Dismissed

Charan Singh and Ors. v. Ranjit Singh and Ors.

Punjab & Haryana HC12 Feb 2014RSA/2625/1985

Case brief

AI extract

What is this about?

Appellants appealed against a decree dismissing their suit for declaration and joint possession of land, defeated by a Will the lower court upheld. The High Court dismissed the appeal, sustaining the finding that the Will was genuine and executed with due solemnity, noting appellants failed to prove incapacity or establish suspicious circumstances beyond the beneficiary's presence.

What did the court decide?

The Regular Second Appeal stands dismissed with no order as to costs.

Charan Singh and Ors. Vs Ranjit Singh… — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No.2625 of 1985

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.2625 of 1985

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Date of Decision : 12.2.2014

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Charan Singh and others

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.....Appellants

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Vs.

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Ranjit Singh and another

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......Respondents

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CORAM : HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present : Mr. D.V. Sharma, Sr. Advocate with Ms. Madhu Sandhu, Advocate for the appellants. Mr. G.S. Punia, Sr. Advocae with Ms. Mandeep Kaur, Advocate for the respondents.

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RAMESHWAR SINGH MALIK, J

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Plaintiffs are in appeal, against the judgement of reversal, whereby judgement and decree dated 27.10.1983 passed by the learned trial court decreeing the suit of the plaintiffs, was set aside allowing the first appeal of the defendants-respondents, in a suit for declaration and in the alternative suit for joint possession.

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Brief facts of the case are that the present suit was filed by the plaintiffs for declaration to the effect that they were in possession of the suit land. In the alternative, they sought a decree for joint possession. It was pleaded case of the plaintiffs that Harnama S/o Hamira was owner of the suit land. Plaintiff nos.1 to 3 and defendant no.1 were his sons. Plaintiffs no.4 and 5 were his daughters and plaintiff no.6 was his widow. It was further pleaded that defendant no.1 Ranjit Singh allegedly got executed a Will in his favour

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from Harnama-deceased to the extent of one half share. It was asserted by the Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2625 of 1985 2

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plaintiffs that the Will dated 16.7.1979 Ex.D-1 was unregistered, fictitious and forged document, because Harnama was not in sound disposing mind to execute the Will. Plaintiffs were in joint possession of the suit land and in case during the pendency of the litigation, they are found to be out of possession, then they were entitled to a decree of joint possession.

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Defendants were put to notice. Defendants no.1 and 2 contested the suit. Plaintiffs withdrew their suit and the same was dismissed as withdrawn vide order dated 16.10.1982 against defendants no.3 to 5. Defendants no.1 and 2 took more than one preliminary objections in their written statement, including that of locus-standi to file the present suit, it was not maintainable in the present form, suit was not properly valued for the purpose of court fee and jurisdiction and the suit was barred by limitation. On merits, it was admitted that suit land was owned by Sh. Harnama. It was alleged that Harnama executed a valid Will in favour of defendant no.1 to the extent of one half share. Remaining one half share was given to plaintiffs no.1 to 3 and 6. Harnama was not in unsound disposing mind at the time of execution of Will. Earlier, Harnama purchased 7 acres of land, which was given to plaintiffs no.1 to 3. Accordingly, as per his last desire, Harnamadeceased thought it appropriate to compensate defendant no.1 by giving him 18 kanals of land, out of his holdings. The Will was claimed to be genuine and authentic document. Mutation was rightly sanctioned on the basis of Will, which was not challenged by the plaintiffs. Denying other averments of the plaint, dismissal of the suit was prayed for.

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On completion of pleadings of the parties, the learned trial court framed the following issues :-

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“1. Whether Harnama deceased executed a valid will

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2625 of 1985

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dated 16.7.1979 in favour of the plaintiff and defendant no.1 ? OPD.

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Whether the plaintiffs are in possession of the suit land as owner ? OPP.

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Whether the suit is not maintainable in the present form ? OPD.

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Whether the plaintiffs have locus standi to file the present suit ? OPP.

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Whether the suit is not properly valued for the purposes of court fees and jurisdiction ? OPD.

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Whether the suit is not within time ? OPD.

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Relief.”

