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2004 DIGILAW 393 (PNJ)

Arjan Singh alias Kamal Singh v. Siri Chand

2004-03-31

M.M.KUMAR

body2004
JUDGMENT M.M. Kumar, J. - This judgment would dispose of two appeals being R.S.A. Nos. 469 and 470 of 1985 as both the appeals relate to the same property and dispute has been raised by the father and son by filing two suits by taking different stands. Arjan Singh alias Kamal Singh son of Raghbir Singh is the plaintiff-appellant in R.S.A. No. 470 of 1985, whereas the other appeal has been filed by his father plaintiff-appellant Raghbir Singh by invoking Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code). The findings of facts recorded by both the Courts below in both the cases have been challenged by the plaintiff-appellants. The plaintiff-appellant Arjan Singh set up a Will Ex. P-1 dated 31.12.1976 which has been discarded by both the Courts below holding that it was surrounded by unexplained suspicious circumstances. The assertion made by Raghbir Singh father of Arjan Singh in his separate suit was that Hoshiari was the daughter of Smt. Nihali, who was born from the wedlock with her earlier husband before she was married to Hoshiar Singh. A pedigree table would help in understanding as under :- 2. The whole dispute in these appeals revolves around two issues of fact. Foremost and most contentious issue is whether Hoshiari who is conceded to be mother of defendant-respondents 1 to 3, namely, Siri Chand, Brij Pal and Murti was the daughter having been born out of the wedlock of Bhag Singh and Smt. Nihali or Hoshiari was born to Smt. Nihali from her previous husband. The second issue pertains to authenticity of the Will dated 31.12.1976 Ex. P-1. 3. In his Civil Suit No. 450 of 1979 instituted on 13.8.1979/14.9.1982 Arjan Singh alias Kamal Singh sought a declaration with the consequential relief of possession and permanent injunction against defendant-respondents 1 to 3. He set up a Will dated 31.12.1976 Ex. P-1 claiming that on account of the services rendered by him to Hoshiar Singh, the suit property has been bequeathed to him. Hoshiar Singh had died on 29.7.1977 leaving behind Arjan Singh as his sole legal heir. He further alleged that Bhag Singh father of Hoshiar Singh performed a Kareva marriage with Smt. Nihali who brought a daughter, namely, Hoshiari along with her from her previous husband. Hoshiar Singh had died on 29.7.1977 leaving behind Arjan Singh as his sole legal heir. He further alleged that Bhag Singh father of Hoshiar Singh performed a Kareva marriage with Smt. Nihali who brought a daughter, namely, Hoshiari along with her from her previous husband. It was further claimed that out of the wedlock of Bhag Singh and Smt. Nihali, Hoshiar Singh and another daughter were born. The other daughter had died 11/12 days after her birth. Defendant-respondents 1 to 3 who are admittedly children of Hoshiari have claimed that Hoshiari was sister of Hoshiar Singh and was born out of the wedlock of Bhag Singh with Smt. Nihali. Defendant-respondents 1 to 3 got the mutation of inheritance sanctioned in their favour on 13.1.1979 and the appeal filed by plaintiff-appellant Arjan Singh was also dismissed. Both the orders of the revenue authorities have also been challenged 4. Another suit was filed by Raghbir Singh plaintiff-appellant, father of plaintiff-appellant Arjan Singh alias Kamal Singh, seeking a declaration and permanent injunction with regard to the suit land claiming that he has been in actual physical possession of the suit land as owner and being the legal heir of Hoshiar Singh deceased. In the suit filed by Arjan Singh, Raghbir Singh has also been impleaded as defendant-respondent 4. A common stand has been taken by Raghbir Singh in both the cases as has been done by defendant-respondents 1 to 3 and defendant-respondent 4 Raghbir Singh in the suit filed by Arjan Singh. Both the suits were consolidated and evidence was ordered to be recorded in the suit filed by Arjan Singh. 5. On the issues of genuineness of the Will, both the Courts have found as a fact that the Will is surrounded by umpteen suspicious circumstances which the propounder Arjan Singh has failed to remove. It has not been explained as to how the cutting of digit 8 representing year 1978 has occurred and the same has been substituted by digit 6 in the Will Ex. P-1. Both the Courts have found that the Will in fact executed in 1978 after the death of Hoshiar Singh who is admitted to have died on 29.7.1977. The statement of Deed Writer Narjeet Pal PW-4 has also been found to be unreliable because he failed to produce the deed-writers register of the year 1976 by stating that the same was lost. The statement of Deed Writer Narjeet Pal PW-4 has also been found to be unreliable because he failed to produce the deed-writers register of the year 1976 by stating that the same was lost. The statement having not been substantiated and coupled with the fact that the registers of the years 1976 and 1978 were available, the Court discarded the statement of the scribe. He was unable to explain the cutting of digit 8 by substituting the same with digit 6 in the year 