Punjab-Haryana High Court
Jagdish Chand Through His Lrs And Ors vs Sunita And Others on 29 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:061422
RSA-2205-2023 (O&M) 1 2024:PHHC:061422
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-2205-2023 (O&M)
Reserved on: 22.04.2024
Date of decision: 29.04.2024
Sh.Jagdish Chand through his LRs and others
..Appellants
Versus
Sunita and others
.Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. B.S.Bedi, Advocate for the appellants
Mr. Rajeshwar Singh, Advocate for the respondents
ANIL KSHETARPAL, J
1. In this Regular Second Appeal, the defendants assail the
correctness of the judgment and decree passed by the First Appellate
Court (hereinafter referred to as 'FAC'), which in turn has reversed the
judgment and decree passed by the trial court. The plaintiffs filed a suit
on 04.01.2014 for the grant of decree of declaration to the effect that the
plaintiffs are joint owners in possession in equal share of land to the
extent of 1/6th share and the registered Will executed on 03.05.2000,
which was registered on 08.05.2000, is illegal, null and void and is result
of fraud and misrepresentation with a consequential relief of permanent
injunction, restraining the defendants from alienating the property in any
manner.
2. The question which arises for adjudication by this Court is
as under:-
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"Whether a copy of the registered Will which is signed by
the Testator and attesting witnesses retained in the office of Registrar
after registration of the Will, is primary evidence, if identical multiple
copies are prepared by the same process which ensure accuracy and
signed?"
2. In order to understand the inter se relationship between the
parties, a small pedigree table is extracted as under:-
Ishwar Devi (deceased)
daughter of late Sh.Botha Mal
|
__________________________________________________________________________________________________
| | | | | |
Murli Jagdish Dinesh Bimla Chander Usha
Manohar Chander Kumar Devi Kanta Rani
(deceased) (D-1) (D-2) (Deceased) (D-3) (D-4)
| |
_________________________ __________________________________________
| | | | | | | | |
Sunita Yogesh Megha Gulshan Lalita Sudesh Veena Rajiv Lokesh
(W) @ Nauna (D) @ Gulla (D-5) (D-6) (D-7 (D-8) (D-9)
(P-1) (P-2) (P-3) (P- 4)
3. Some relevant facts, in brief, are also noticed. Smt. Ishwar
Devi daughter of late Sh.Botha Mal was owner of the suit property. She
executed a registered Will on 03.05.2000 which was registered on
08.05.2000 bequeathing her property in favour of her three sons.
Residential house located in Model Town, Karnal and the agricultural
land was bequeathed in favour of her two sons namely Sh.Jagdish Chand
and Sh.Dinesh Kumar whereas another residential house located in
Model Town was bequeathed in favour of Sh.Murli Manohar Sharma
alongwith certain amount in cash. She did not bequeath any property in
favour of her three married daughters. On 07.06.2005 Sh.Jagdish Chand
and Sh.Dinesh Kumar filed a petition under Section 372 of the Indian
Succession Act, 1925 (hereinafter referred to as '1925 Act') for the grant
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of succession certificate for releasing Rs.1,47,063/- deposited with the
Punjab National Bank. In this petition, it was stated that Smt. Ishwar
Devi has not left behind any Will.
4. On 29.04.2006 unfortunately, Sh.Murli Manohar Sharma
committed suicide, resulting in registration of FIR on 30.04.2006. The
allegations were made against Sh.Jagdish Chand and Sh.Dinesh Kumar
who were challaned by the police for committing an offence under
Section 306 of Indian Penal Code, 1860 (hereinafter referred to as '1860
Act'). The Sessions Court, Karnal discharged both the accused on
03.01.2014. The petition filed under Section 372 of the 1925 Act was
allowed. On 04.01.2014 heirs of late Sh.Murli Manohar Sharma filed
the suit. It was alleged by the plaintiffs that Smt. Ishwar Devi could not
execute the Will as the property was joint Hindu family property. It was
also alleged that the Will in question was forged and fabricated that it
was obtained by her two sons through fraudulent means. Defendant no.1
contested the suit. Defendant no.3, 5 (i), (ii), 2, 4, 6 to 9 filed their
separate written statements. In order to prove their case, the plaintiff
examined PW1 Megha @ Gudiya daughter of late Sh.Murli Manohar
Sharma. On the other hand, DW1 Sh.Jagdish himself testified. He also
examined DW2 Amit Kumar, Registration Clerk from the office of the
Sub Registrar and DW3 Anil Gupta, Record Keeper from the Sessions
Court. Certified copy of the Will was produced and proved. Sh.Amit
Kumar, an official from the office of Registrar brought the original Bahi
no.3 entry no.42/3 dated 08.05.2000. The trial court dismissed the suit.