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In support of their respective stands taken, both the parties led their oral as well as documentary evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that the plaintiffs have proved their case. Accordingly, the suit was decreed vide judgement and decree dated 27.10.1983. Feeling aggrieved, defendants filed their first appeal, which was allowed by the learned Additional District Judge, Ludhiana, vide judgement and decree dated 31.5.1985 dismissing the suit of the plaintiffs by setting aside the above said judgement and decree passed by the learned trial court. Hence, this appeal at the hands of the plaintiffs.

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Learned senior counsel for the plaintiffs submits that the learner lower appellate court failed to appreciate the true facts of the case as well as the evidence available on the record, in the correct perspective because of which the impugned judgement and decree passed by the learned Additional

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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District Judge, Ludhiana, were liable to be set aside. He submits that Harnama resided with Joginder Singh before his death. Defendant-respondent no.1 Ranjit Singh was residing separately. The Will dated 16.7.1979 Ex.D-1 was unregistered and was surrounded by numerous suspicious circumstances. The Will seems to have been written by the regular Deed Writer. Scribe of the Will has deposed that Ranjit Singh was present at the time of execution of the Will. This itself was a suspicious circumstance to discard the Will. As per the expert report proved by the handwriting and finger print expert, thumb impression of Harnama on the disputed Will did not tally with his admitted thumb impressions. These facts and evidence were rightly appreciated by the learned trial court, while decreeing the suit of the plaintiffs-appellants. In his endeavour to show that the Will in question was not a genuine and authentic document as well as due execution thereof was not proved, learned senior counsel places reliance on the following judgements :- H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others , AIR 1959 S.C. 443, Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, 1962 AIR (SC) 567, Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and others, 1968 AIR (SC) 1332, J aswant Kaur Vs. Amrit Kaur, 1977 PLJ 54, Bhagwan Kaur Vs. Kartar Kaur , 1994(5) SCC 135, Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar, 1995 (5) SCC 215, Joseph Antony Lazarus (Dead) by LRs Vs. A.J. Francis , 2006 AIR (SC) 1895, Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others, 2007 AIR (SC) 614, Savithri and others Vs. Karthyayani Amma and others, 2008 AIR (SC) 300, Benga Behere and another Vs. Braja Kishore Nanda and others, 2007 AIR (SC) 1975, Amar Singh and others Vs. Ranjit Kaur and others , 2000(2) HLR 331, Jang Bahadur and others

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2625 of 1985

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Vs. Manjit Kaur, 2009(3) RCR (Civil) 25, Jai Singh Vs. Bhim Singh, 2001 (4) RCR (Civil) 388 and Labh Kaur Vs. Gurmail Singh, 2013 (4) Civ CC 436. Finally, he prays for setting aside the impugned judgement and decree passed by the learned lower appellate court, by allowing the present appeal.

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Per contra, learned senior counsel for the respondents submits that none of the judgements were applicable to the facts of present case. During his life time, Harnama purchased 7 acres of land, which was given to the plaintiffsappellants. Mutation dated 25.2.1980 was sanctioned in favour of the appellants. This arrangement was based on the mutual understanding of all members of the family. With a view to compensate defendant-respondent no.1 Ranjit Singh, Harnama executed the Will, which was the result of peculiar facts and circumstances of the case. Harnama had total land measuring 92 kanals. According to the Will, all the sons of Harnama got equal share in the land left behind by their father. The Will was admitted by the plaintiffs during mutation proceedings. The Will was a natural, genuine and authentic document. Requirement of Section 68 of the Indian Evidence Act was duly complied with and due execution of the Will stood established on the record. A combined reading of the statements made by attesting witnesses of the Will, as well as that of scribe would show that execution of Will was duly proved. After the mutation was sanctioned by the competent revenue authority, on the basis of the Will in question in favour of contesting defendants, plaintiffs did not challenge the same. Even the suit was filed after more than two years after sanctioning of the mutation. The expert report was totally unreliable document, because the expert did not disclose the source of photographs of the thumb impressions of Harnama on the Will, as well as on other documents for the purpose of comparison thereof. Mere presence of a beneficiary was in

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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RSA No.2625 of 1985

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itself not a sufficient reason to discard the Will. Relying on the following judgements, he prays for dismissal of the appeal ; Sunehri and another Vs. Lala Ram (deceased) through his LRs and others , 2005(2) ILR Punjab and Haryana 245 and Smt. Malkani Vs. Jamadar and others, 1987 AIR (SC) 767.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that present one is not a fit case for interference at the hands of this court. The impugned judgement has not been found to be suffering from any infirmity or illegality and the same deserves to be upheld. To say so, reasons are more than one, which are being recorded hereinafter.