1978. The foremost significance has been accorded to the contradictions between the version pleaded in the suit and the statement made at the time of prosecution of Arjan Singh and Raghbir Singh plaintiff-appellants for having assassinated Hoshiar Singh - the testator. In paragraph 2 of the plaint, Arjan Singh pleaded that testator Hoshiar Singh had been living with him at Village Bukharpur, whereas in his cross-examination he has to concede that Hoshiar Singh was living at his own house. The statements of other witnesses Gajpat PW-3 and Gajraj PW-5 of Village Bukharpur are also to the same effect. It is common case of the parties that Hoshiar Singh was murdered at Village Dialpur for which Arjan Singh and his father Raghbir Singh plaintiff-appellants along with another were prosecuted under Section 302 IPC. They were acquitted. The statement of Arjan Singh is Ex. D-6 and the statement of Raghbir Singh is Ex. D-9 which were made during the trial under Section 302 IPC. It was stated by both of them that Hoshiar Singh used to reside with Hargobind. All his produce and belongings used to remain with Hargobind. On the aforementioned basis, it was found that the stand of Arjan Singh was false inasmuch as he never served testator Hoshiar Singh which could have resulted in execution of the Will. 6. The concurrent findings recorded by both the Courts below are that in fact the Will was executed in 1978 after the death of testator and Hoshiar Singh never lived with Arjan Singh at his village Bukharpur. It has further been found that Hoshiar Singh had no occasion to execute the Will Ex. P-1 in lieu of the services rendered by plaintiff-appellant Arjan Singh because Hoshiar Singh had been living at Village Dialpur not at Bukharpur. It has further been found that Hoshiar Singh had no occasion to execute the Will Ex. P-1 in lieu of the services rendered by plaintiff-appellant Arjan Singh because Hoshiar Singh had been living at Village Dialpur not at Bukharpur. The statement of attesting witness Gajraj PW-5 has also been relied upon in support of the conclusion that the Will was in fact executed in 1978 as Gajraj himself has stated before the Revenue Officer, Ballabhgarh in his statement recorded on 19.1.1979. The statement of Gajraj has been taken on record as Ex. D-16. He was duly confronted with his statement during his cross-examination by the defendant-respondents. 7. On the other issue, both the Courts concluded that Hoshiari was born out of the wedlock of Bhag Singh and Smt. Nihali and she was not brought by Smt. Nihali in the Kareva marriage. In other words, Hoshiari was not born from the previous marriage of Smt. Nihali, if any, with her previous husband. In the written statement filed by defendant-respondents 1 to 3, the averments with regard to Kerva marriage were denied along with the averment that Smt. Nihali had brought Hoshiari as her daughter from her alleged previous marriage. They also denied that a daughter born out of the wedlock of Bhag Singh and Smt. Nihali had died after 10-12 days of her birth. It was claimed that Hoshiar Singh was born in 1905 and Hoshiari took birth in 1910. Plaintiff-appellant Arjan Singh produced Ex. P-5, a copy of death certificate, showing death of one Smt. Kori (Kodi) daughter of Bhag Singh of Bukharpur on 17.11.1912. The contention that there was only one daughter born out of the wedlock of Bhag Singh and Smt. Nihali and it has to be the daughter shown in the death certificate Ex. P-5 who died on 17.11.1912, therefore, Hoshiari was not the daughter of Bhag Singh, was rejected. Rejecting the aforementioned contention on the basis of evidence, the learned District Judge observed as under :- "26. In the first instance, it was the case of the respondents in the written statement that the daughter referred to by them had died 10 or 12 days after her birth. Consequently, the death entry (Exhibit P-5) could not relate to the female child born on 27.1.1910. In the first instance, it was the case of the respondents in the written statement that the daughter referred to by them had died 10 or 12 days after her birth. Consequently, the death entry (Exhibit P-5) could not relate to the female child born on 27.1.1910. Coming to the averments in paragraph 4 of the plaints in the two suits, it would be seen that according to the appellants also, the daughter born from the loins of Bhag Singh from the womb of Nihali had died about 11 or 12 days after her birth. It follows, therefore, that the view that the death entry (Exhibit D-5) cannot relate to the birth of the female child born on 27.1.1910, is strengthened. If further follows that the death of the female child born on 27.1.1910 was not proved. 27. In my view, the point for consideration is whether Hoshiari was the mother of respondents 1 to 3 and was the daughter of Bhag Singh. That she was the mother of respondents 1 to 3 is established by the own evidence of the appellants contained in the testimony of Gajpat Singh (PW-3) where he deposed that Nihalis picchlag daughter was Hoshiari who at the time of Nihalis karewa with Bhag Singh was about 1-1/2 years old. He further stated that Hoshiari aforesaid was married at Dayalpur with Maya Ram and that respondents 1 to 3 are the children of Maya Ram and Hoshiari. 