Allowed

Bachan Singh v. Bakhshish Singh

Punjab & Haryana HC1 Dec 2011RSA/451/1985

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a decree confirming a will. It held that the Lower Appellate Court wrongly disregarded a finger print expert report showing the handwriting of an attesting witness matched the will. The Court set aside the lower appellate decree and restored the order dismissing the suit. Quality: ok

What did the court decide?

Appeal allowed, judgment and decree of Lower Appellate Court set aside, Judgment and decree of Trial Court dismissing suit restored.

Bachan Singh Vs Bakhshish Singh — Succession and Inheritance | Punjab & Haryana HC (2011)

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R.S.A.No. 451 of 1985

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A.No. 451 of 1985

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Date of decision: 1.12.2011.

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Bachan Singh and others

Appellants

Versus

Bakhshish Singh

...Respondent

CORAM: HON'BLE MR. JUSTICE G.S.SANDHAWALIA.

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Present: Mr. H.S.Bath, Advocate for the appellant.

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Mr. Veneet Sharma, Advocate for the respondent.

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G.S.SANDHAWALIA, J.

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The present appeal is preferred by the defendants arising out of the judgment and decree dated 23.11.1984 passed by the Additional District Judge, Amritsar; whereby he had allowed the appeal and decreed the suit filed by the plaintiff.

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The fact which are necessary for disposal of the present appeal are that the plaintiff-respondent filed a suit for declaration claiming to be the owner in possession of ½ share of the land measuring 94 kanals 7 Marlas as entered in the Jamabandi for the year 1977-78 situated at village Jalalpura, District Amritsar on the strength of a will dated 29.12.1978 executed by Rattan Singh. The pleadings regarding the suit were that the remaining ½ share of the land was owned and possessed by the plaintiff-respondent and his two brothers Bachan Singh and Darshan Singh and the dispute was only in respect of the share of Rattan Singh

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R.S.A.No. 451 of 1985

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deceased. It was alleged that the brothers of the plaintiff were living in Uttar Pradesh and the sisters of the plaintiff were also living in their in laws house and the plaintiff had been looking after Rattan Singh, who had joint mess and cultivation with him and the plaintiff was serving him. In lieu of the said service, the deceased Rattan Singh had executed a valid will in favour of the plaintiff bequeathing entire movable and immovable property and the defendants have no right or interest in the property. It was further the case of the plaintiff that Rattan Singh died in September, 1979 and the last rites were also performed by him and the deceased had treated him as a son even though by relationship he was his elder brother and being issueless and remained unmarried throughout his life. The mutation No.943 sanctioned in favour of the defendants ignoring the will in question was also challenged being null and void and not binding upon the plaintiff and accordingly, a declaration was sought that he was a sole heir of the deceased Rattan Singh and being in possession was liable for a decree of declaration.

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The said suit was not contested by defendants No.1,4 and 6 but was contested by defendants No.2,3,5 and 7 and in the written statement the execution of the will in favour of the plaintiff was denied and it was the case of the said defendants that the will is a forged document and was not executed by the deceased as he was not having good relations with the plaintiff. The question of any will in favour of the plaintiff did not arise. It was also denied that Rattan Singh had a joint mess with the plaintiff and the case of the defendants was that deceased was living alone and he was served the meals by the defendants.

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Replication was also filed by the plaintiff reiterating his earlier stand. That on the strength of the said pleadings, the following issues were

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R.S.A.No. 451 of 1985

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framed by the Trial Court:-

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“1. Whether the plaintiff is the owner in possession of the suit land?OPP

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Whether Rattan Singh executed a valid will in favour of the plaintiff on 29.12.1978?OPP

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Whether the order of S.D.O.(C) refusing to sanction the mutation on the basis of alleged will in favour of the plaintiff is illegal, null, void and without jurisdiction?OPP

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Whether the plaintiff has locus standi to file the present suit?OPP

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Whether the suit is properly valued for the purpose of court fee and jurisdiction?OPP

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Relief.”

