Punjab-Haryana High Court
Smt.Tej Kaur Etc vs Joginder Kaur Etc on 25 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:057768
RSA-2724-1993 (O&M) 1 2024:PHHC:057768
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2724-1993 (O&M)
Reserved on : 09.04.2024
Date of decision: 25.04.2024
Smt. Tej Kaur (since deceased) through her LRs and another
....Appellants
Versus
Joginder Kaur and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Ranjit Saini, Advocate for the appellants
Mr.Viren Sibal, Advocate for the respondents
ANIL KSHETARPAL, J
1. Brief facts of the case:-
1.1 The defendant has filed this Regular Second Appeal
challenging the correctness of the judgment passed by the First
Appellate Court, which in turn has reversed the judgment passed by the
trial court. Resultantly, the plaintiff's suit has been decreed.
1.2 To demonstrate inter se relationship between the parties,
two small pedigree tables alongwith the brief facts are required to be
noticed in order to comprehend the issues involved in the present case.
1.3 Smt. Tej Kaur was previously married to late Sh.Mota
Singh. From the loins of Mota Singh, Sh.Sher Singh was born.
However, after the death of S.Mota Singh, Smt. Tej Kaur married
Sh.Raunak Singh. From the loins of Sh.Raunak Singh, Smt. Tej Kaur
gave birth to five daughters namely Joginder Kaur, Mohinder Kaur,
Jinder/Shinder Kaur, Labh Kaur, Bant Kaur @ Jaswant Kaur:-
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Mota Singh
| Tej Kaur
(remarried Raunak Singh)
______________________
|
Sher Singh
Raunak Singh
|-Tej Kaur (She performed second marriage
after the death of her previous husband
Mota Singh)
_________________________________________________________
| | | | |
Joginder Mohinder Jinder/ Labh Bant Kaur
Kaur Kaur Shinder Kaur @ Jaswant
Kaur Kaur
1.4 On 02.02.1983, Sh.Raunak Singh executed a registered Will
in favour of his wife Smt. Tej Kaur, which was attested by Sh.Prem
Singh, Nambardar and Sh.Santokh Singh, Panch. He died on
07.03.1983. On the death of Sh.Raunak Singh, the entire property was
mutated in favour of Smt. Tej Kaur by virtue of the Will. Sh.Raunak
Singh was owner of two different parcels of land located in village
Kainaur and Burmajra. Smt. Tej Kaur vide registered sale deed dated
27.5.1988, sold land measuring 5 kanals 14 marlas to Bant Singh
(defendant no.3). In the written statement, Smt. Tej Kaur has alleged
that she executed a registered Will in favour of all the five daughters on
04.10.1985. However, it was cancelled on 08.06.1988 as the plaintiffs
misbehaved with her. Joginder Kaur, Mohinder Kaur, Surinder Kaur and
Labh Kaur were married in different villages, whereas, Jaswant Kaur
alias Bant Kaur was married in village Kainaur where Smt. Tej Kaur was
residing. After her marriage, she resided in the same village where her
mother Smt. Tej Kaur used to reside. On 06.06.1988, Jaswant Kaur filed
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a suit for declaration claiming that in a family settlement, the property in
dispute fell to her share. On 14.06.1988, Smt. Tej Kaur filed a written
statement admitting the Jaswant Kaur's case. She also appeared in
evidence and made a statement in the court resulting in judgment dated
14.05.1988, decreeing Jaswant Kaur's suit.
1.5 Remaining four daughters of Sh.Ranauk Singh namely
Joginder Kaur, Mohinder Kaur, Surinder Kaur and Labh Kaur filed a
suit for declaration to the effect that they are owners in possession of
land in both the villages and the decree dated 14.06.1988, is illegal, null
and void and it does not affect their rights and the sale deed executed by
Smt. Tej Kaur in favour of defendant no.3-Bant Singh also does not
affect their rights. Smt. Tej Kaur filed the separate written statements
while contending that the plaintiffs never served their father Sh.Ranauk
Singh and hence, they have no locus standi to challenge either the sale
deed or the decree. On 04.10.1985, she executed a registered Will
bequeathing all her property in favour of her five daughters but due to
the ill-treatment by the plaintiffs, got the Will cancelled on 08.06.1988.
