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2004 DIGILAW 283 (PNJ)

Mangal Singh v. Kartara

2004-03-10

V.M.JAIN

body2004
JUDGMENT V.M. Jain, J. - This Regular Second Appeal has been filed by the plaintiffs against the judgment and decree dated 16.11.1988, passed by the learned Additional District Judge, whereby the appeal, filed by the defendants, was accepted, the judgment and decree of the trial Court, were set aside and the suit of the plaintiffs was dismissed. The plaintiffs had filed a suit for declaration to the effect that the plaintiffs were the owners in joint possession of the land detailed in the heading of the plaint and were entitled to continue in possession thereof till they were dispossessed. It was alleged that Joga Singh was the owner of 1/14th share in 95 kanals 19 marlas of land and that Joga Singh was unmarried and he lived with the plaintiffs who rendered him all kinds of service and provided him food, etc. and the plaintiffs cultivated his share of land during his life time. It was alleged that the defendants (who are the real brothers and sisters of Joga Singh) had very little to do with Joga Singh. It was alleged that on 6.5.1979, Joga Singh had executed a Will in favour of the plaintiffs, for the services rendered by them. It was alleged that after the death of Joga Singh, the plaintiffs came into possession of all the movable and immovable assets of Joga Singh, including the share of Joga Singh in the suit land. It was alleged that Revenue Officers had illegally not given effect to the aforesaid Will dated 6.5.1979 in favour of the plaintiffs. Accordingly, the plaintiffs claimed their ownership over the suit land on the basis of the aforesaid Will allegedly executed by Joga Singh in their favour. In the written statement, filed by the defendants, it was admitted that Joga Singh was unmarried. However, it was denied that Joga Singh had executed any Will dated 6.5.1979 in favour of the plaintiffs. It was alleged that the alleged Will set up by the plaintiffs, was forged and fabricated. It was alleged that the plaintiffs were strangers to Joga Singh, deceased, and had never served Joga Singh nor cultivated his share of land. It was alleged that the plaintiffs had no right on any part of the suit land nor they were in possession thereof. It was alleged that the plaintiffs were strangers to Joga Singh, deceased, and had never served Joga Singh nor cultivated his share of land. It was alleged that the plaintiffs had no right on any part of the suit land nor they were in possession thereof. It was alleged that in fact the land in dispute was under physical control and management of the answering defendants, who were its lawful and absolute owners. It was alleged that the Revenue Officers had rightly not given effect to the alleged Will as the answering defendants were the owners of the suit land after the death of Joga Singh. 2. After hearing both the sides, the learned trial Court decreed the suit of the plaintiffs. However, the appeal, filed by the defendants, was accepted by the learned Additional District Judge, the judgment and decree of the trial Court were set aside and the suit of the plaintiffs was dismissed holding that the plaintiffs had failed to prove due execution of the Will in question which was shrouded with suspicious circumstances. Aggrieved against the judgment and decree, passed by the learned Additional District Judge, the plaintiffs filed the present Second Appeal in this Court. 3. I have heard learned counsel for the parties and have gone through the record carefully. 4. Learned counsel for the plaintiff-appellants submitted before me that the learned Additional District Judge erred in law in holding that the Will was shrouded with suspicious circumstances. It was submitted that as per the ration card of the plaintiffs, Joga Singh, deceased, was living with the plaintiffs. It was further submitted that since the defendants were not serving Joga Singh, he had executed a Will in favour of the plaintiffs, who are his distant relations. It was further submitted that nothing has come on the record to discard the testimony of two attesting witnesses and the scribe. However, I find no force in these submissions of the learned counsel for the plaintiff-appellants. In my opinion, the learned Additional District Judge had given cogent and convincing reasons for discarding the Will, Ex. PW 5/1, allegedly executed by Joga Singh, deceased, in favour of the plaintiffs. First of all, it may be made clear that at no point of time, the plaintiffs had claimed themselves to be related to Joga Singh in any manner whatsoever. PW 5/1, allegedly executed by Joga Singh, deceased, in favour of the plaintiffs. First of all, it may be made clear that at no point of time, the plaintiffs had claimed themselves to be related to Joga Singh in any manner whatsoever. The submission of the learned counsel for the plaintiff-appellants that the plaintiffs are distantly related to Joga Singh, is not borne out from the record. In the plaint, the plaintiffs had nowhere alleged that they are in any manner related to Joga Singh. In fact it was simply mentioned in the plaint that Joga Singh was owner of 1/14th share in the land measuring 95 kanals 19 marlas and that Joga Singh was unmarried and he lived with the plaintiffs who rendered him all kinds of service and provided him with food, clothing, etc., and that Joga Singh had executed Will dated 6.5.1979 in their favour. It was nowhere alleged that the plaintiffs were in any way related to Joga Singh. In the written