Before the First Appellate Court two separate applications for
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permission to lead additional evidence were filed by defendant no.1.
The first one was filed for permission to produce death certificates of
both the attesting witnesses whereas the second one was filed for
examining the children of attesting witness in order to prove the
signatures of their respective fathers. Both the applications were
allowed and before the First Appellate Court the defendant no.1 not only
produced the original Will but also produced the death certificates of
both the attesting witnesses namely Sh.Krishan Kumar and Sh.Harish
Kumar, Nambardar. Identity cards of Sh.Harish Kumar and Aadhar card
of Sh.Bharat Sharma were also produced. In oral evidence Sh.Bharat
Sharma s/o Sh.Krishan Kumar and Sh.Ankit Sharma s/o Sh.Harish
Kumar were examined.
5. The following reasons have been recorded by the 'FAC'
while accepting appeal:-
i) Sh.Jagdish Chand and Sh.Dinesh Kumar while filing
the petition under Section 372 of the 1925 Act have
claimed that Smt. Ishwar Devi died intestate.
ii) Original Will was not produced in the trial court and
the same has been produced in the First Appellate
Court without seeking permission.
iii) The scribe of the Will, stamp vendor or the
handwriting and finger print expert have not been
examined by defendant no.1.
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iv) Original Will was also not produced in criminal case.
The finding of the Sessions Court while deciding the
criminal case is not binding.
v) The Registry Clerk has not seen that the testator
appended her thumb impression.
vi) Sub Registrar has not been examined.
vii) It appears to the court that the defendants are playing
in a clever manner as they exhibited Ex.D17 only in
the testimony of AW1 Sh.Bharat Sharma and AW2
Sh.Ankit Arora but have no concern with the
execution of the impugned Will.
viii) The Will has not seen the light of the day at any time.
But the same has come up for the first time at an
appellate stage.
6. Pursuant to the liberty granted, the learned counsel
representing the respondent has submitted a following written note of
submissions, which reads as under:-
"5.That in spite of propounding defendants/appellants
did not produce the Will and no witness was examined to
prove the Will. However, the learned Trial Court dismissed
the suit filed by the plaintiff-respondent, vide judgment and
decree dated 25.9.2018 on the ground of limitation. The
learned Trial Court did not decide the case on merits.
Against the judgment and decree dated 25.9.2018 the
respondent-plaintiff filed an appeal, which was allowed on
27.2.2023 and, therefore, against the same the present
Regular Second Appeal has been filed.
6.That during the pendency of the first appeal the
appellants-defendants filed an application under Order 41
Rule 27 CPC for leading additional evidence. The
defendants-appellants placed on record copy of the Will
(Ex.D-17) and also examined AW1 Bharat Sharma son of
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Shri Kusum Krishan Kumar alias Krishan Kumar Shastri
and also examined AW2 Ankit son of Shri Harish.It is
pertinent to mention here that Bharat Sharma and Ankit are
sons of Kusum Krishan Sharma and Harish, respectively.
Kusum Krishan Sharma and Shri Harish were the attesting
witnesses of the Will and had died before they could be
examined in the Court.
7.That the first appellate court decided the appeal on
27.2.2023 and decreed the suit filed by respondents-
plaintiffs. The appellate court while allowing the appeal has
held that the suit was within limitation as the respondents-
plaintiffs had no notice of Will and they came to know about
the Will for the first time in the year 2013.The Appellate
Court has relied upon the fact that the defendants
appellants Nos.1 and 2 had filed a Succession Case No.30
of 2005 titled as "Jagdish Chander and another v. General
Public" wherein they had taken a stand in para 3 of the
Petition that the deceased Ishwar Devi had left no Will in
writing at all as she died intestate. Even this fact was
admitted by Jagdish Chander while appearing in the
witness box as DW1 and the succession was granted in
favour of all the LRs.
8 That the second fact which has been taken by the learned
Court below is that at the time of discharge of the
defendants-appellants in FIR No. 181 dated 30.4.2006 the
respondents-plaintiffs were not before the Court and the
order of discharge was pronounced at the back of the
respondents-plaintiffs.