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The Trial Court on examination of the facts came to the conclusion that the will Ex. P1 dated 29.12.1978 was got scribed by the Deed Writer PW-2 Lal Singh at Ajnala in preference to Majitha or Amritsar which were far closer to village Jalalpura as Majitha being 2-3 miles from Jalalpura and Amritsar at a distance of 15 miles. It was also held that the attesting witnesses produced in support of the will, namely, PW-3 Rur Singh and PW-4 Amar Singh were not personally known to Rattan Singh though belonged to the same village and they were concealing the relationship of the parties. It was also held that deceased though was living in the same house but was having separate mess, living and cultivation and defendants were residing in Uttar Pradesh and they had come down to village about 2-3 years back. The other reason that prevailed with the Trial Court was that it had been put to PW-4 Amar Singh that he was the one who had put the finger print on the will and

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R.S.A.No. 451 of 1985

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forged and fabricated the same and his finger print samples had been taken in Court and there was an opinion of the Finger Print Expert, namely, Gurmail Singh from the Phillaur Bureau to prove the fact that the thumb impression on the will had the similarity with the thumb impression on the sample paper and, therefore, it was Amar Singh who had actually thumb marked the will and the same was a forged will. In view of this categorical finding on issues No.2 and 3, the suit of the plaintiff was dismissed.

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The appeal filed by the plaintiff-respondent was accepted by the Lower Appellate Court on the ground that there was evidence of the attesting witness regarding the execution of the will and there was no denial that the deceased Rattan Singh was in sound disposing mind. The factum of residing together with the plaintiff and having a joint Khata also weighed with the Lower Appellate Court, who discarded the report of the expert by holding that there were only eight points of similarity between the disputed thumb impression on the will and that of Amar Singh on the sample paper and the expert Sh. Gurmail Singh, SI had avoided to answer direct questions on the non availability of the core and delta visible in the disputed thumb impression. In sum and substance, the Lower Appellate Court came to the opinion that Finger Print Expert had not given cogent reasons for arriving at its conclusion and the Court could not take the Finger Print report for granted but must examine the evidence in order to satisfy itself that there can be no mistake and the responsibility is greater when there is no other evidence to corrborate the report of the expert. Accordingly, the appeal was allowed and the suit was decreed by holding that the plaintiff was owner in possession of ½ share of the land out of the land measuring 94 kanals 7 marlas situated in village Jalalpura on the basis of will dated 29.12.1978 executed by Rattan Singh in favour of the

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plaintiff and defendants were restrained from interfering in the possession of the plaintiff over the suit land.

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That the defendants filed the present appeal which was admitted for regular hearing. The appeal was allowed on 2.3.2000 by this Court and the suit of the plaintiff-respondent was dismissed. However, vide order dated 15.10.2004 passed in Civil Appeal No.6881 of 2004 arising out of Special Leave to Appeal (Civil) No.13805 of 2000, the Hon'ble Supreme Court was pleased to allow the appeal on the ground that the same had been decided without formulating a substantial question of law and had remitted the aforesaid appeal for fresh decision to this Court.

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That accordingly the counsel for the appellant has formulated the following substantial question of law, which is reproduced below:-

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“Whether the finding of ld. Lower Appellate Court that the will dated 29.12.1978 Ex. P1 was validly executed by Rattan Singh deceased is based on misreading and misappreciation of relevant evidence on record of the case and is in direct violation of settled principle of science of finger print comparison is exact science?

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Accordingly, the counsel for the appellant has argued that the reasoning of the Lower Appellate Court is not justified as the expert opinion could not have been brushed aside and was binding upon the Lower Appellate Court especially in the absence of any other expert evidence to the contrary. Stress was also laid upon the fact that the will had not been executed at Majitha which was nearest Sub Tehsil and the will had been scribed at Ajnala which in normal parlance was a suspicious circumstance. Emphasis was also made on the statement of Lal Singh, Deed Writer, who had deposed that the will was executed on 20.12.1978 in his examination-

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in-chief while appearing as PW-2 instead of 29.12.1998.