Thereafter, she executed a registered Will on 09.08.1988, in favour of
Jaswant Kaur, who lives with her. The decree passed on 14.06.1988, is
legal and binding on the rights of the plaintiffs. A separate written
statement was filed by defendants no.2 and 3. It was claimed that
Sh.Ranauk Singh executed a registered Will in favour of Smt. Tej Kaur
and she sold 5 kanals 14 marlas to Bant Singh. A family settlement
took place in the year 1985 which due to an inadvertent typing mistake
was wrongly typed as 1975 in the previous plaint. In the aforesaid
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family settlement, the suit property fell to the share of Jaswant kaur @
Bant Kaur, which was acknowledged in the civil court decree. Two
separate replications were filed by the plaintiffs.
2. Evidence produced by the Respective Parties:-
2.1 In order to prove their case, the plaintiffs examined Surinder
Kaur @ Jinder Kaur, one of the plaintiffs.
2.2 On the other hand, defendants examined Sh.Sher singh s/o
of Mota Singh, DW2 Om Parkash Official from the office of Sub
Registrar, DW3 Krishan Chand scribe, DW4 Sh.Prem Singh the attesting
witness of the Will who was also Nambardar of the Village. DW5
Jaswant Kaur and DW6 Bant Singh, Sh.K.S.Mander, Advocate DW7,
who represented Smt. Tej Kaur in the consent decree dated 14.06.1988,
DW8 Gurpal, General power of attorney of Smt. Tej Kaur.
2.3 The trial court dismissed the plaintiff's suit, however, the
First Appellate Court has set aside the same resulting in filing of this
appeal by defendants no.1 and 2.
3. Reasons recorded by the First Appellate Court:-
3.1 The following reasons emerge on analysis of the First
Appellate Court:-
i) The original Will dated 1983 has not been produced by
Smt. Tej Kaur.
ii) Sh.Ranauk Singh did not have a sound disposing mind at
the time of execution of the Will because he died within a
period of five days after executing the Will. If he wanted to
give property to his wife, he could have executed the Will
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much earlier. Thus, the Will is manipulated. Jaswant Kaur
appears to have manipulated the Will because she got
collusive decree from Smt. Tej Kaur.
iii) If Will was executed by Sh.Ranauk Singh willingly then
there was no occasion for Jaswant Kaur or Tej Kaur to
transfer the property in favour of Jaswant Kaur by a
collusive decree.
iv) Presence of attesting witness Sh.Prem Singh at the time of
execution of the Will became doubtful because he has
stated that the Will is written by hand whereas it is typed.
v) Moreover, Sh.Prem Singh has stated that he brought
Sh.Ranauk Singh for execution of the Will. Generally, if
the Will was to be executed by Sh.Ranauk Singh, he would
have himself come to execute the Will.
vi) Sh.Prem Singh has admitted that there is no recital in the
Will with regard to the other daughters.
vii) The original Will must be in possession of Smt. Tej Kaur
but it has not been produced by her.
viii) Gurpal Singh, attorney of Smt. Tej Kaur stated that the Will
was taken by Joginder Kaur which shows that Sh.Ranauk
Singh did not execute the Will in a sound disposing mind.
ix) Smt. Tej Kaur did not appear in evidence.
x) Gurpal Singh is son of Jaswant Kaur. On 28.09.1992, Smt.
Tej Kaur filed an application for recording her statement
that 'Ex.C1' compromise has been effected between the
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parties which was recorded on the same day. She has stated
that no Will was executed by her in favour of Jaswant Kaur
and she did not transfer the property in favour of Jaswant
Kaur. Hence, it is proved that Sh.Ranauk Singh never
executed the Will. Mere registration of the Will does not
prove that the testator was in sound disposing mind while
executing the Will. In the plaint filed on 06.06.1988, it has
been alleged that there was a family settlement between
Jaswant Kaur and Smt. Tej Kaur in the year 1975 whereas
Sh.Ranauk Singh died on 09.02.1983 hence, Smt. Tej Kaur
was not the owner of the property and there was no
question of any family settlement. Sh.A.S.Mander,
Advocate appeared on behalf of Smt. Tej Kaur in the
previous suit. He admitted that the same Clerk scribed the
power of attorney executed by Smt. Jaswant Kaur and Smt.