statement, the defendants categorically stated that the plaintiffs were strangers to Joga Singh, deceased, and his other relatives. In spite of this assertion by the defendants that the plaintiffs were strangers to Joga Singh, the plaintiffs nowhere alleged in the replication about their being distantly related to Joga Singh. Even in the replication, it was simply alleged that Joga Singh was living and was being served by the plaintiffs and they cultivated his land during his life time and that Joga Singh was not having cordial relations with the defendants. However, it was nowhere alleged that the plaintiffs were distantly related to Joga Singh. When PW2, Mangal Singh, plaintiff appeared in the witness box, he simply stated that Joga Singh was known to him and was residing with him since his childhood. Even during evidence, he had nowhere stated that Joga Singh was in any way related to him. It was only during cross-examination that he stated that Joga Singh was his Uncle. However, it was nowhere mentioned as to in what manner he was related to him. Thus, it would be clear that the plaintiffs were in no way related to Joga Singh, not even distantly. 5. PW3, Santokh Singh, the attesting witness of the alleged Will is from a different village i.e. village Chanota. He stated that Joga Singh was known to him. Thus, it would be clear that the plaintiffs were in no way related to Joga Singh, not even distantly. 5. PW3, Santokh Singh, the attesting witness of the alleged Will is from a different village i.e. village Chanota. He stated that Joga Singh was known to him. During cross-examination, he stated that his village was at a distance of 6 miles from Village Kolar. He stated that he had no relationship in village Kolar. He stated that Joga Singh was son of Sultani, but he did not know how many children Sultani had. He further stated that the Will was scribed in village Kolar at the house of plaintiffs No. 1 and 2. He stated that he had come to the house of the plaintiffs of his own as he was to realise some money from them (for the material purchased by him from his shop). He stated that Mangal Singh, plaintiff, asked him to become an attesting witness of the Will. He stated that the paper for the execution of the Will was brought by Mangal Singh, plaintiff. He further stated that the scribe was not paid any charges. He further stated that the other attesting witness was summoned by Mangal Singh. He stated that village Kolar was at a distance of 3 miles from Dasuya and that the sale deeds, etc. of village Kolar were got registered at Dasuya and that deed writers are easily available in the Court premises (at Dasuya). In my opinion, PW3, Santokh Singh, could not be termed as an independent witness. According to him, he was to recover money from Mangal Singh, and for that purpose he had come to his house and at that time, Mangal Singh, plaintiff, had asked to him to become an attesting witness. Thus, Santokh Singh, PW3, was under the influence of Mangal Singh. There is nothing to indicate that Santokh Singh knew Joga Singh. His mere saying that Joga Singh was known to him, in my opinion, cannot be accepted especially when he is from a different village at a distance of 6 miles and had no relationship in village Kolar. 6. PW4, Chuni Lal, is the other attesting witness of the alleged Will. Even though he is from same village, but in my opinion, his evidence is also not worthy of any reliance. He stated that Joga Singh was known to him. 6. PW4, Chuni Lal, is the other attesting witness of the alleged Will. Even though he is from same village, but in my opinion, his evidence is also not worthy of any reliance. He stated that Joga Singh was known to him. During cross-examination, he also admitted that he was summoned by Mangal Singh. He also stated that the papers for execution of Will were brought by Mangal Singh from his house. As referred to above, he was summoned by Mangal Singh. However, when he appeared in the witness box before the Assistant Collector 1st Grade with regard to the Will in question, he had stated that he was summoned through Amarjit. He denied having made any such statement before the Assistant Collector in this regard. He was duly confronted with portion "A to A" of his earlier statement where it was so recorded. 7. PW5, Amarjit Singh, is the alleged scribe of the Will in question. He is from village Radhe Chak. During cross-examination, he stated that Joga Singh was known to him from the last 7 to 8 years. He, however, stated that he was not having any business dealings with Joga Singh, but he was known to him being the Uncle of Mangal Singh, plaintiff. He stated that he was not a regular deed writer. He stated that Mangal Singh had given the paper to him for the execution of the Will. He stated that Mangal Singh was related to him. He stated that he had gone there by chance being a relation. He stated that Joga Singh had got mentioned the cause of disinheriting his brothers and sisters. In my opinion, no reliance whatsoever could be placed on the testimony of PW5, Amarjit Singh, the alleged scribe of the Will in question. He himself had admitted that he is related to Mangal Singh, plaintiff and he knew Joga Singh because of Mangal Singh. He is from a different village and had gone to the house of Mangal Singh by chance being a relation. Furthermore, he categorically stated that Joga Singh had got mentioned the cause of disinheriting his brothers and sisters. However, a perusal of the Will, Ex. PW5/A, would clearly show that the Will is absolutely silent as to why Joga Singh had disinherited his brothers and sisters. In my opinion, PW5, Amarjit Singh, the alleged scribe, could not be termed as an independent witness. However, a perusal of the Will, Ex. PW5/A, would clearly show that the Will is absolutely silent as to why Joga Singh had disinherited his brothers and sisters. In my opinion, PW5, Amarjit Singh, the alleged scribe, could not be termed as an independent witness. 