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It is a matter of record and not in dispute that total land owned by Harnama, predecessor-in-interest of both the parties to this litigation, was 92 kanals. It is also not disputed either on record or even during the course of hearing of this appeal that if the Will in question is executed, all the sons of deceased Harnama would get almost equal share in the land left behind by their father. Before proceeding further, it is pertinent to note that defendants set up this very Will dated 16.7.1979 Ex.D-1, during the mutation proceedings. Initially, objection was raised by the plaintiffs. However, later on plaintiffs stated that they have no objection in sanctioning the mutation as per the Will. Mutation No.8602 was accordingly sanctioned by Assistant Collector, Ist Grade, vide his order dated 25.2.1980 Ex.D-2. The documents pertaining to this mutation are available on record. Entry of mutation (Ex.P-1) page 42, order dated 25.2.1980 passed by Assistant Collector, Ist Grade, Jagraon page 48 Ex.D2 (sanction of mutation) and page 49- two orders dated 22.12.1979 and

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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25.2.1980 passed by Assistant Collector, 2^nd Grade, Jagraon.

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A bare combined reading of the mutation proceedings would make it crystal clear that initially the proceedings were initiated at the instance of defendant-Ranjit Singh seeking mutation on the basis of Will. If there would have been no objection for sanctioning the mutation on the basis of Will, Assistant Collector, 2^nd Grade, Jagraon would have been the competent officer to sanction the mutation. However, since the plaintiffs raised objection to the authenticity of Will, mutation became contested. Once the mutation became contested, Assistant Collector, 2^nd Grade has to refer the matter to the Assistant Collector, Ist Grade, who is the competent authority to sanction the contested mutation. It seems that after raising their objection before Assistant Collector, Ist Grade, plaintiffs realised that since they have already got the land to the extent of their share, they reconciled and did not press their objection before the Assistant Collector, Ist Grade, Jagraon. Accordingly, the mutation no.8602 Ex.D-2 was sanctioned as per the Will.

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Even thereafter, plaintiffs did not challenge the mutation sanctioned on the basis of Will for a period of 2 years and 3 months, because the suit came to be filed on 25.5.1982. Further, since the plaintiffs accepted the Will and did not press their objection in the mutation proceedings, they did not challenge the above said order dated 25.2.1980 passed by Assistant Collector, Ist Grade, Jagraon, by filing an appeal before the Collector. This conduct of the plaintiffs would clearly make out that filing of the present suit was nothing but an after thought only because of their malafide intention. The plaintiffs were proceeding in furtherance of their common malafide intention with a view to grab the share of defendant no.1, in the land left behind by their father. Having said that, this court feels no hesitation to conclude that the

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Sahni Greesh 2014.05.01 15:01 I attest to the accuracy and integrity of this document High Court, Chandigarh

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learned lower appellate court committed no error of law, while passing the impugned judgement and the same deserves to be upheld.

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Coming to the issue of due execution of the will, when the matter is considered keeping in view the totality of peculiar facts and circumstances of the case discussed herein above, hardly any scope for doubt is left that Harnama has executed a natural and genuine Will, so as to compensate his son Ranjit Singh-defendant no.1 to bring him at par with his other sons i.e. the plaintiffs. If the testator on the eve of his life, thought it appropriate to ensure equal distribution of his property amongst his sons, nothing unnatural can be read into the Will of such a testator. That is what has been done by late Sh. Harnama in the present case.