Tej Kaur. Resultantly, there is collusion. Hence, it is
proved that the decree was obtained by Jaswant Kaur by
misrepresentation and fraud. Smt. Tej Kaur did not
voluntarily suffer the decree because the decree is
collusive.
xi) The sale deed executed in favour of Bant Singh was upheld
and Smt. Tej Kaur was held entitled to 1/6th share. It was
declared that sale in favour of Bant Singh shall be valid to
1/6th share of Smt. Tej Kaur i.e her share in the property.
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4. Arguments put forth by the learned counsel representing the
parties:-
4.1 Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook, alongwith the
requisitioned record.
4.2 At the request of the Court, the learned counsel representing
the parties have filed their respective written notes of submissions,
which are as under:-
"Appellant's submissions:-
The plaintiffs filed appeal before the District Judge, Ropar.
The appeal was fixed for 22.09.1992 when the following
order was passed:-
22.09.1992 Present:- As before
Respondent not served. Respondents 3 to 11 be summoned
on PF and RC for 19.11.1992.
Sd/-
ADJ
Intead of taking the case on 19.11.1992 the matter was
taken on 18.11.1992 and was adjourned to 15.02.1993.
The order dated 18.11.1992 is reproduced below:-
"18.11.1992 Present:- None
Case taken up today as I shall be proceeding for training
from 19.11.1992 to 31.12.1992. Respondents no.3 to 11 be
summoned on P.F. for 15.02.1993"
Sd/-
ADJ
28.09.1992 That one application was filed allegedly on behalf of Tej
Kaur before the Additional District Judge on 28.09.1992
stating that case was fixed on that date but adjourned to
19.11.1992 and file be taken up and statement be recorded
despite the facts that as per zimini orders case was never
listed for hearing on 28.09.1992. Although on the
application there is no clear signature of the counsel but
power of attorney attached with the application shows that
it was filed by one Sh. R.N. Modgil, Advocate who was not
counsel in the main appeal. One compromise allegedly
signed by all the four plaintiffs and Tej Kaur was also
placed on record and the Learned Additional District Judge
on the same day called the file and recorded the statement.
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22.10.1993 The certified copy of the Will was duly proved and with
regard to decree also no material has been brought by the
plaintiffs on the basis of which it could be said that decree
was passed in favour of Jaswant Kaur by playing fraud.
With regard to the Will also the Learned Trial Court has
held that Will has duly been proved. The Appellate Court
while reversing the findings as recorded by the trial court
on the basis of the assumption and presumption and much
reliance has been placed on the statement made by Tej Kaur
before the Additional District Judge, which otherwise could
not have taken into consideration as appearance before the
Additional District Judge on the false Sh.Premises and
when case was not listed for hearing and by engaging new
lawyer create every doubt about her appearance.
Furthermore, the statement made by the person without any
oath and without subject to cross-examination cannot be
taken into consideration as has wrongly been done in the
present case.
The lower appellate courts accepted the appeal
relying upon the statement made by Tej Kaur on 28.09.1992
stating that she entered into compromise with Joginder
Kaur etc. and said that no Will was executed by Raunak
Singh in favour of Tej Kaur as Tej Kaur herself stated in the
court. The Learned Additional District Judge further
illegally held that when Will executed by Raunak Singh has
not been proved, Tej Kaur was not the owner of the property
and could not have suffered the consent decree. The
findings recorded by the Learned Additional District Judge
would shows that whole findings recorded are on just
imagination and unsustainable in the eyes of law. The Will
executed by Raunak Singh was not only proved by the
attesting witnesses of the Will but the certified copy of the
Will was proved by the Registration Clerk DW-2 and DW-1
Sher Singh who is son of Tej Kaur from the earlier husband
further proved that the original Will was in possession of
the plaintiffs.
