Punjab-Haryana High Court
Bhagwati Parsad vs Maya Wati on 22 April, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:055148
RSA-2421-1992 & 1
RSA-2422-1992
2024:PHHC:055148
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved on : 12.03.2024
Pronounced on : 22.04.2024
1. RSA-2421-1992
Bhagwati Parsad ...... Appellant
versus
Maya Wati ...... Respondent
2. RSA-2422-1992
Bhagwati Parsad ...... Appellant
versus
Maya Wati ...... Respondent
CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN
Present: Mr. Prateek Gupta, Advocate and
Mr. Prashant Puri, Advocate
for the appellant.
Mr. Amit Jain, Senior Advocate with
Mr. Anupam Mathur, Advocate
for the respondents.
****
PANKAJ JAIN, J. (Oral)
1. These two appeals are between same parties involving same
property arising out of two suits in the background of similar facts and
thus are being decided by a common judgment. The apple of the
dispute is a property left by Shanker s/o Shibu Ram father of respondents
Mayawati and Nirmala-uncle of the appellant Bhagwat Parsad.
2. Shanker was owner of half share of land measuring 81 kanal,
40 marlas situated in revenue estate of village Bhepoli Sub-Tehsil Radaur,
District Kurukshetra and 1/3rd share out of land measuring 04 bhigas and
1 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
12 biswas and a residential house at Munda Majra. Shanker died on
01.09.1981 leaving behind his two daughters-the respondents. His wife
pre-deceased him. The suit property is being claimed by Bhagwat Parsad
who filed suit for declaration with further relief of permanent injunction
propounding an unregistered Will dated 31.12.1980 in his favour to the
exclusion of the respondents. Daughters filed suit for permanent
injunction seeking restrained against Bhagwat Parsad and others from
alienating the suit property on the basis of Will.
3. Prior to filing of the aforesaid suits, the parties fought for
mutation before the revenue authorities. Bhawat Parsad propounded same
Will before the revenue authorities seeking mutation. It was contested by
the daughters. The mutation was sanctioned on the basis of natural
succession in favour of respondents-daughters. WILL was discarded.
4. Trial Court held that the Will stood fully proved and thus
decreed the suit filed by Bhagwat Parsad granting decree of declaration to
the effect that he was owner of the suit property. The other suit filed by
daughters titled as Mayawati and another vs. Bhagwat Parsad bearing
No.370-CS was ordered to be dismissed. The judgment passed by trial
Court was assailed by respondents-daughters by filing two separate
appeals. Appellate Court reversed the findings on the issue of Will
holding the same to be surrounded by suspicious circumstances, thereby
dismissing the suit filed by Bhagwat Parsad and decreeing the suit filed
by respondents-daughters.
5. Counsel for the appellant while assailing the impugned
judgment submits that in order to hold that the Will was surrounded by
suspicious circumstances, the Appellate Court has relied upon statements
2 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
recorded by the revenue authorities during mutation proceedings. It is
being asserted that revenue authorities were exercising administrative
functions and statements made by the parties in the administrative inquiry
which were purely for fiscal purpose cannot be formed basis to reverse a
well reasoned judgment passed by the trial Court. Counsel for the
appellant urges that the Will Ex.P-1 has been duly proved. The scribe
thereof appeared as PW-1. Attesting witness appeared as PW-3, yet the
lower Appellate Court has non-suit the appellant merely on surmises and
conjunctures. Reliance is being placed upon judgment passed by the
Apex Court in B. Venkatamuni vs. C.J. Ayodhya Ram Singh and others
2007 AIR (Supreme Court) 311 and the judgments passed by this Court
in CWP No.13799 of 2010, titled as 'Jagjit Singh vs. Divisional
Commissioner, Patiala & ors.' and CWP No.3934 of 2023, titled as
'Santosh vs. The Financial Commissioner-cum-Secretary to
Government, Department of Revenue and others' to hammer forth the
contention that mutation proceedings are administrative in nature and are
not judicial proceedings.