9.That the other point on the basis of which the judgment
was reversed was that the defendants-appellants had failed
to prove the Will on record. The defendants-appellants had
simply placed the Will on record and the same was not
proved as per Section 63 and Section 68 of the Evidence
Act.
10. That it is important to point out that the defendants-
appellants never moved an application under Section 69 of
the Evidence Act to seek permission to prove the Will by
way of secondary evidence. They moved the application
under Order 41 Rule 27 of CPC to prove the Will and in
order to do so examined AW1 and AW2, sons of the attesting
witnesses. It is pertinent to mention here that the
parameters to prove the Will under Section 69 and Order 41
Rule 27of CPC are different. In the proceedings under
Order 41 Rule 27 of the CPC it is also required to prove
that the additional evidence,which was required to be
proved was not within his knowledge and the same could
not be produced in spite of exercise of due diligence. In the
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instant case the defendants-appellants have not proved as to
why in-spite of propounding the Will the same was not
produced by them before the Trial Court even though the
same was in their knowledge and was in their possession.
11. That it is also important to point out that the Will dated
3.5.2002 has been exhibited as D-17 by Shri Bharat Sharma
who appeared as AW1. Shri Bharat Sharma is neither the
witness nor the Scribe. He was not even present at the time
of execution of Will and even he was not the beneficiary of
the Will. Therefore, the Will could not have been exhibited.
He was simply to prove the signatures of his father Shri
Kusum Krishan Kumar, who has since died. The Will has
never been produced by defendant/appellant No. 1-Jagdish
Chander, who appeared in the witness box as DW1.
12. That it is a well settled proposition of law that in order
to prove the genuineness of the Will the propounder is also
required to lead the evidence in addition to examining the
attesting witnesses. This has been held by the Hon'ble
Supreme Court while deciding Civil Appeal No.3124 of
2008 "Babu Singh v. Ram Sahat' (Para No.11).The Madras
High Court in LPA No.20 of 1975 "Doraiswami
v.Rathnammala and others has held that identification of
signatures of an executors does not amount to proof of
execution by executor as there is a possibility of executors
signatures having been taken on blank papers or on a
misrepresentation. It has further been held that when due
diligence has not exercised then no justification in allowing
additional evidence.
13.That from the above, it becomes clear that the defendant-
appellant had failed to prove the Will on record. The AW1
and AW2have not proved on record that the Will was signed
by Ishwar Devi in front of them. They simply had identified
the signatures of their father. AW1 Bharat Sharma has not
been able prove that the Will has been signed by his father
as the name on the Will and as per the record produced by
him are different. Moreover the Propounder hasnot proved
the Will in his testimony and, as such, there is no
corroboration of the evidence of AW1 and AW2 with other
evidence.AW1 and AW2 could not exhibit the Will as they
are neither signatories to the Will, nor they are
beneficiaries. Even the Scribe who was the best evidence
available has not been examined.
14.That even the Will could have been proved by invoking
the provisions of Section 69 of the Evidence Act. However,
the defendants-appellants have moved the application under
Order 41Rule 27 of CPC where the parameters are totally
different as they were also required to prove as to why the
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Will could not be produced at the time of trial even though
the same was in their possession."
7. This Court has gathered impression that the member of the
Superior Judiciary namely the 'FAC' did not demonstrate maturity in
writing the judgments. A member of Superior Judiciary is required to
possess a legal analytical mind because they have sufficient experience
either as a member of the Subordinate Judiciary or as a lawyer in the
case of direct recruitment. They are required to cull out points in issue
which requires adjudication under Order XLI Rule 30 (2) of the Code of
Civil Procedure, 1908. The Supreme Court in State Bank of India and
another vs. M/s Emmsons International Ltd. and another 2011 (12)
SCC 174 has already observed that the 'FACs' are required to identify
the issue which requires adjudication. The 'FAC' is the last court on both
matter of fact and law, after re-appreciation of evidence. Hence, a heavy
responsibility lies upon the shoulders of Presiding Officers of the
Superior Judiciary. It is expected that they are sufficiently judicially
trained to write judgments, after analysing the entire case in the proper
perspective. The observations made here or there shows lack of
application of mind, which is not appropriate. Hence, the 'FAC's are
advised to cull out the points in issue and thereafter, decide the first
appeal.