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Counsel for the plaintiff-respondent argued that the judgment of the Lower Appellate Court was justified and the report of the expert was not to be taken as gospel truth as the Court has the power to examine the same and it was admitted fact that the plaintiff was serving the deceased and living together whereas the defendants were residing in Uttar Pradesh. The deposition of the Deed Writer regarding the execution of the will on 20.12.1978 instead of 29.12.1978 was a mere typographical mistake, which had never been raked up or brought to the notice of the Trial Court, which could have retained the Register of the Deed Writer, if the entry was on 20.12.1978. Learned counsel further while placing reliance on Smt.

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Kartari (deceased) represented by her legal heirs Ujjagar Singh and others Vs. Gurmel Singh and others 1991(2) R.R.R. 89, Gurdev Singh Vs. Jaljodhan Singh 1999 (4) R.C.R. (Civil) 528 and S.Sundaresa Pai Vs. Mrs. Sumangala T.Pai 2002 AIR (Supreme Court) 554 to contend that once there was sufficient evidence on record that the deceased was residing with the plaintiff and was being looked after him and the attesting witnesses of will had been examined then the execution of will has been rightly upheld. It is further contended that once the Lower Appellate Court has held that the will is genuine then in second appeal it was not appropriate for the High Court to re-appraise the evidence. Reliance was placed on Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar 1995 AIR (SC) 2086 and Gurbaksh Singh Vs. Jagat Singh 1993(3) P.L.R. 687. Regarding the mistake in the register of the Deed Writer reliance was placed on Kashmir Singh Vs. Sucha Singh 1993(1) H.L.R. 691 to argue that it was just a typographical mistake and not sufficient circumstances to hold that will was suspicious. Reference was

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also made on the issue of the expert evidence by citing Ram Chandra Agrawal Vs. Regency Hospital Ltd. & ors. 2010 AIR (SC) 806.

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After going through the record and the evidence of the parties, this court finds that there is sufficient strength in the argument of the cousel for the appellants that the execution of the will by Rattan Singh is shrouded in suspicious circumstances and that the Lower Appellate Court has fallen in error in ignoring the independent report of hand writing expert given by the Finger Print Bureau, Phillaur. It is settled law that the science of finger print comparion is a perfect science and in the present case Amar Singh, who was attesting witness of the will dated 29.12.1978 was specially confronted with the fact that it was he, who had put his finger print as Rattan Singh on the will in question by the counsel for the defendants while being examined. At this point of time, the Court had accepted the request of the counsel for the defendants and taken sample thumb impressions of the left hand of Amar Singh. The sample thumbs impression were sent by the Trial Court for comparison with the will in question to the Finger Print Bureau at Phillaur vide order dated 25.1.1982. The report of the Finger Print Bureau which is signed by the Director Shri Shiv Mohan Singh Bhalla reads as under:-

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“We have compared the finger impressions on the documents noted in the margin received on 16.2.82 from Sh. Surjit Singh, P.C.S., Sub Judge Ist Class, Amritsar in the case of comparison of thumb impression in case-Bakshshish Singh Vs. Darshan Singh vide his memo No..34 dated 13.2.82 and

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A will (X) dated 29.12.78 bearing an impression marked Y.

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A sample paper (Ex. DA) bearing the ten digit impressions of Amar Singh.

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R.S.A.No. 451 of 1985

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are of the opinion that the impression marked Y on the will (X) in partly ink smudged but, otherwise, it is comparable and there exist sufficient (no less than 8) points of similarity i.e. Matching ridge characteristic details in their indentical sequence, without any discordances, between its comparable portion and the corresponding portion of the left thumb impression of Amar Singh marked I on his sample paper vide the reasons given in the enclosed photographic enlargements marked as (Y/Y & I/I) respectively. 8 points of similarlity in their same form and position have been graphically shown on them. The nature, direction and sequence of each point has been indicated in its relevant circle. So many points of similarity cannot be found to occur in the impressions of different thumbs and fingers. These are, therefore, identical or are of one and the same person.