6. Learned senior counsel representing the respondents submits
that onus to prove the Will is upon the propounder thereof. Will in issue
is unregistered. The Courts are under obligation to look into the
suspicious circumstances pointed out by the defendants. As per settled
law onus lies heavily upon the propounder to remove the suspicion by
leading appropriate evidence. Here is a case wherein the plaintiff i.e. the
propounder of the Will examined attesting witnesses of the Will namely
Babu Singh Lambardar and Ram Kishan s/o Gopi Ram in mututation
proceedings. Despite being closely related to Bhagwat Parsad, they did
3 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
not support the Will. He submits that the only witness examined in the
present proceedings is Basheswar Dutt and his close relation with the
plaintiff-Bhagwat Prasad is admitted. The only independent attesting
witness Babu Singh having been deliberately withheld by the plaintiff, it
is a clear case wherein the statement made by Babu Singh before the
revenue authorities is admissible under Section 33 of the Evidence Act
and has been rightly relied upon by the Courts below. He further submits
that re-appreciating evidence is not within the scope of Section 41 of the
Punjab Courts Act. Since pure findings of facts have been recorded by
Appellate Court, the present appeal deserves to be dismissed.
7. I have heard counsel for the parties and have gone through
the records of the case with their able assistance.
8. The real issue between the parties is Will dated 31.12.1980.
The same has been produced in evidence as Ex.P-1. In order to prove the
same, the plaintiff-appellant examined PW-1 Rajinder Nath Sharma-the
scribe of the Will. Out of the three attesting witnesses namely Babu Singh
Lambardar, Ram Kishan s/o Gopi Ram and Basheswar Dutt s/o Munnu
Ram, Basheswar Dutt was examined as PW-3.
9. The plea raised is that the proceedings before the revenue
authorities are administrative and not judicial and thus statements Ex.D2
and Ex.D3 were not admissible.
10. To appreciate the plea, it will be apt to peruse Section 33 of
the Evidence Act:-
4 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
"33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.
Evidence given by a witness in a judicial proceeding,
or before any person authorised by law to take it, is
relevant for the purpose of proving, in a subsequent
judicial proceeding, or in a later stage of the same
judicial proceeding, the truth of the facts which it
states, when the witness is dead, or cannot be found,
or is incapable of giving evidence, or is kept out of
the way by the adverse party, or if his presence
cannot be obtained without an amount of delay or
expense which under the circumstances of the case,
the Court considers unreasonable :
Provided that the proceeding was between the same
parties or their representatives in interest;
that the adverse party in the first proceeding had the
right and opportunity to cross-examine;
that the questions in issue were substantially the same
in the first as in the second proceeding."
11. A perusal of the provision would reveal that the same talks
of:-
(i) Evidence given by witness in a judicial proceedings;
or
(ii) Evidence given by witness before any person
authorised by law to take it.
12. Evidence given by witness in either of the aforesaid two
situations is relevant in subsequent judicial proceedings for purpose or
providing truth of the facts which it states when;
(i) the witness is dead, or
(ii) the witness cannot be found, or
5 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
(iii) the witness is incapable of giving evidence, or
(iv) the witness is kept out of the way by adverse party, or
(v) if his presence cannot be obtained without an amount
of delay or expenses considered unreasonable by the
Court under the given facts and circumstances.
However, the same can be said to be relevant subject
to satisfaction of the following 3 conditions:
(a) the proceeding was between the same parties or
their representatives in interest;
(b) the adverse party in the first proceedings had the
right and opportunity to cross examine;
(c) the questions in issue were substantially the
same in the first as in the second proceedings.
13. The question thus arises whether statements recorded by the
Assistant Collector while holding inquiry for the purpose of mutation falls
in either of the afore carved categories or not. Trite it is that the mutation
proceedings are not judicial proceedings, thus the statements Ex.D2 and
Ex.D3 do not fall in category(i).
14. But, the revenue officer while deciding mutation proceedings
is the person authorized by law to take evidence. Reason lies in the
provisions of the Punjab Land Revenue Act, 1887 and the rules framed
thereunder. Chapter II of the 1887 Act deals with revenue officers.