8. The reason no.(i) assigned by the 'FAC' is wrong because
Sh.Jagdish Chand, while appearing in evidence has specifically stated
that his mother never disclosed that she has executed a registered Will in
favour of two brothers. He came to know of the Will subsequently. The
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correctness of his deposition of this aspect was not challenged by the
plaintiff. Moreover, there was no challenge in the cross-examination to
the deposition of Sh.Jagdish Chand that he did not know about the Will
as his mother never disclosed the same. Moreover, the aforesaid petition
was only with respect to a deposit in the Bank. The Will is with respect
to immovable property. The stand of the defendants would not operate as
estoppel because the plaintiff has not changed their position on account
of stand taken in the petition by Sh.Jagdish Chand.
9. The reason (ii) shows that the 'FAC' has failed to analyse
the evidence in proper perspective. Before the trial court, the defendant
produced the attested copy of the Will from the criminal case as well as
a certified copy from the office of the Sub Registrar. Sh. Amit Kumar,
Registry Clerk brought the original Bahi no.3 in the court to prove the
correctness of the Will. The original Bahi was seen and returned by the
trial court. The Will was prepared in duplicate. Both the copies were
signed and were thumb marked not only by the testator but also by the
attesting witnesses. Hence, the copy of the Will available in the office of
Sub Registrar was also original. Consequently, production of original
Will in the appellate court did not make any difference.
10. The 'FAC' has also erred in observing that original Will has
been produced in the 'FAC' without seeking permission. Before the
'FAC', the children of attesting witnesses were examined. They were
required to prove the signatures of their respective father. Hence, the
original Will was produced in their deposition and exhibited. Two
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applications for production of additional evidence were allowed by the
'FAC'.
11. The 'FAC''s reason no.(iii) is also erroneous. There is no
requirement to examine the scribe or stamp vendor or handwriting
expert. The Will has been scribed on a plain paper. Hence, there was no
requirement of examining the stamp vendor. Similarly, the Will is
registered. Hence, the examination of scribe was also not necessary
because Section 69 of the Indian Evidence Act, 1872 (hereinafter
referred to as '1872 Act') requires that the signatures of the attesting
witness on the Will are required to be proved. In this case, children of
both the attesting witnesses have been examined to identify and prove
signatures of their respective father.
12. Similarly, the 'FAC' has erred in observing that finger print
expert has not been examined. It may be noted here that predominantly,
it is the plaintiff's case that Smt. Ishwar Devi had no right to execute the
Will as the property was joint Hindu Family ancestral property. It was
also claimed in the suit that the Will was result of misrepresentation and
fraud. Moreover, defendant-Sh.Jagdish Chand appeared in evidence and
stated that their mother voluntarily executed the Will in their favour.
During his cross-examination, he was given suggestion that Sh.Jagdish
Chand, by taking benefit of old age of his mother, has got the Will
executed. In the cross-examination it was not disputed that the Will was
not thumb marked by Smt. Ishwar Devi. A bare perusal of multiple
copies of the Will, it is evident that the photograph of Smt. Ishwar Devi
is pasted on the Will and she has appended her thumb impression in such
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a manner that half of the thumb impression is on the photograph whereas
the remaining half is on the paper on which the Will is scribed. At the
bottom of the first page, she has also thumb marked the Will. Similarly,
she has thumb marked the Will twice when the recitals of the Will came
to an end at page 2 of the Will. She has also appended her thumb
impression in the office of the Sub Registrar at the time of registration of
the Will. At the time of registration, she has appended two thumb
impressions. In these circumstances, the examination of hand writing
expert was not necessary. Moreover, handwriting and finger print expert
can only give an opinion, which is not binding on the court.
13. The 'FAC''s reason no. (iv) is also not correct because in the
Sessions case the original Will was not required to be proved. In the
aforesaid case, the validity and genuineness of the Will was not in issue.
14. Similarly, reason no.(v) of the 'FAC' that the Registry Clerk
has not seen the testator appending her thumb impression also shows
lack of maturity. The Registry Clerk is an official, who has produced the
original record. He does not claim that he has seen the testator
appending when she appended her thumb impression.
15. Similarly, reason no.(vi) the 'FAC' has erred in observing
that the Sub Registrar has not been examined. Similar is the reasoning
of the 'FAC' that the Will has not seen the light of the day at any time.