It is also relevant to mention here that Will was
executed on 02.02.1983 and Raunak Singh died on
09.02.1983. Although the plaintiffs have not brought any
evidence on record to show that Raunak Singh was not
having sound disposing mind but the learned Additional
District Judge, of its own has taken it a ground to hold that
Raunak Singh was not having sound disposing mind as he
died immediately after execution of the Will, despite the fact
that Ranuak Singh was not suffering from any disease. It is
further submitted that Will was executed on 02.02.1983
whereas the decree passed in favour of Jaswant Kaur was
on 14.06.1988. However, the by Learned Additional District
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Judge has recorded the finding otherwise, ignoring the fact
that the plaintiffs have tried to play fraud even before the by
Learned Additional District Judge by getting the statement
of Tej Kaur, recorded secretly and further fabricating a
compromise between the plaintiffs and Tej Kaur in contrary
to the statutory provision for recording such compromise.
Raunak Singh executed the registered will in favour of Tej
Kaur on 2.2.1983 and Tej Kaur suffered a decree in favour
of Jaswant Kaur on 12.8.1988 and therefore the finding
recorded by the Id Additional District Judge that if Raunak
Singh had executed a registered will in favour of Tej Kaur
why there was hurry to get the consent decree by Jaswant
Kaur is also without any basis and thus the judge and
decree passed by the lower appellate court which is an
example of non application of mind having passed without
adjudicating the real controversy is sustainable in the eyes
of law.
Although some more wills and cancellation of will was
allegedly executed by Tej Kaur but none of the parties have
led any evidence and therefore are not necessary to be
discussed which have wrongly been discussed by the
learned Lower appellate court.
4.3 Learned counsel representing the respondent has submitted
as under:-
"Application submitted by Tej Kaur
Tej Kaur (Appellant herein) submitted an application
for recording her statement that compromise has
been affected between the parties. (Kindly refer to
Pg. 37 of the paperbook)
No Will was executed by Ronak Singh
Along with the statement recording compromise, she
also categorically stated that no will was ever
executed by Ronak Singh which forms the basis of the
collusive decree (Kindly refer to Pg. 38 of the
paperbook) Jaswant Kaur (appellant no.2) wanted to
grab the property Ronak Singh and Tej Kaur
(Appellant No. 1) wanted to give the property to the
Respondents and Jaswant Kaur (Appellant No. 2)
orchestrated the fake will as well as the collusive
decree in order to grab the property.
(Kindly refer to Pg. 38 of the Paper Book)
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WILL DATED 02.02.1983 SET ASIDE
Will was executed merely 7 days before the death of
Ronak Singh which makes it suspicious and therefore
the execution of the collusive decree is not possible.
[Kindly refer to Pg. 38 of the Paper Book)
FLAWED REASONING OF SUB-JUDGE, 1ST CLASS,
ROPAR.
The reasoning of the Ld. Sub Judge for justifying the
will is that "no agriculturist in this part of the country in the
heart of his hearts can venture that his land should devolve
upon his son-in-law, and for that reason on any such
outsiders. It is inherent desire of such a person that property
should at least remain in his line of descent. Since he had
no male issue the disposition of property in favour of wife
was quite natural. Further, there is no material on record
that testator was in any manner under the influence of the
defendant Tej Kaur" [Kindly refer to Pg. 56,57 of the Paper
Book!
4. That the above mentioned reasoning is flawed on three
accounts:
Firstly, saying no "agriculturist in this part of the country in
the heart o his hearts can venture that his land should
devolve upon his son-in-law has no legal basis and cannot
be relied upon in proving the registration of a will.
Secondly, there was reason to believe that Tej Kaur was
coerced at the behest of Jaswant Kaur (Appellant No.2)
which becomes evident when the colllusive decree is passed.
Thirdly, Tej Kaur herself states that no will was executed by
Ronak Singh."
5.Analysis of the reasons recorded by the First Appellate Court:-
5.1 Now, the Bench proceeds to discuss the reasons recorded by
the First Appellate Court.