Section 6 reads as under:-
"6. Classes of Revenue-officers. - (1) There shall be the
following classes of Revenue-officers, namely : -
(a) the Financial Commissioner ;
(b) the Commissioner ;
(c) the Collector;
(d) the Assistant Collector of the first grade; and
(e) the Assistant Collector of the second grade.
(2) The Deputy Commissioner of a district shall be the Collector
thereof.
(3) The [ State Government ] may appoint any Assistant
Commissioner, Extra Assistant Commissioner or Tehsildar to
6 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
be an Assistant Collector of the first or of the second grade, as
it thinks fit, and any Naib-Tehsildar to be an Assistant
Collector of the second grade.
(4) Appointment under sub-section (3) shall be by notification and
may be of a person specially by name or by virtue of his office
or of more persons than one by any description sufficient for
their identification.
(5) Subject to the provisions of this Act, the jurisdiction of the
Financial Commissioner extends to the whole of the territories
administrated by the [State Government ] of Punjab and of
Commissioners and of Collectors and Assistant Collectors to
the divisions and districts, respectively, in which they are for
the time being employed."
15. Sections 17, 18 and 19 of Punjab Land Revenue Act, 1887
deal with procedure. The same read as under:-
"17. Power to make rules as to procedure: - (1) The [State
Government] may make rules consistent with this Act for
regulating the procedure of Revenue-officer under this Act in
cases in which a procedure is not prescribed by this Act.
(2) The rules may provide, among other matters, for the mode
of enforcing orders of ejectment from, and delivery of
possession of, immovable property, to contempts, resistance
and the like which a Civil and rules providing for these matters
may confer on a Revenue-officer all or any of the powers in
regard Court may exercise in the execution of a decree where-
by it has adjudged ejectment from, or delivery of possession
of, such property.
(3) Subject to the rules under this section a Revenue-officer
may refer any case which he is empowered to dispose of under
this Act to another Revenue-officer for investigation and
report, and may decide the case upon the report.
18. Persons by whom appearances and applications may
be made before and to Revenue-officers: -(1) Appearances
before a Revenue-officer, and applications to and acts to be
done before him, under this Act may be made or done--
(a) by the parties themselves; or
(b) by their recognized agents or a legal practitioner :
Provided that the employment of a recognized agent or
legal practitioners shall not excuse the personal attendance of a
party to any proceeding in any case in which personal
attendance is specially required by an order of the officer.
(2) For the purposes of sub-section (1), recognized agents shall
7 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
be such as the [State Government]may by notification declare
in this behalf.
(3) The fees of a legal pracitioner shall not be allowed as costs
in any proceedings before a Revenue-officer under this Act
unless that officer considers, for reasons to be recorded by him
in writing, that the fees should be allowed.
19. Power of Revenue officer to summon persons: - (1) A
Revenue-officer may summon any person whose attendance he
considers necessary for the purpose of any business before him
as a Revenue-officer.
(2) A person so summoned shall be bound to appear at the time
and place mentioned in the summons in person, or, if the
summons so allows, by his recognized agent or a legal
practitioner.
(3) The person attending in obedience to the summons shall be
bound to state the truth upon any matter respecting which he is
examined or makes statements, and to produce such
documents and other things relating to any such matter as the
Revenue-officer may require."
16. Moreover, the first proceedings as referred to under Section
33 of the Evidence Act necessarily need not be judicial proceedings. Thus,
in view of above, this Court has no doubt that the statements recorded by
revenue officers fall in category (ii) as mentioned in para 15. It is also
not disputed that the issue in both the proceedings was well and parties
were same. The adverse party in the first proceedings had the right and
opportunity to cross examine the witness as well. Coming to satisfaction
of conditions enumerated further in Section 33 of the Evidence Act, both
the witnesses i.e. Babu Singh as well as Ram Kishan were alive. There is
no evidence that they could not be found or any of them was incapable of
giving evidence. There is no evidence that the adverse party i.e. the
plaintiff Bhagwati Parsad kept this aforesaid witnesses out of the way.