The court has overlooked that the copy of the Will was produced before
the Sessions Court in criminal case in the year 2006 when the Sessions
Court observed that the Will appears to be genuine. Moreover, the
certified copy as well as attested copy of the Will was produced at the
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time of evidence and the plaintiffs, while filing the suit, do not claim that
there was no Will.
16. The argument of the learned counsel representing the
respondent that no application under Section 69 of the 1872 Act was
filed by the appellant is without substance because there is no provision
for filing an application under Section 69 of the 1872 Act, which only
permits the propounder to prove the Will by examining someone who
identifies the signatures of the attesting witness of the Will.
17. Similarly, the next argument of the learned counsel that the
Will was subsequently exhibited whereas the children of the attesting
witness were examined earlier also lack substance. The copy of the
original Will was exhibited in the deposition of Sh.Bharat Sharma son of
Kusum Sh.Krishan Kumar alias Sh.Krishan Kumar Shastri. Similarly,
Sh.Ankit also reiterated the aforesaid fact. Hence, the Will was not
exhibited subsequently as is being contended by the learned counsel
representing the respondent.
18. The next argument of the learned counsel representing the
respondent that the thumb impression of the executant has never been
identified also needs deeper examination. From the reading of the
plaint, it becomes evident that the plaintiffs have not asserted that Smt.
Ishwar Devi never executed the Will. Similarly, when Sh.Jagdish Chand
appeared in evidence, a suggestion was given to him that he managed
the Will by taking an advantage of old age of his mother. Thus, the
thumb impressions of Smt. Ishwar Devi on the Will were not disputed.
Moreover, Sh.Jagdish Chand has stated that his mother appended the
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thumb impression. Ms. Megha, one of the plaintiffs, while appearing in
evidence admitted that her grandmother Ishar Devi executed and
registered the Will. The relevant extract of her deposition reads as
under:-
"My grand mother had died on
03.03.2005. I do not remember when my grand
mother executed Will. It is correct that the Will
executed by my grand mother is registered by Sub
Registrar Karnal. I do not remember registration
deed no. of the Will. My father had died on 30 April
2006. I do not remember when the mutation of suit
property was sanctioned on the basis of Will. I do not
remember whether my father during his lifetime has
filed any suit for any right of his land against my
uncles."
19. The suit filed by the plaintiff is also beyond the prescribed
period of limitation. For filing suit for the grant of decree of declaration
the limitation is 3 years from the date the cause of action first accrues in
favour of the plaintiffs. In the plaint, the plaintiffs state that the cause of
action accrued in their favour firstly on 08.05.2000. Para 1 of the plaint
reads as under:-
"That the cause of action has arisen in
favour of the plaintiff against the defendants No.1
and 2 firstly on 08.05.2000, when the alleged Will
qua the suit land was got executed and registered by
Smt. Ishwar Devi in favour of defendant No.1 and 2
thereafter when the mutations qua the suit land on the
basis of alleged Will was entered and sanctioned by
the revenue officers and again in the Month of June,
2013, when the defendants No.1 and 2 tried to sell,
transfer or alienate the suit land illegally and forcibly
in favour of some person of their own choice and then
from time to time whenever the requests made by the
plaintiffs were turned down by defendant No.1 and 2
with deaf ears and lastly about a week when the
defendants No.1 and 2 have flatly refused to admit the
claim of the plaintiffs, which is still continuing one."
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20. As per Article 58 of the Limitation Act, 1963 (hereinafter
referred to as '1963 Act') in a suit for declaration the limitation will
begin to run when the cause of action accrued for the first time.
Moreover, the Will came to the notice of the plaintiffs when it was
produced before the Sessions Court in criminal case. The order of
discharge was passed in the year 2006. The plaintiffs have not led any
evidence to prove that the Will was not to their notice before 2006. The
suit was filed on 04.01.2014. The 'FAC' was incorrect in observing that
the suit is based upon inheritance and therefore, there is no period of
limitation. While making such general observation, the 'FAC' has not
referred to any statutory provision. Limitation for filing all the suits is
regulated by the statutory provision as provided in the particular Act or
under the 1963 Act. Even if the suit does not fall in any of the Article to
the Schedule attached to the 1963 Act same would be governed by
Article 113 which is a residuary Article.
21. Keeping in view the aforesaid facts and discussion, the
judgment of the 'FAC' is set aside and that of the trial court is restored.
Regular Second Appeal stands allowed.
22. All the pending miscellaneous applications, if any, are also
disposed of.
29.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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