28. Now if Hoshiar Singh was born in 1905, the Karewa marriage of his father with Nihali must have taken place in the year 1904 and if Nihali had brought a pichhlag daughter, she must have been elder to Hoshiar Singh. However, Gajraj (PW-5) deposed in cross-examination that Hoshiara had a sister by the name of Hoshiari; that she was younger to him; but that he could not state how younger was she ? Above all, if Hoshiari was the pichhlag daughter, she could not have been born in 1910 and the birth entry of 1910 can thus relate only to Hoshiari, the mother of the respondents and she has been proved to be the daughter of Bhag Singh and the sister of Hoshiar Singh. Above all, if Hoshiari was the pichhlag daughter, she could not have been born in 1910 and the birth entry of 1910 can thus relate only to Hoshiari, the mother of the respondents and she has been proved to be the daughter of Bhag Singh and the sister of Hoshiar Singh. In view of this evidence, it is wholly futile to attach any significance to the averments in the written statement to the effect that only one son and one daughter were born to Bhag Singh when it has been established beyond doubt by the evidence of both the parties that in fact two daughters and one son were born and one of the daughters died 10 or 12 days after her birth. There thus remains absolutely no doubt that respondents 1 to 3 are the sons and daughter respectively of Hoshiari who has been proved to be the sister of Hoshiara deceased. The findings of the Court below on issue No. 2 are also thus upheld." 8. Shri Gur Rattan Pal Singh, learned counsel for the plaintiff-appellant has argued that the vital issue relating to Hoshiari being the daughter of Nihali from her earlier marriage (Picchlag) was not framed and as a consequence the Courts below have lost the correct direction to decide the case. According to the learned counsel Hoshiari and her children defendant-respondents 1 to 3 (1 and 3 represented by legal representatives) Brij Pal, Siri Chand and Ms. Murti were not entitled to any share in the land and the mutation of inheritance sanctioned in their favour suffers from inherent defect. The learned counsel has argued that under Order 41 Rule 1 of the Code it was the duty of the Courts below to frame an issue as to whether Hoshiari was born out of the wedlock of Bhag Singh and Nihali after Bhag Singh had performed Kareva marriage with Nihali or Hoshiari was already born to Nihali from the earlier marriage. The learned counsel has stated that the case of the plaintiff- appellant has been gravely prejudiced by the non-framing of the aforementioned issue. He has further argued that the findings of the Courts below have been vitiated by misreading of evidence and by placing reliance on document like Ex. D-4. The learned counsel has stated that the case of the plaintiff- appellant has been gravely prejudiced by the non-framing of the aforementioned issue. He has further argued that the findings of the Courts below have been vitiated by misreading of evidence and by placing reliance on document like Ex. D-4. According to the learned counsel if the findings could be shown to be vitiated by virtue of misreading of a document or admitting the documents in evidence which could not have been admitted it would constitute a substantial question of law and this Court under Section 100 of the Code is competent to adjudicate on the issue. The learned counsel has maintained that perusal of Ex. D-4 mentions the date of death of Hoshiari. Neither the name of her father nor the name of her husband has been mentioned. According to the learned counsel there is a mystery created by Ex. D-4 which is required to be settled by remanding the case to the Courts below after according permission to the plaintiff-appellant to adduce evidence on the issue. Learned counsel has also pressed his application for adducing of additional evidence by placing on record documents marked A-1 and A-2. Learned counsel has further submitted that the Courts below have relied upon the technicalities for discarding the Will which is otherwise a genuine document. The Will could not have been discarded on the ground that there is interpolation against the mentioning of the year 1976 or 1978 which would not make a material distinction. Learned counsel has also raised another argument that the statement made before the criminal Courts cannot constitute, supporting evidence and could not have been considered in civil litigation. Learned counsel has made reference to the statement of Arjan Singh Ex. D-6 and Ex. D-9 statement of Raghbir Singh, plaintiff-appellant. The aforementioned statements have been discussed in para 12 of the judgment of the Ld. District Judge as admission where the testator Hoshiar Singh has admitted to be living with Hargobind and all his produce and belongings were stated to be with Hargobind. 