Though, senior counsel representing the respondents submits that Ram
8 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
Kishan was related to Bhagwati Parsad but mere relation cannot be said to
be sufficient to infer that Bhagwati Parsad kept Ram Kishan out of the
way. In view of above, counsel for the appellant is right in contending
that the statements made by Babu Singh, Ram Kishan do not satisfy
requirement of Section 33 of the Evidence Act and cannot be held to be
relevant. However, the issue does not stop here.
17. In the present case, propounder of the WILL Bhagwat Parsad
appeared as PW-2. He testified that he does not know where the Will was
got scribed and claimed that he came to know about Will only 2 to 4 days
prior to death of Shankar. He was confronted with his statement before
revenue authorities Ex.D1 wherein he stated as under:-
"When this Will was scribed, I was present. I
asked Rajinder that scribe Will of my uncle."
18. He further stated that he does not remember that in mutation
proceedings he stated that it is my son who called the witnesses. He was
again confronted with his statement wherein he stated as under:-
"Then said Shankar Lal said so. I called
Basheswar. My son brought Ram Kishan and Babu
Singh."
19. Thus this all shows that he had lot more to conceal. His
statement in earlier proceeding points towards his active participation in
execution of WILL. Likewise, it has come on record that the executant
was resident of village Munda Majra whereas the attesting witnesses were
called from village Makaul. That apart Will was executed on 30.12.1980.
Executant died on 01.09.1981. No effort was made in 08 months to get the
Will registered despite the fact that as per the plaintiff, the Will was
9 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
executed in Tehsil complex only.
20. Doctrine of confrontation is a principle recognized under the
Indian Evidence Act in terms of provisions contained under Sections 145
and 155 to unearth truth from witness being examined. After analysing
whole of the evidence on record, the Appellate Court rightly held the
following to be suspicious circumstances surrounding the Will in
question;
(i) Plaintiff in his earlier statement before revenue
authorities admitted his active participation in
execution of Will, but denied even the knowledge of
the Will while appearing in the present suit. On being
confronted with his earlier statement, he could not
afford any explanation and simply denied knowledge
of the earlier statement.
(ii) Daughters-the nature heirs were excluded by
Shankar Lal without giving any plausible reason.
(iii) Bhagwat Parsad-the plaintiff, beneficiary of the
Will was fined for forgery even the date of the death
of executant Shankar Lal.
(iv) Attesting witnesses were called from other
village and are from the village where the executant
as well as the beneficiary were residing.
(v) There was a gap of 08 months between the date
of alleged execution of Will and the death of the
executant. As per the case of the plaintiff, the Will
was executed in Tehsil premises, yet no effort was
made to get the same registered.
21. Appellate Court rightly held that the cumulative effect of the
aforesaid circumstances put the propounded Will under cloud of
suspicion. Onus laid heavily upon the propounder i.e. the appellant to
dispel the suspicious circumstances which he failed to do.
10 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
22. There are certain basic principles of law regarding Will
which have been settled and reiterated by the Courts that need to be kept
in mind:-
(a) Onus to prove a Will is always on the
propounder.
(b) Where there is a suspicious circumstance
pointed out by the opposite party, the onus lies
heavenly upon the propounder to remove the
suspicion by leading appropriate evidence.
(c) While arriving at a finding with respect to
execution of the Will, the Court is thus not only
required to see that the legal formalities have been
proved, but is also required to satisfy its conscience
regarding totality of circumstances.
(d) Section 68 of the Evidence Act postulates the
mode and manner in which execution of a document
is to be proved. If an attesting witness is alive, the
propounder must examine one attesting witness
subject to process of Court and capable of during
evidence.
The list is not exhaustive.
23. The appellant though examined scribe and attesting witness
of the WILL to prove legal formalities but could not dispel the suspicious
circumstances surrounding the WILL.
24. There being no illegality in the impugned judgment, this
Court does not find any reason to interfere in the present appeals. The
same are hereby ordered to be dismissed.
11 of 12
Neutral Citation No:=2024:PHHC:055148
RSA-2422-1992
2024:PHHC:055148
25. A photocopy of this order be placed on the file of other
connected case.
(PANKAJ JAIN)
JUDGE
22.04.2024
Dinesh
Whether speaking/reasoned Yes
Whether Reportable : Yes
12 of 12
