorney. The withholding of the registered power of attorney by the plaintiff and producing certified copy thereof is a highly dubious circumstances, speaking against the conduct of the plaintiff/appellant.

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(v) Karam Singh, Devinder Pal Singh and Ajit Singh had appeared as witnesses before the Assistant Collector Ist Grade in the mutation proceedings which was contested one and their statements in the suit suffer from material discrepancies have been fully detailed in the judgment of the lower court.

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RSA No.658 of 1989

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(vi) The Will is contained at one page and under the body writing, there is only the signatures of the scribe. The thumb impression as well as the attestation of both the witnesses is on the left hand side of the paper. Execution thus is not proved.”

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The learned court observed that in present case it was not proved on record that the Will was signed by the executant in the presence of the attesting witnesses and that each of the witnesses had signed in the presence of the testator as required under Section 63 of the Indian Evidence Act. Thus, the learned court was pleased to decide issue No.1 against the plaintiff/appellant and consequent thereto the suit was ordered to be dismissed.

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The findings of fact recorded by the learned trial court stand affirmed by the learned lower appellate court.

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Learned counsel for the appellant vehemently contends that the findings recorded by the learned courts below cannot be sustained as suspicious circumstances pointed out could not be a ground to reject the Will which otherwise was proved to have been executed by the deceased Jagtar Singh as proved by the attesting witnesses as well as the scribe of the Will.

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However, this contention of the learned counsel for the appellant cannot be accepted. The learned courts below rightly observed that date on the Will is in different ink than that of the body, which was a strong suspicious circumstance. It may further be noticed that the Will was executed at very early age of the executant still the same was not got registered for the reasons best known to the parties.

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RSA No.658 of 1989

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Karam Singh, one of the attesting witnesses, was said to be interested party as he helped the plaintiff/appellant in getting mutation sanctioned.

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The learned courts below were, thus, fully justified in disbelieving the statement of Karam Singh PW 3 in view of his participation in getting mutation sanctioned in favour of the natural heirs.

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Learned lower courts were justified to come to a conclusion that in case the said Will attested by Karam Singh was in existence, there was no reason for him to participate in getting the mutation sanctioned in favour of all the natural heirs.

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The learned courts below held that the Will was not written by the regular deed writer as PW 5 was not shown to be a regular deed writer. The court further observed that the Will was thumb marked whereas the plaintiff was in possession of the power of attorney executed by the deceased which was intentionally not produced which was a registered document.

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The learned courts below, therefore, rightly observed that it was for the plaintiff to have got thumb marks compared with the registered document i.e. the power of attorney which was in possession of the plaintiff/appellant. The learned courts held that Karam Singh, Devinder Pal and Ajit Singh had appeared before the revenue court in mutation proceedings where the stand was different to the one taken in the court. The learned courts below also observed that the format of Will also raised suspicion.

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Both the courts below recorded a concurrent finding of fact

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RSA No.658 of 1989

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that the Will procured by the plaintiff/appellant was not a genuine document, therefore it was held that the mutation sanctioned as per natural succession was a valid document and the declaration claimed by the plaintiff thus was rightly rejected.

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Learned counsel for the appellant pointed out that one of the natural heirs through her legal representatives has entered into a compromise with the appellant and therefore, has offered to surrender her share in favour of the plaintiff/appellant.

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Learned counsel for the appellant contends that the substantial question of law for consideration of this court in this appeal is:

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“Whether the judgment and decree is outcome of misreading of evidence on record, thus, perverse?

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However, it may be noticed that the findings have been recorded on appreciation of evidence which cannot be said to be perverse or the outcome of misreading of evidence.

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This court in regular second appeal cannot reappraise the evidence and come to a different conclusion in the absence of proof of misreading of evidence by the learned courts below or the finding being perverse.

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Thus, the substantial question of law as claimed by the plaintiff/appellant deserves to be answered against him.

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No merit.

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Dismissed but with no order as to costs.

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16.01.2009 (Vinod K.Sharma) rp Judge

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RSA No.658 of 1989 9

Bukan Singh v. Pakhar Singh

Case brief

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What the court decided

Bukan Singh v. Pakhar Singh

Case brief

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