9. Shri S.C. Kapoor, Senior Advocate, has argued that proper issues were framed and even if there were no proper issues, issue No. 2 is all pervasive which is to the effect whether the mutation of inheritance in respect of estate of Hoshiar Singh, deceased, in favour of defendant-respondent Nos. 9. Shri S.C. Kapoor, Senior Advocate, has argued that proper issues were framed and even if there were no proper issues, issue No. 2 is all pervasive which is to the effect whether the mutation of inheritance in respect of estate of Hoshiar Singh, deceased, in favour of defendant-respondent Nos. 1 to 3 is illegal, void ab initio and not binding on the rights of the plaintiff- appellant. Learned counsel has maintained that the plaintiff-appellant was completely alive to the case and have also led evidence to prove Hoshiari was not born from the wedlock of Bhag Singh and Nihali. According to the learned counsel once the parties have led evidence by understanding the facts of the case properly then even in the absence of an issue on those facts, the relief can be refused or granted. In support of his submission, reliance has been placed on two judgments of the Supreme Court in the cases of Shaikh Mohammad Umarsaheb v. Kalaskar Hasham Karimsab and another, AIR 1970 SC 61 and Bhairab Chandra Nandan v. Randhir Chandra Dutta, AIR 1988 SC 396. 10. Learned counsel has then drawn my attention to the contents of Ex. P-4 to show that on 27.1.1910 a girl was born to Bhag Singh son of Kalu and once the name of father is mentioned then it would not be possible to entertain any doubt about Hoshiari who was born on that day from the wedlock of Bhag Singh and Nihali. He has also made reference to Ex. P-3, the birth certificate in respect of the son born to Bhag Singh on 12.5.1905 and argued that the findings recorded by the Courts below are based on documentary evidence as well as the oral statements made by various witnesses. Learned counsel has vehemently argued that these are concurrent findings of facts and even if another view by this Court is possible after re-appreciation of evidence, it may not be permissible under Section 100 of the Code. With regard to the Will Ex. P-1, the learned counsel has maintained that both the Courts below have concurrently found that the Will is not a genuine document as the date of execution has been interpolated. The scribe of the Will has not been able to produce the Deed Writers Register and his Deed Writers licence has been cancelled. The relationship between the parties have been established beyond doubt. The scribe of the Will has not been able to produce the Deed Writers Register and his Deed Writers licence has been cancelled. The relationship between the parties have been established beyond doubt. He has also opposed the application for adducing of additional evidence at this stage by bringing on record documents A-1 and A-2 with Civil Misc. No. 2506-CI of 2001 by arguing that at this belated stage no additional evidence could be entertained as it would amount to de novo trial. 11. After hearing learned counsel for the parties at a considerable length, I am of the considered view that these appeals are devoid of any merit. The Will Ex. P-1 dated 31.12.1976 is surrounded by numerous suspicious circumstances as has already been observed in the paras above. It has been found that the Will was executed in 1978 when testator Hoshiar Singh had already died on 29.7.1977. Moreover, the statements of attesting witnesses Gajraj PW-5 and Gajpat PW-3 have been found sufficient to show that the Will was executed in 1978. The scribe of the Will Narjeet Pal PW-4 has also failed to produce his deed-writers register of the year 1976 and he has to lose his deed-writers licence on that count. The statements made at the time of their prosecution under Section 302 IPC by plaintiff-appellants Arjan Singh and Raghbir Singh (Exs. D-6 and D-9 respectively) are contradictory to the statements made before the Civil Court in the instant appeals. Before the Criminal Court, the stand taken was that Arjan Singh had been living with Hargobind and all his produce and belongings were used to be with Hargobind, whereas in the statements made before the civil Court in the instant proceedings, it was claimed that testator Hoshiar Singh has executed the Will on account of services rendered by Arjan Singh as he used to live with him at Bukharpur. It is well settled that onus to prove the Will is on its propounder which the plaintiff-appellants have miserably failed to discharge. The attesting witnesses Gajpat PW-3 and Gajraj PW-5 have failed to testify the genuineness and correctness of the Will. Therefore, the requirement of Section 63 of the Indian Succession Act, 1925 (for brevity, the Act), has not been fulfilled. The attesting witnesses Gajpat PW-3 and Gajraj PW-5 have failed to testify the genuineness and correctness of the Will. Therefore, the requirement of Section 63 of the Indian Succession Act, 1925 (for brevity, the Act), has not been fulfilled. The aforementioned section along with Sections 67 and 68 of the Indian Evidence Act, 1872 have been subject matter of discussion by the Supreme Court in numerous judgments and it has been held that if the propounder fails to prove the Will in accordance with Section 63 of the Act, then the Will must be discarded. It has also been held that the suspicious circumstances have to be satisfactorily explained by the propounder. Reference may be made to various judgments of the Supreme Court in the cases of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443; Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567; Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529; Surinder Pal v. Saraswati Arora (Dr.), 1974(2) SCC 6006; P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, 1995 Supp. (2) SCC 664; Sadasivam v. K. Doraisamy, 1996(8) SCC 624 and Uma Devi Nambiar v. T.C. Sidham, 2004(2) SCC 321. 