Dismissed

Hari Ram etc. v. Shankar etc.

Punjab & Haryana HC8 Aug 2013RSA/2919/1986

Case brief

AI extract

What is this about?

In this second appeal concerning a dispute over property inheritance via unregistered versus registered wills, the High Court dismissed the appeal. The court held that the plaintiffs failed to prove the execution of their unregistered will under Section 63 of the Indian Succession Act, 1925, as required provisions regarding attesting witnesses were not met.

What did the court decide?

Substantial question of law does not arise; judgments and decrees of Courts below are affirmed.

Hari Ram etc. Vs Shankar etc. — Property and Title | Punjab & Haryana HC (2013)

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RSA No.2919 of 1986

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2919 of 1986 Date of decision:08.08.2013

Hari Ram and another

....Appellants

Versus

Shankar and others

....Respondents

CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Present:- Mr. Amit Jain, Advocate for the appellants.

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Mr. Aman Jain, Advocate for respondents No.1 to 7.

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Ms. Sonia G.Singh, Advocate (Amicus Curiae) for the respondents.

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RAKESH KUMAR GARG, J (ORAL)

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This is plaintiffs' second appeal challenging the judgments and decrees of the Courts below, whereby their suit was dismissed.

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As per the pleadings, one Koyal was the owner of the suit property. Plaintiff-appellants are claiming their right in the said property on the basis of an unregistered Will dated 15.12.1977. The appellants are sons of Sheo Lal brother of Koyal's husband Shalu. Whereas defendant-respondents are real daughters and children of daughter of Koyal who have also set-up a registered Will dated 06.02.1975 (Ex.D1) in their favour to claim the property in dispute.

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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Both the Courts below have held that the plaintiffappellants have failed to prove the Will dated 15.12.1977 in their favour whereas execution of Will (Ex.D-1) dated 6.2.1975 in favour of respondent stood proved.

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At the outset, learned counsel for the appellants could not dispute that in the absence of Will Ex.P-1 they cannot challenge the claim of defendants who otherwise succeed to the estate of Koyal on the basis of natural succession even in the absence of Will Ex.D1 dated 06.02.1975.

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To challenge the judgments and decrees of the Courts below, learned counsel for the appellants contends that the evidence has been mis-read and mis-interpreted by the Courts below and even the minor contradictions in the statements of witnesses have been given undue importance for non suiting the appellant and thus, the following substantial question of law arises in this appeal for consideration:-

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“Whether the judgments and decrees of the Courts below are perverse being the result of misreading of the evidence on record?”

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However, on the other hand, counsel appearing on behalf of the respondents has vehemently supported the findings of the Courts below and argued that the Courts below on appreciation of evidence have recorded the findings in their favour and the same cannot be interfered in the second appeal while exercising the power under Section 100 C.P.C.

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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I have heard learned counsel for the parties.

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It would be useful to refer to paragraphs No.11 to 13 of the judgment passed by the First Appellate Court which reads thus:-

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“As already observed above, it is the suit filed by the appellants and they were required to prove the will Ex.P.1 on the basis of which they came to the court for a declaration of their title of ownership and possession. They were required to prove the genuineness of will Ex.P.1 beyond all suspicions. There were three attesting witnesses namely Balbir Singh P.W.4, Nihal Singh and Lal Chand. Nihal Singh and Lal Chand were members of Panchayat. They were not produced by the appellants. The only attesting witness produced by them is Balbir P.W.4 who is ex-Sarpanch. The statement of scribe Sanwat P.W.3 cannot be taken as evidence on an attesting witness as per law laid down by our own High Court cited as Gujar represented by his LRs. Vs. Harbans Singh 1976 P.L.J.342. According to Section 63 of the Indian Succession Act, 1925, the will is required to be attested by two or more witnesses who must have seen the testator sign or affix his mark to the will or has seen some other person signing will in the presence and by the direction of the testator and further each of the witnesses shall sign the will in the presence of the testator. The learned counsel for the respondents led me through the statement of Balbir P.W.4. He has nowhere stated that the witnesses attested the will in the presence and at the instance of Smt. Koyal. Again, why this will Ex.P1 was got written in