5.2 The First Appellate Court's reason no.(i) lacks substance. It
is the specific case of Smt. Tej Kaur and Jaswant Kaur that the original
Will dated 02.02.1983, is in possession of the plaintiff no.1 Joginder
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Kaur. This fact has been stated by Sh. Sher Singh son of Smt. Tej Kaur,
from her previous marriage. It has been stated by Sh.Sher Singh that
Sh.Ranauk Singh handed over the Will to him before his death, however,
Joginder Kaur took it away. Moreover, the attested copy of the Will
( Ex.D2) has been produced, which has been proved by Sh. Om Parkash,
the Registration Clerk from the Sub Registrar's office, Ropar. He has
also brought alongwith him the summoned record i.e Bahi no.3 Zilad
no.57 to prove the Will. He has stated that the extract/summary of the
Will has been entered into his register, which has been thumb marked by
Sh.Ranauk Singh. No attempt has been made by the plaintiffs to prove
that Sh.Ranauk Singh did not thumb mark the Will. In these
circumstances, failure to produce the original Will will not make any
difference.
5.3 The First Appellate Court's second reason is also a result of
non-application of the judicial mind. Smt. Shinder Kaur @ Surinder
Kaur, one of the plaintiffs has appeared in evidence. She has not stated
that her father was not in a sound disposing mind. She has only stated
that her father was confined to bed and had lost his eyesight and was
hard of hearing. However, she has not produced any evidence to prove
that Sh.Ranauk Singh was not in sound disposing mind on 02.02.1983.
The First Appellate Court has erred in assuming that Sh.Ranauk Singh
was not of sound mind because he died after five days of the execution
of the Will. In the opinion of this Court, the approach of the First
Appellate Court was incorrect, particularly when Sh.Ranauk Singh
visited the office of the Sub-Registrar in order to get the Will registered.
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Moreover, one of the attesting witnesses Sh.Prem Singh, Namabardar of
the Village while appearing as DW4 has stated that Sh.Ranauk Singh
was of sound disposing mind at the time of execution of the Will.
5.4 The reason no.(iii) recorded by the First Appellate Court is
again erroneous. The Court has assumed that the decree in favour of
Jaswant Kaur has been passed in a hurry, which is not the correct
position. Sh.Ranauk Singh died on 07.03.1983 whereas the decree dated
14.06.1988 in favour of Jaswant Kaur was passed after a period of more
than 5 years i.e from the date of death of her father.
5.5 The First Appellate Court's reason no.(iv) is also
insubstantial. Testimony of Sh.Prem Singh was recorded in 1990
whereas the Will was executed and registered on 02.02.1983 i.e more
than 7 years before the testimony was recorded. In these circumstances,
even if Sh.Prem Singh has stated that the Will was hand written though
it was typed, still it will not affect the validity of a registered Will,
particularly when no evidence was led to prove that Sh.Ranauk Singh
did not execute the Will in favour of his wife.
5.6 The fifth reason is cited by the First Appellate Court is
again the result of an incorrect approach. In fact, the First Appellate
Court has erred in reading the evidence. Reason no.(v) has been cited
due to the misreading of evidence. In fact, Sh.Prem Singh, Namabardar
has not stated that he brought Sh.Ranauk Singh. It has been stated by
Sh.Sher Singh 'DW1' that he brought Sh.Ranauk Singh alongwith the
attesting witnesses in his car to Ropar for scribing the Will. Sh.Sher
Singh is not the beneficiary of the Will.
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5.7 The sixth reason recorded by the First Appellate Court is
also erroneous because Sh.Ranauk Singh had five daughters, who were
married. He bequeathed the property in favour of his wife. In fact,
Sh.Ranauk Singh has not only made reference to his daughters, he has
even named them in the Will. He has also stated that all these five
daughters are married and living happily in their married life and he has
already spent sufficient amount on them at the time of their marriage.
Hence, he wants to bequeath all his property in favour of his wife Smt.
Tej Kaur. This Court is unable to comprehend the sixth reason assigned
by the First Appellate Court because Gurpal Singh has appeared as
attorney of Smt. Tej Kaur. He has stated that the original Will was taken
away by Joginder Kaur from Sh.Sher Singh. Same thing is reiterated by
Sh.Sher Singh while appearing as DW1. Undoubtedly, Smt. Tej Kaur
did not appear in the witness box, however, the defendants led sufficient
evidence to prove their case. Hence, adverse inference could not be
drawn against the defendants solely on the ground that Tej Kaur failed to
testify in the Court. An attested copy of the registered Will dated
02.02.1983 is Ex.D2 is on the trial court's record.