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Further, this court has found merit in the contention raised by learned senior counsel for the respondents that requirements of law with special reference to Section 68 of the Indian Evidence Act have been meticulously complied with in the present case. One attesting witness i.e. Mukand Singh, Lambardar appeared before the Assistant Collector, 2^nd Grade in the mutation proceedings. Other attesting witness of the Will namely; Amar Singh appeared in the court as DW-3. Scribe of the Will also appeared before the court. In this view of the matter, it is unhesitatingly held that due execution of the Will has been established on record by leading sufficient, cogent and well convincing evidence. Since the learned trial court fell in serious error of law while discarding the Will, learned Additional District Judge rightly set aside the judgement rendered by the learned trial court, while passing the impugned judgement, which deserves to be upheld.

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So far as the judgements relied upon by the learned senior counsel for the appellants are concerned, there is no doubt about the law laid down

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therein. However, on deeper consideration of the issue of authenticity and genuineness of the Will in the given fact situation of the present case discussed herein above, there is no room for doubt that none of the cited judgments are of any help to the appellants, because the same are distinguishable on facts. It is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others , 2002 (3) SCC 533.

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Coming to the argument of learned senior counsel that since defendant-respondent no.1 Ranjit Singh was present at the time of execution of the Will and that itself was a sufficient ground to discard the Will, the same has been found without any force. Although, active participation of Ranjit Singhdefendant-respondent no.1 has not been pleaded and proved in the present case, yet his presence is also undisputed. However, mere presence of the beneficiary of the Will itself will not be a sufficient ground to come to a conclusion that the Will was surrounded by suspicious circumstances, particularly when due execution, genuineness and authenticity of the Will has been proved by cogent evidence, available on the record. This view taken by the court also finds support from the judgement of the Hon'ble Supreme court in Smt. Malkani's case (supra) and the relevant observations made by the Hon'ble Supreme Court in para 3 of the judgement, which can be gainfully followed in the present case, read as under :-

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“ 3. After hearing the learned counsel at considerable length, we find it difficult to interfere with the findings of

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RSA No.2625 of 1985

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fact reached. There is no dispute with the proposition laid down in the case relied upon, but the difficulty is about its application to the facts and circumstances of the present case. The learned Additional District Judge had taken the care of observing that the only circumstance brought out was that the defendants who were the beneficiaries under the will, Exh. D-1, had taken an active part in its execution. But he rightly observed that, that by itself was not sufficient to create any doubt either about the testamentary capacity of Mst. Pari or the genuineness of the will. It is quite evidence that the testatrix was determined in bequeathing the property to her husband's brother's sons to the exclusion of the plaintiff. It is brought out in evidence that the plaintiff had on July 25, 1972 made a report to the Tehsildar alleging that her mother Mst. Parti had been abducted by the defendants and that they were about to get a conveyance executed by her in their favour. Thereafter on August 23, 1972 i.e. just a day before the execution of the will, she instituted a suit being Civil Suit no.491/72 claiming a declaration of her title as against her mother Mst. Pari. These circumstances taken together clearly give rise to an inference that the plaintiff knew that her mother was about to execute a will and she tried to prevent her from doing so. But this did not prevent Mst. Pari from executing the will on the next day. After the execution of the will, Mst. Pari admittedly came and lived with the plaintiff till her death on January 1, 1973. If the

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allegation that the defendants had procured the will by fraud were to be believed, it was but expected, according to the ordinary course of human conduct, that Mst. Pari would have made a report to the authorities against the defendants or revoked the will. The fact remains that she did not execute another will during her lifetime. This evidently shows that the will, Exh.D-1, was a genuine will and was intended to be acted upon.”

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So far as the sound disposing mind of testator late Sh. Harnama was concerned, no such evidence was brought on the record by the plaintiffsappellants to prove the alleged mental incapacity of Harnama at the time of execution of the Will. Similarly, the Will being unregistered cannot be said to be a reason for suspecting the same. After going through the language of the Will used by the testator, this court is of the definite opinion that the Will in question was natural, genuine and authentic, conveying the true Will of the testator. Once the plaintiffs alleged and asserted that Harnama-deceased was not enjoying sound disposing mind at the time of execution of the Will, onus was on the plaintiffs to prove it. However, in the present case, they failed to produce any evidence on the record to prove this assertion about the alleged mental incapacity of the testator. The view taken by this court also finds supports from another judicial pronouncement of this court in Sunheri's case (supra).