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The documents noted in the margin are returned herewith”

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From perusal of the above report, it would be clear that the expert of the Finger Print Bureau, Phillaur had come to categorical finding that there were as many as 8 points of similarity between the thumb impression on the will and that of the sample given by Amar Singh PW-4. This categorical finding has been wrongly brushed aside by the Lower Appellate Court on the ground that the Court must not take the expert opinion for granted but it must examine his evidence in order to satisfy itself that there can be no mistake and the responsibility is greater when there is no other evidence to corrborate the expert. The Lower Appellate Court came to the conclusion that circumstantial evidence showed the valid

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execution of the will and the fact that Rattan Singh was residing with the plaintiff and having joint mess and cultivation and it would be natural for him to bequeath his property by way of will in favour of the plaintiff.

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This reasoning of the Lower Appellate Court in reversing the well reasoned judgment of the Trial Court cannot be sustained as it is settled principle that the evidence of the Finger Print Expert is a science of exact nature and does not admit any mistake or doubt and it is impossible and highly improbable that a witness who had attested the will, his finger print should tally with that of Rattan Singh. The Hon'ble Supreme Court in Mohan Lal and another Vs. Ajit Singh and another AIR 1978 Supreme Court 1183 observed that an experienced and skilled Finger Print Expert can give his opinion on 8 or even less identical characters in appropriate case with clear and categorical adequate reasons. Reference was made to B.L.Saxena's identification of hand writing, disputed documents, Finger Prints, Detection of Forgeries”, 1968 Edition to hold that six points of similarity of pattern are sufficient to establish the identity of Finger prints. The relevant observations made in the judgment are reproduced below:-

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“45. Nothing substantial has been urged to challenge the opinion of the Director of the Finger Print Bureau, and all that has been argued is that as there were only 8 points of similarity, there was not enough basis for the expert's opinion about the identity of the fingerprints. Reference in this connection has been made to B. L. Saxena's "Identification of Handwriting, Disputed Documents, Finger Prints, Foot Prints and Detection of Forgeries", 1968 Edition, page 247, Walter R. Scott's "Fingerprint Mechanics" page 62, and M. K. Mehta's "The

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Identification of Thumb Impressions and the CrossExamination of Finger Print Experts" 2nd Edition, page 28. We have gone through these books but they do not really support the argument of the learned counsel for the respondent. While referring to the old practice of looking for a minimum of 12 identical characteristic details, Saxena has admitted that the modern view is that six points of similarity of pattern are sufficient to establish the identity of the fingerprints. Walter Scott has stated that "as a matter of practice, most experts who work with fingerprints constantly satisfy themselves as to identity with eight or even six points of identity." Mehta has also stated that in the case of blurred impressions the view of some of the Indian experts is that if there were three identical points, they would be sufficient to prove the identity.

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There is no gainsaying the fact that a majority of fingerprints found at crime scenes or crime articles are partially smudged, and it is for the experienced and skilled fingerprint expert to say whether a mark is usable as fingerprint evidence. Similarly it is for a competent technician to examine and give has opinion whether the identity can be established, and if so whether that can be done on eight or even less identical characteristics in an appropriate case. As has been pointed out, the opinion of the Director of the Finger Print Bureau in this case is clear and categorical and has been supported by

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adequate reasons. We have therefore no hesitation in accepting it as correct.”

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Similar observations also have flown in Jaspal Singh Vs. State of Punjab AIR 1979 Supreme Court 1708. In the present case also there are eight points of similarity and the defendants were very categorical in accosting Amar Singh the witness to the will though there were two other witnesses also, namely, PW-3 Rur Singh and one Pritam Singh, who was never examined. This Amar Singh is a resident of the same village where Rattan Singh and Bakhshish Singh reside and thus was supporting the case of the plaintiff. It is matter of great co-incidence that the needle of suspicion came upon him and his finger print samples were taken by the Court and which have been found to be matching with that on the will which goes on to prove that the will was never executed by Rattan Singh, deceased. Another factor which has been discarded by the Lower Appellate Court is that will was scribed not at Majitha which was 2- 3 miles away where were 2-3 scribes available and neither it was got executed at Amritsar but the same was executed at Ajnala. It was for the plaintiff to show in such circumstances as to why the will was executed at Ajnala in preference to other places which were far closer and once Rattan Singh had executed a will in favour of Bakhshish Singh then why would he go to a far of Tehsil to get the will executed. Infact it seems that the plaintiff was wanting to hide the execution of the will which was thumb marked by Amar Singh and if it had been got written at Majitha, the identity of Amar Singh would have not made it possible as he would have been known by face and name to the Deed Writers at Majitha which was only at a distance of 2-3 miles from the village. Thus, the need to get the will written at Ajnala.

