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2001 DIGILAW 1021 (PNJ)

Mohinder Singh v. Joginder Singh

2001-09-17

ADARSH KUMAR GOEL

body2001
JUDGMENT Adarsh Kumar Goel, J. - The defendant-appellant has challenged the decree of the appellate Court in favour of the respondent-plaintiffs holding that Bhan Kaur respondent-plaintiff was entitled to inherit the estate of Sawan Singh and the appellant-defendant was not proved to be the son of Sawan Singh as claimed and was not entitled to inherit the estate of Sawan Singh. 2. The respondent-plaintiff filed suit for declaration and injunction alleging she was sister of Sawan Singh and defendant No. 1 falsely claimed himself to be son of Sawan Singh and also falsely claimed having a will executed by Sawan Singh in his favour. The original Plaintiff died and was substituted by the legal representatives. The defendant contested the suit. It was stated that the defendant was the son of Sawan Singh and on the basis of relationship as well as a registered Will dated 19.3.1966, he was entitled to succeed to his estate. 3. The trial court, after appreciating the evidence on record, held that the defendant appellant was proved to be son of Sawan Singh and the registered Will executed in favour of defendant-appellant and also executed in favour of appellants mother, who had since died, was a valid Will. In view of these findings, the suit was decreed. The appellate Court reversed the finding in the appeal. It was held that the Will could not be held to have been proved in absence of evidence to show that Section 63 of the Indian Succession Act was complied with. It was observed that the finding of the trial court, upholding the Will when the scribe and one of the attesting witnesses had died and the surviving witness had become hostile, was not sustainable. The appellate Court also reversed the finding of the trial court that Mohinder Singh was the son of Sawan Singh on the ground. that the evidence of Kundan Singh (DW.2) and Inder Singh (DW.3) was not dependable as Amolak Singh son of Kundan Singh and Kundan Singh had entered into an agreement for purchasing the land of Mohinder Singh and Mohinder Singh had executed pronote in favour of Inder Singh (DW.3). Referring to the documentary evidence of the defendant, it was observed that Ex. Referring to the documentary evidence of the defendant, it was observed that Ex. D3, a copy of death entry recording that Sardari was wife of Sawan Singh did not connect Sawan Singh of the present case as in the said entry Sawan Singh was recorded as son of Basakh Singh while in fact he was son of Basawa Singh; Ex. D5 which was an arbitration award recording Mohinder Singh defendant as son of Sawan Singh, was passed after the death of Sawan Singh and could have been at the instance of Sawan Singh to claim the property; Ex. D6 mutation entry regrading admission of the plaintiff that Mohinder Singh was son of Sawan Singh was not of much avail; Ex. D7 which was an order of the Assistant Collector First Grade was also of no avail as the finding of the Assistant Collector was not binding on the Court. It was further observed that Ex. PX which was an application for issuance of a ration card recording that Rajinder Singh and Badri were two sons of Sawan Singh proves version of the defendant to be doubtful. 4. Learned counsel for the appellant submitted that the finding of the lower appellate Court was perverse and contrary to law. Learned counsel for the respondent has supported the reasoning and finding recorded by the lower appellate Court. 5. After hearing counsel for the parties and perusing the record, 1 find force in the contention of the counsel for the appellant. It is true that second appeal lies only on a substantial question of law and this Court is slow in disturbing the finding recorded by the lower appellate Court but the present case appears to be an exceptional one. The finding of the lower appellate Court is contrary to the documentary evidence on which two views are not possible. The approach adopted by lower appellate Court in rejecting the documentary evidence is contrary to law. Death entry Ex. D3 has been ignored only on the ground that the appellants mother is described therein as wife of Sawan Singh son of Basakh Singh; Ex. D5 which is an arbitration award has been ignored merely on the ground that the said award was after the death of Sawan Singh; mutation Ex. Death entry Ex. D3 has been ignored only on the ground that the appellants mother is described therein as wife of Sawan Singh son of Basakh Singh; Ex. D5 which is an arbitration award has been ignored merely on the ground that the said award was after the death of Sawan Singh; mutation Ex. D6 has been ignored inspite of the fact that it contained admission of the plaintiff Joginder Singh on the ground that the appellant was Pichhlag son (born to a wife from a previous husband); Ex. D7 which was an order of the Assistant Collector has been ignored on the ground that the order was not binding on the Court. Learned counsel for the respondent has cited decisions in support of the submission that the mutation entries do not create title but the issue in this appeal is not whether the said entry has created any title but whether they recorded a relevant fact. Oral evidence was rejected on the ground that the witnesses were having dealing with the defendant and were thus interested. The appellant was clearly proved to be the son of the deceased Sawan Singh. 6. Following substantial question of law arise in this appeal : Whether in the presence of documentary evidence from which only one inference can be drawn, it is possible to draw a different inference ? 7. In view of overwhelming documentary and oral evidence from which only one inference can be drawn, i.e. the appellant was proved to be the son of Sawan Singh, the finding of the lower appellate Court cannot be sustained. 8. As regards Will, which is a registered one and which was held to be proved by the trial Court, I do not disturb the finding of the appellate Court, as in my opinion two views were possible. 9. In view of the above, this appeal is allowed. The decree of the appellate Court is set aside and the decree of the trial court is restored. Appeal allowed.