Punjab-Haryana High Court
Balwan Singh vs Shanti Devi Etc on 6 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:037286
RSA No.282 of 1994 (O&M) -1- 2024:PHHC:037286
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.282 of 1994 (O&M)
Date of Order:06.03.2024
Balwan Singh
.Appellant
Versus
Shanti Devi and others ..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Ashish Aggarwal, Sr. Advocate, with
Mr. Jangjit Dahiya, Advocate
Ms. Aashna Aggarwal, Advocate
Mr. Vishal Pundir, Advocate, for the appellant.
Mr. Jitender Malik, Advocate, for the respondents.
ANIL KSHETARPAL, J
1. This is the defendant's second appeal against the judgment and
decree passed by the First Appellate Court which in turn has reversed the
judgment and decree passed by the trial court.
2. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed
3. A family tree to show inter-se relationship between the parties
is drawn as under:-
Yad Ram
|
Paras Ram (son)
|
--------
|
Balwan Singh(son)
Defendant-appellant
|
---------------------------
| | |
Shani Santra Krishna
Devi DeviDevi
(plaintiffs (respondents herein)
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4. The plaintiffs filed a suit for grant of decree of declaration that
they are owners to the extent of 3/4th share in the property left behind by
their father, who died 40 days ago. In other words, the plaintiffs claim the
property on the basis of natural succession while claiming that the alleged
Will is fictitious, bogus, invalid and not binding on the rights of the
plaintiffs. The plaintiffs also asserted that the parties are 'Jats' and follow
custom in matters of property.
5. The defendant, while contesting the suit submitted that Sh.
Paras Ram bequeathed the entire property in his favour by a registered Will
dated 04.06.1984.
3. In order to prove the Will, the defendant appeared as DW1 and
examined both the attesting witnesses, namely, DW2-Ram Singh and DW3-
Mehar Singh, besides examining DW4-Rajbir Singh, the scribe.
4. On behalf of the plaintiff, Smt. Krishna Devi, plaintiff no.2,
appeared in evidence apart from examining PW2-Mohinder Singh and PW3-
Hoshiara.
5. The trial court held that the execution of the Will has been
proved in accordance with the Section 68 of the Indian Evidence Act, 1872.
Consequently, the suit was dismissed. However, the First Appellate Court
reversed the judgment and decree passed by the trial court on the following
grounds:-
(1) The suit property is proved to be ancestral because the
defendant in the previous suit admits it to be sold.
(2) DW1 while appearing in evidence admits that they being
'Jats' are being governed by the custom.
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(3) The attesting witnesses have not clearly deposed that the
Will was attested in their presence.
(4) Sh. Balwan Singh was present when the Will was
executed.
6. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the requisitioned record.
7. The learned senior counsel representing the appellant while
drawing the attention of the court to the depositions of the witnesses and the
Will submits that the First Appellate Court has erred in reversing the
judgment and decree passed by the trial court. He also relies upon the
judgment passed by the Supreme Court in Sube Singh and another vs.
Kanhiya Singh and others, 1964(2) SCR, 899, to contend that amongst the
'Jat community' belonging to district Rohtak, the agricultural ancestral land
can be alienated for consideration.
8. On the other hand, the learned counsel representing the
respondents contends that the defendant has not asserted that the Will was
executed in lieu of the service rendered by Sh. Paras Ram and it shall be
noted here that in the year 1983, the defendant filed a suit against his father
which was subsequently withdrawn. In the aforesaid suit, the defendant had
admitted that the property is a Joint Hindu Family property. He further
submitted that the stamp paper used for the execution of the Will was
purchased on 17.05.1984, whereas the Will was executed and registered on
04.06.1984. He submits that at the relevant time, Sh. Paras Ram had
fractured his Hip.
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9. This court has analyzed, considered and evaluated the
submissions of the learned counsel representing the parties.
10. The original Will is 'Ex.D1' on the record of the trial Court. It
has been scribed on revenue stamp papers worth twenty five paise each.
These stamp papers were purchased on 17.05.1984. The recital of the Will
runs on both the sheets of papers. On the first page of the Will, Sh. Paras
Ram has signed as well as thumb marked the Will on the left hand margin.
He has also signed and thumb marked upon the small correction which was
carried out on the first page. The second page is also thumb marked by the
executant as well as both the attesting witnesses. On the reverse side of the
first page, there is an endorsement made by the Registrar. The aforesaid
endorsement is signed at two different places by Sh. Paras Ram and has
been thumb marked once. Both the attesting witnesses have also thumb
marked the Will in the presence of the Registrar. In order to prove the Will,
both the attesting witnesses, namely, Sh. Ram Singh, Lambardar, and Sh.
Mehar Singh have testified in the Court. DW4-Sh. Rajbir Singh, the scribe
has also been examined. He has brought the summoned record. It has been
stated that Sh. Paras Ram had thumb marked and signed in his register.
Thus, the requirement of Section 68 of the Indian Evidence Act, 1872, with
respect to authenticity and proving of Will stands fulfilled.
11. As would be evident from the family tree, the appellant was the
only son of Sh. Balwan Singh. Sh. Balwan Singh while executing the Will
has recited that he has already married his three daughters and has given
them sufficient gifts and spent amount on their marriage and he has no desire
to give anything further to his daughters. Hence, the testator while
executing the Will has disclosed the reasons for excluding his daughters.
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All the three daughters are married and are living in some other villages
along with the family of their respective in-laws.
12. The First Appellate Court has also erred while observing that
the property being ancestral could not be willed away. In fact, the Supreme
Court after examining the case relating to 'Jats' of District Rohtak concluded
that there is no restriction prevalent in the said community that bars the 'Jats'
to transfer the property. Moreover, in this case, the property has been
bequeathed and not transferred. It has been bequeathed in favour of male
progeny while excluding the daughters. Furthermore, the plaintiffs are
required to plead and prove custom. They have miserably failed to do that.
In such circumstances, the custom which has been recognized by the Courts
can be followed.
13. The next reason assigned by the First Appellate Court is with
regard to presence of Sh. Balwan Singh. It shall be noted here that the
plaintiffs have not led any evidence to prove that Sh. Balwan Singh
influenced his father while executing the Will. Both the attesting witnesses
have appeared in evidence. The learned counsel representing the plaintiffs
have not suggested to both the attesting witnesses that the Will was executed
by Sh. Paras Ram under the influence of his son Sh. Balwan Singh. As
already noticed, the Will is a registered Will. It has been attesed by the
Lambardar as well as another respectable person of the village. The
plaintiffs have not led any evidence to prove that it is not signed or thumb
marked by Sh.Paras Ram.
14. With respect to the argument of the learned counsel
representing the respondent that the stamp paper was purchased on
17.05.1984, and the Will was executed on 04.06.1984, it may be noted that
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it is not the case of the defendants that Sh. Paras Ram himself purchased the
stamp papers. The reverse side of the first page of the Will, Ex.D1, only
proves that the stamp paper was purchased on 17.05.1984. The endorsement
with respect to purchase of the stamp papers is not signed or thumb marked
by Sh. Paras Ram. Sh. Paras Ram remained alive for a period of more than
4 years after the execution of the Will as he died on 23.09.1988. He never
revoked the Will even after being alive for a period of 4 years after the
execution of Will.
15. Keeping in view the aforesaid facts and discussion, this court is
left with no other choice but to reverse the judgment and decree passed by
the First Appellate Court. Hence, the appeal is accepted. The judgment and
decree passed by the First Appellate Court is set aside and that of the trial
court is restored.
16. All the pending miscellaneous applications, if any, are also
disposed of.
March 06, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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