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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the village, from a person other than a registered document writer or petitioner-writer. The reason mentioned in Ex.P1 is that she was unable to walk. This is a suspicious circumstances and it has not been cleared. Even the due execution of Ex.P1 is not proved. In cross examination, Sanwat Ram scribe (PW-3) has stated that he had written this will in the house of Hari Ram, Paras Ram (actually his name is Pharma Ram) and Smt. Koyal and he was called by Smt. Koyal from his house. This shows that she was able to walk. Sanwat Ram has further stated that Smt. Koyal told him that she was to get something written. In other words, she did not disclose Sawat Ram has further stated that he had sent his son for summoning all the above witnesses and he accompanied Smt. Koyal to her house. It is not known as to what interest Sanwat Ram had got when he deputed his own son for summoning the attesting witnesses. Sanwat Ram further says that five minutes after their departure, Balbir P.W.4 has come there and five minutes thereafter, the other two witnesses has come. He stated that Smt. Koyal had told him the subject matter and he had written that. He further stated that Smt. Koyal continued scribing the same. Again said, that she told him the subject matter and has scribed the same. Sanwat Ram neither scribed any will earlier to the writing of Ex.P.1 nor after its execution. Balbir P.W4 signed the will with his own pen whereas the other witnesses signed it with the pen with which the will was scribed. Sanwat Ram has also stated that the plaintiffs are not his friends but they are his

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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nephews being of the same village. He stated that he was seeing that Smt. Koyal was in senses and without any pressure from outside on the ground that she had gone to him by walking herself. He further stated that he had been seeing the plaintiffs cultivating the suit land, for the last 25 years. This part of the statement is palpably wrong and against the documentary evidence on the file and even against the stand taken by the plaintiffs themselves. Sanwat Ram denied his knowledge if Smt. Koyal had a joint Khata or separate Khata from others, when cross-examined by defendants No.8 to 12, Sanwat Ram P.W3 stated that Smt. Koyal used to reside with the plaintiffs and her last funeral rights were also performed by them. But no ration card, nor any voters list of Smt. Koyal has been brought on the file. According to Balbir Singh P.W4, the house of Smt. Koyal is adjacent to the house of the plaintiffs whereas Sanwat Ram says that they have the same house with two doors but without common wall. Balbir Singh has also stated that the plaintiffs and their children were away to fields when the will was written. He further added that the house of plaintiffs and that of Smt. Koyal was one and there was not a wall in between. He says that Nihal Singh and Lal Chand reached after his arrival there and the paper for scribing the will was in the hand of Sanwat Ram. He admits that the Girdawari in the village is done according to the spot. He further says that the plaintiffs were cultivating the suit land on behalf of Smt. Koyal during Rabi 81, but that crop was harvested by the plaintiffs. This is not born

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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out from the documents on the file.

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In the face of the above discussion, I hold that Sanwat Ram scribe is unreliable and so is the statement of Balbir Singh PW-4. The learned counsel for the respondents urged that no doubt only one attesting witness can prove the execution of a will but presumption u/s 114 of the Evidence Act be drawn against the plaintiffs/appellants to the effect that had they produced Nihal Singh and Lal Chand, attesting witnesses, they would have deposed against them. In the fact of the discrepant evidence of the scribe and Balbir Singh, I am of the view that this presumption can be and is legally drawn against the plaintiffs/appellants.

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The plaintiffs/ appellants failed to produce any evidence on the file to prove that the thumb impressions of Smt. Koyal on the will Ex. D.1 were not there. On the other hand, the case of the defendants/respondents is that the thumb impression of Smt. Koyal on Ex. P.1 is fictitious. For this purpose, they produced hand writing and finger print expert Sh. Yashpal Chand Jain, D.W.5 who examined the thumb impressions on the will dated 15.12.1977 (Ex.P.1) and compared the same with the thumb impressions of Smt. Koyal on the registered will dated 6.2.75 (Copy Ex.D1). He opined that the thumb impression on the will dated 15.12.77 have not been affixed by Smt. Koyal who affixed her thumb impression on will dated 6.2.75 (copy Ex.D.1). He has given detailed reasons for his opion in his report Ex.DW 5/A, the compared with the help of ablarged photographs. The learned

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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counsel for the appellants raised the objection, as already discussed above, that Smt. Koyal never executed the will Ex. D.1 she was unaware of the that and now she could mention it in will Ex. P.1. To prove the execution of will Ex. D.1 the defendants/respondents have produced Om Parkash petitioner-writer of Ratia (D.W.6). He has stated that he scribed the will dated 6.2.75, copy of which is Ex.D1 at the instance of Smt. Koyal. There were three attesting witnesses of this will out of which Chuni Lal as DW.3 and Chhabila as D.W.4 have been produced. Of course, Jee Sukh has not been produced. Then Gangajal, brother of Smt. Koyal and Rawat were also present, though their attestation is not there on this will Ex. D1. Gangajal has been produced as DW-5. Chuni Lal Dw-3 has stated that he knew Smt. Koyal personally and she executed the will copy of which is Ex.D1 in favour of her three daughters in his presence after admitting the same as correct and at that time, Jee Sukh Lambardar and Chhabila besides the brother of Smt. Koyal were present. He further stated that they all the four had attested this will in the presence of each other. Then this will was read over by the Sub Registrar and Smt. Koyal had thumb marked it in his presence after admitting the same as correct and the witness put their signatures. No doubt, he stated that Smt. Koyal used to observe Parda from him but he denied the suggestion on that account that he did not identify her. Rather, he volunteered to say that he knew her very well. His village is just six miles away from village Mahuwala and his