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There is another important aspect of the matter. Plaintiffs placed heavy reliance on the expert opinion of PW-4. However, a combined reading of the expert report Ex.PW-4/G as well as the statement made by the expert,

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would show that he failed to disclose the source of taking the photographs of thumb impressions of Harnama on the Will in question. In this regard, it is pertinent to note here that original Will was available in the mutation file. DW-1 brought the mutation file, produced the certified copy thereof on the record of the trial court and took away the file, which was never retained in the court. DW-1, DW-2 and DW-3 were examined on the same date i.e. 19.8.1983. Plaintiffs moved an application for permission to take the photographs at a much later point of time i.e. 5.10.1983. This application is available at page 12 of the lower court record. Neither there is any application nor any order available on the case file, which may even remotely suggest that the plaintiffsappellants got the mutation file summoned again and it was actually summoned for enabling the handwriting expert PW-4, to take photographs of thumb impression of Harnama from the disputed Will, for the purpose of comparison thereof with his admitted thumb impression on mortgage deed Ex.P-3. Since the learned senior counsel placed very heavy reliance on this expert report, it was thought appropriate to refer to the above said material facts available on the record. In view of the foregoing discussion, it is held that the expert report and the evidence given by the handwriting and finger print expert PW-4 was not reliable.

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Learned Additional District Judge has recorded cogent findings in this regard in para 14 of the impugned judgement and the same reads as under :-

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“ 14. The last point taken into consideration by the trial court is that the thumb impression is not proved to be affixed by Harnama on the will as compared to the proved thumb impression of Harnama on the mortgage deed Ex.P-2.

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RSA No.2625 of 1985

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The plaintiffs have tried to prove the mortgage deed Ex.P-2 by examining Naranjan Singh (PW-2) and Gajjan Singh (PW-3). There is no original copy of the will on the record nor it is understandable how the thumb impressions were compared on the original will by the Expert and the Expert in his statement as PW-4 has not given the source from where he has compared the thumb impression. Moreover he could not tell whether the disputed thumb impression is of left hand or of right hand and he has not given his definite opinion about it. So when the Expert is not sure whether the thumb impression is of left hand or right hand, his report cannot be taken to be correct.”

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No doubt, onus is always on the propounder and beneficiary of the Will to prove due execution of the Will, by dispelling all the suspicious circumstances. It is equally true that no hard and fast rule or any stage jacket formula can be and should be laid down, pointing out definite suspicious circumstances about the due execution of Will. It is so said because each case is to be decided as per its own peculiar facts and circumstances. So far as the given fact situation of the present case is concerned, defendants-respondents have duly proved the execution, genuineness and authenticity of the disputed Will Ex.D-1. Plaintiffs-appellants also accepted the due execution of Will, while not pressing their objection any further, after the mutation proceedings were referred by Assistant Collector, 2^nd Grade to Assistant Collector, Ist Grade, Jagraon.

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As noticed above, neither the plaintiffs challenged the mutation

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order by way of an appeal before the Collector nor they challenged the same before the civil court for more than two years. Further, in view of the peculiar facts and circumstances of the case as discussed herein above, this court has found that the Will executed by late Sh. Harnama was natural, genuine and authentic, which was aimed at ensuring the equal distribution of the land amongst all of his sons. Learned senior counsel for the appellants could not refer to any other contrary factual aspect or the evidence available on record. Thus, it is held that the learned lower appellate court rightly appreciated the true facts of the case and also the evidence brought on record, while passing the impugned judgement and the same deserves to be upheld, for this reasons also.

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During the course of hearing, learned senior counsel for the appellants failed to point out any jurisdictional error or patent illegality apparent on the face of the case, in the judgement passed by the learned Additional District Judge. He also failed to put into service any substantive argument, so as to convince this court to take a different view than the one taken by the learned lower appellate court, while passing the impugned judgement. Further, no question of law, much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this court, while exercising its jurisdiction under Section 100 CPC, therefore, the impugned judgement deserves to be upheld.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this court is of the considered view that the present appeal is bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.

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RSA No.2625 of 1985

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Resultantly, the instant Regular Second Appeal stands dismissed,

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however, with no order as to costs.

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12.2.2014 (RAMESHWAR SINGH MALIK) GS JUDGE

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