8. From a perusal of the above, it would be clear that PW5, Amarjit Singh, scribe, was a close relation of Mangal Singh whereas PW3, Santokh Singh, was under the influence of Mangal Singh since he was to recover money from Mangal Singh and had gone to the house of Mangal Singh for this purpose. Both of them are from different villages. So far as PW4, Chuni Lal, is concerned, his evidence is even otherwise not reliable since he made different statements before the Assistant Collector and was duly confronted with the same. 9. Besides the above, it would also be clear from the statements of the aforesaid witnesses that Mangal Singh had actively participated in the execution of the Will in question inasmuch as he had supplied the paper for the execution of the Will and had called PW4, Chuni Lal, and had asked PW3, Santokh Singh, to become an attesting witness and had got the Will scribed from his close relation. In my opinion, this would also be a suspicious circumstances for discarding the due execution of the Will in question. 10. It my also be mentioned here that Will Ex. PW5/A is absolutely silent as to why Mangal Singh had disinherited his real brothers and sisters and had executed the Will in favour of the plaintiffs who are totally strangers and are in no way related to Joga Singh, deceased. This would also be a suspicious circumstance for not accepting the validity of the Will in question. 11. With regard to Joga Singh, deceased, living with the plaintiffs is concerned, in my opinion, on the basis of the testimony of PW7, Ramesh Lal Bhatti, Inspector Food and Supplies, it could not be said that Joga Singh, deceased, was residing with the plaintiffs. PW7, Ramesh Lal Bhatti, deposed that Mangal Singh had given an application for issuance of ration card and he supplied a copy thereof as PW7/A. He stated that when the application is received, the same is verified and this application was also verified and it was signed by Amrik Singh, Assistant Food and Supplies Officer. PW7, Ramesh Lal Bhatti, deposed that Mangal Singh had given an application for issuance of ration card and he supplied a copy thereof as PW7/A. He stated that when the application is received, the same is verified and this application was also verified and it was signed by Amrik Singh, Assistant Food and Supplies Officer. He stated that on the basis of the said verification, a ration card was issued in favour of Mangal Singh on 25.10.1975 and the same was for the four adults and three minors. During cross-examination, he stated that Joga Singh had been shown to be uncle of Mangal Singh, applicant in the application form. A perusal of the application form, Ex. PW7/A, would make it clear that it was for seven persons which included five adults and two minors. This would show that there was discrepancy in the application form and the ration card which was allegedly issued for four adults and three minors. Furthermore, the original ration card had not seen the light of the day and was not produced. Furthermore, the person who had allegedly verified the correctness of the application, copy Ex. PW7/A, has not been examined to prove as to on what basis Mangal Singh, plaintiff, got the ration card issued including the name of Joga Singh as a member of his family even though he was in no way related to him. In my opinion, on the basis of the application, Ex. PW7/A, and the statement of PW7, Ramesh Lal Bhatti, Inspector, it could not be said that Joga Singh, deceased, was residing with the plaintiffs. 12. In my opinion, the learned Additional District Judge had rightly discarded the Will in question. 13. There is another circumstance which goes against the plaintiffs. Even though the defendants had categorically stated in the written statement that the Will was forged and fabricated, yet no efforts were made by the plaintiffs to get the alleged thumb impressions of Joga Singh, deceased, on the Will in question compared with any of the admitted/proved thumb impressions of Joga Singh, deceased. Even though the defendants had categorically stated in the written statement that the Will was forged and fabricated, yet no efforts were made by the plaintiffs to get the alleged thumb impressions of Joga Singh, deceased, on the Will in question compared with any of the admitted/proved thumb impressions of Joga Singh, deceased. In the absence of any such material on the record, in my opinion, it could not be said that Joga Singh, deceased, had executed the Will in question in favour of the plaintiffs especially when no reliance whatsoever could be placed on the testimony of the two attesting witnesses and the scribe about the due execution of the Will in question by Joga Singh in favour of the plaintiffs. 14. In view of my detailed discussion above, in my opinion, no fault could be found with the findings of the learned Additional District Judge in holding that the Will in question was shrouded with suspicious circumstances. Furthermore, no question of law muchless substantial question of law arises for determination in this appeal. Hence there is no merit in this appeal and the same is hereby dismissed. Appeal dismissed.