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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maternal uncle's daughter is married in that village Mahuwala. He has deposed in terms of provisions of Section 63 of Indian Evidence Act. He specifically stated that Gangajal, brother of Smt. Koyal, was very much present and it was he who had brought him from village Kharkhara. He stated that the stamp paper was produced and brought by Smt. Koyal. Chhabila DW-4 another attesting witness, has corroborated him in all particulars. To the same effect is the statement of Gangajal DW.5 the real brother of Smt. Koyal and there is no reason to disbelieve all of them. The thumb impression of Smt. Koyal on the will copy of which is Ex.D.1 has not been challenged in the cross examination of these witnesses. Moreover, the onus to prove their case was upon the appellants and they could get the thumb impressions of Smt. Koyal compared with those available on Ex.D.1. In the previous litigation against Smt. Koyal copy of judgment of which is Ex.PX. The summons must have gone to Smt. Koyal as she was proceeded against ex-parte in that case. It was incumbent upon the appellants to have got thumb impressions of Smt. Koyal on the summons of that file, compared with those on the original of Ex.D.1. Ex.D.1 is a registered document. The contention of the learned counsel for the appellants that that learned lower Court adopted a wrong approach by accepting the will Ex. D1 on the ground that it being registered has also no force. No doubt registration is no guarantee of the genuineness of the will, yet no such inference can be drawn from the impugned judgment, though a

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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little extra stress has been laid by the lower court upon the registration of the will Ex. D.1. The learned counsel for the respondents contended before the lower court that the fact that the will copy of which is Ex. D.1, was executee and got registered by Smt. Koyal is a circumstance which goes to prove its genuineness, besides other evidence led by the defendants and this argument found favour with the learned trial court. He further relied upon the statements of Phusa Ram D.W.2 Chuni Lal DW-3, Chhabila DW-4, Gangajal DW-5 and Om Parkash scribe DW.7. He also rightly concluded that the discrepancies in the statements of these witnesses of the defendants referred to by the learned counsel for the plaintiffs/appellants are minor in nature and such like discrepancies are bound to arise even in the statements of most truthful witnesses especially when their statements are recorded after a lapse of about 9 years or so, and they do not create any suspicious circumstances surrounding the making of this will Ex.D.1. The learned lower Court further referred to the endorsement of the Sub Registrar on the original will dated 6.2.85 in favour of her three daughters were Smt. Koyal was identified by Jeesukh and Chuni Lal witnesses. The thumb impressions and signatures of Smt. Koyal were obtained on the will in the presence of Sub Registrar. The learned trial court satisfied his conscious from the evidence on the file that the will dated 6.2.75 was duly executed by Smt. Koyal.”

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2919 of 1986

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A perusal of the aforesaid paragraphs would show that out of the three attesting witnesses of the Will in question only one witness namely Balbir Singh-PW4 was examined by the appellant to prove the Will Ex. P1 dated 15.12.1977.

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Further, it may be noticed that while non suiting the appellant, the First Appellate Court has clearly noticed that the statement of the attesting witness-Balbir Singh does not satisfy the requirement of Section 63 of the Indian Succession Act, 1925.

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Even the statement of the aforesaid witness was perused by this Court and the counsel for the appellant could not dispute the fact that the said attesting witness to the Will has nowhere stated that either he or other attesting witnesses attested the Will by putting their signatures or thumb impressions in the presence of each other or the executant, as is required under the aforesaid provisions.

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In view thereof, it could not be said that the Will has been proved as per the provisions of Section 63 of the Indian Succession Act, 1925 and thus, no fault could be found with the impugned judgments and decrees passed by the Courts below. Accordingly, the substantial question of law, as raised, does not arise at all.

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Dismissed.

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August 08, 2013 savita

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(RAKESH KUMAR GARG) JUDGE

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Kadian Savita 2013.08.14 12:06 I attest to the accuracy and integrity of this document High Court Chandigarh

Hari Ram etc. v. Shankar etc.

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Hari Ram etc. v. Shankar etc.

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