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Another factor is the fact that the Rattan Singh died in September, 1979 almost 9 months after the execution of the will which was written on 29.12.1978 and was admittedly in good health though the wills are not to be registered but Rattan Singh could have easily got registered the will during this period if he wanted to exclude his other relatives. Counsel for the appellant also stressed on the fact that the Deed Writer in his deposition stated that the will was entered in the register on 20.12.1978 at Sr. No.502 whereas it was always the case of the plaintiff that the will had been executed on 29.12.1978. The counsel for the respondent submitted that no question was put to the Deed Writer regarding this discrepancy in the date and it is only a typographical mistake, however, since it was the plaintiff-respondent who was propounding the will, therefore, it was the duty of the counsel for the plaintiff to make sure that the entry in the register was exhibited to show that it was only a typographical mistake to dispel any doubt regarding to as when the will had been written by the Deed Writer at the instance of Rattan Singh who admittedly was not known personally to the said Deed Writer as would be clear from the cross-examination of the said witness. In such circumstances, merely because the plaintiff and the deceased were staying in the same house, though there is a dispute regarding separate kitchen and the other defendants were staying in UP, no inference can be drawn regarding execution of the will in favour of the plaintiff and accordingly, it is held that the Lower Appellate Court violated the settled principle that the science of finger print comparison is a perfect science and wrongly discarded the opinion of the expert. The question of law as formulated above is decided in favour of the appellant. The Lower Appellate Court also failed to take into consideration that the samples were taken in Court

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and sent to Finger Print Bureau at Phillaur and it was not a case where any of the party had hired a Finger Print Expert to give an opinion. The said report was signed by the Director of Finger Print Bureau, Phillaur along with two other experts, namely, Gurmail Singh and Jaspal Singh, who were independent and Gurmail Singh had also been put to lengthy cross examination by the Trial Court at Phillaur on the basis of interrogatories submitted by the plaintiff, which runs into 13 pages and the said expert has withstood the said cross-examination by the Trial Court. The judgments relied upon by the respondent which are mentioned in paragraph 10 are not applicable to the peculiar facts of this case in view of the finding of the expert regarding the similarity of Finger Print of the attesting witness with the deceased Rattan Singh. None of the judgments cited by the respondent contains such peculiar facts and Court upheld the will on the basis of the fact that the execution had been proved by examining attesting witnesses. In the present case, the stand of the defendants right from the start was that the will was forged and it was specifically put to PW-4 Amar Singh that he had put his thumb mark on the same which had been proved on record and, thus, the judgments relied upon by the respondent are not applicable. The power of the High Court to set aside the finding in Second Appeal cannot be curtailed or whittled down since there are no concurrent findings of fact and the First Appellate Court has reversed the judgment of the trial Court which had dismissed the suit and secondly since a perverse view had been adopted by the Lower Appellate Court, it is always open to the High Court to set aside that finding especially when the Lower Appellate Court could not ignore the opinion of the Finger Print Expert which is a binding opinion wherein it had been found that there were eight similarities between the thumb impression of the attesting witness on the

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sample given by him and the thumb impression on the will which had shattered the case of the plaintiff. Accordingly, the present appeal is allowed and the judgment and decree of the Lower Appellate Court is set aside and that of the Trial Court dismissing the suit of the plaintiff is restored.

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December 01, 2012 Pka

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(G.S.SANDHAWALIA) JUDGE

Bachan Singh v. Bakhshish Singh

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Bachan Singh v. Bakhshish Singh

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