5.8 The First Appellate Court's reason no.(vii) is again beyond
this Court's comprehension. In fact, during the pendency of the first
appeal, an application was allegedly filed by Smt. Tej Kaur for recording
her statement to the effect that a compromise has been effected between
the parties. The statement of Smt. Tej Kaur to that effect was recorded.
While making statement, she stated that no Will was executed in her
favour. However, that statement or the deed of settlement would not in
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anyway impact the decision of the case, particularly when she while
filing the written statement has admitted that Sh.Ranauk Singh executed
the Will in dispute in her favour. In fact, Smt. Tej Kaur has also filed the
second appeal alongwith with her daughter Jaswant Kaur. She has stated
that her statement was obtained by the plaintiffs by playing fraud on her.
In fact, her statement would not make any difference to the result of the
case, particularly when not only the Will but also the court decree has
been proved by the defendants.
5.9 Reason no.(viii) recorded by the First Appellate Court again
discusses about the sound disposing mind. This reason has already been
discussed while analysing reason no.(ii) cited by the First Appellate
Court.
5.10 First Appellate Court's reason no.(ix) is also insubstantial as
it has resulted in a wrong judgment. Undoubtedly, in the previous suit
filed by Jaswant Kaur she has stated that a family settlement took place
in the year 1975 which has been clarified in the written statement filed
by Jaswant Kaur in this suit to the effect that the family settlement took
place in the year 1985, however, that would not impact the result of the
case. Even if the family settlement was arrived at in the year 1975,
however, once it was admitted by Smt. Tej Kaur while filing the written
statement and in the statement suffered before the court on 14.06.1988,
the decree passed on that basis is valid. In view of Section 43 of the
Transfer of Property Act, 1882 the validity of the family settlement can
be upheld by taking clue from Section 43 of the 1882 Act which lays
down the doctrine of feeding the title.
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5.11 Similarly, the deposition of DW7 K.S.Mander, Advocate
admitting that the power of attorney of both the counsels was scribed by
the same Clerk would also not make any difference, particularly when
Smt. Tej Kaur appeared in evidence before the Court and admitted
Jaswant Kaur's case. Hence, reason no.(x) recorded by the First
Appellate Court is again sans substance because Smt. Tej Kaur has
suffered the statement in the court on 14.06.1988.
5.12 The last reason assigned by the First Appellate Court is
insubstantial because the First Appellate Court has again observed plea
on the part of Jaswant Kaur that the family settlement took place in the
year 1975 proves that the decree was obtained by misrepresentation and
fraud. The court has totally overlooked the clarification submitted by
the defendant Jaswant Kaur that there was a typographical error in the
previous plaint.
5.13 From a perusal of the written submissions submitted by the
learned counsel representing the respondent, it is evident that the same is
reiteration of the various reasons recorded by the First Appellate Court,
which have already been examined.
6. Discussion by this Court:-
6.1 It has come in evidence that Jaswant Kaur is locally married
and is residing in the village Kainaur where Smt. Tej Kaur and her father
used to reside whereas the plaintiffs are married and residing at far away
places. Additionally, the defendants have produced the copies of the
cancellation of Will dated 08.06.1988, while cancelling the Will dated
04.10.1985. The defendants have also produced a copy of the registered
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Will executed by Smt. Tej Kaur in favour of Jaswant Kaur on
09.08.1988. These documents have been marked because their attesting
witnesses were not examined. However, the cancellation deed dated
08.6.1988, as well as the Will dated 09.08.1988, are registered
documents. These documents prove that Smt. Tej Kaur intended to give
her entire property in favour of her daughter Jaswant Kaur @ Bant Kaur.
The Will dated 09.08.1988, proves that even after a period of 2 months
from the date the decree was suffered, she admitted that she intends to
give the entire property to Jaswant Kaur and not to any other daughter.
7. Decision:-
7.1 Keeping in view the aforesaid facts and discussion, the
judgment and decree passed by the First Appellate Court is set aside
whereas that of the trial court is restored.
7.2 The appeal stands allowed.
7.3 All the pending miscellaneous applications, if any, are also
disposed of.
25.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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