12. Moreover, these are concurrent findings of facts recorded by both the Courts below which would not merit interference by this Court under Section 100 of the Code. The findings are fully supported by cogent evidence on record and are not open to any doubt with regard to their correctness. 13. The argument that an issue with regard to the parentage of Hoshiari was required to be framed, does not merit acceptance because issue No. 2 is all pervasive which included the issue of parentage of Hoshiari. Issue No. 2 pertains to the question whether mutation of inheritance in respect of estate of Hoshiar Singh deceased in favour of the children of Hoshiari was illegal or void would naturally include the question whether Hoshiari was successor of Bhag Singh and Nihali. In other words, the question would be whether Hoshiari was sister of Hoshiar Singh. A perusal of both the judgments and decrees passed by the Courts below shows that the parties have understood the issue with regard to the parentage of Hoshiari and with that understanding have led and evidence. Even the findings have been recorded by both the Courts below on that issue. A perusal of both the judgments and decrees passed by the Courts below shows that the parties have understood the issue with regard to the parentage of Hoshiari and with that understanding have led and evidence. Even the findings have been recorded by both the Courts below on that issue. In the facts and circumstances of this case, it must be concluded that once the parties have led evidence by understanding the issues properly, then the absence of framing of an issue would not result into prejudice to them. The aforementioned view has been supported by the judgments of the Supreme Court in the cases of Shaik Mohammad Umar Sahib (supra) and Bhairab Chandra Nandan (supra). 14. The other argument that the statements Exs. D-6 and D-9 made by Arjan Singh and Raghbir Singh respectively in the criminal proceedings cannot be accepted in civil proceedings is liable to be rejected because there is no absolute rule as to the admissibility of evidence recorded in one type of proceedings or in other type of proceedings. If a statement has been recorded in a criminal case, there is no absolute bar for reading the same in the civil proceedings, although there may be difference as to how much weight should be attached to such evidence. If a statement is made in civil proceedings and the same is sought to be adduced before the criminal Court, then in the absence of its corroboration in material particulars, it may not be considered sufficient to sustain a conviction. In the present case, the statement made before the criminal Court by the plaintiff-appellants Arjan Singh and Raghbir Singh Exs. D-6 and D-9 respectively have been taken into consideration to show the contradictory stands taken by them in the two proceedings. Those statements by themselves and in the absence of any other evidence may not constitute a basis for recording a finding that the Will is not a genuine document. However, in the instant case, there is ample evidence other than the statements Exs. D-6 and D-9 to record a conclusion that the Will Ex. P-1 dated 31.12.1976 is not a genuine document. Therefore, there is no illegality committed by the Courts below by reading the statements Exs. D-6 and D-9 as a corroborative piece of proof. Even otherwise, I am of the view that the statements Exs. D-6 and D-9 to record a conclusion that the Will Ex. P-1 dated 31.12.1976 is not a genuine document. Therefore, there is no illegality committed by the Courts below by reading the statements Exs. D-6 and D-9 as a corroborative piece of proof. Even otherwise, I am of the view that the statements Exs. D-6 and D-9 if excluded from the consideration, the findings case still be sustained. Therefore, I do not find any substance in the argument raised on behalf of learned counsel for the plaintiff-appellants. 15. The criticism based on death certificate of Hoshiari Ex. D-4 by learned counsel for the plaintiff-appellants is unwarranted. The learned counsel has argued that the death certificate Ex. D-4 did not mention the name of her father or the name of her husband and, therefore, no inference of relationship of Hoshiari with Bhag Singh could have been raised. A perusal of the judgment of the learned District Judge would reveal that the document Ex. D-4 has not been relied upon for the purposes of raising an inference about the relationship of Hoshiari with Bhag Singh. As is evident from paragraphs 26, 27 and 28 of the impugned judgment reproduced above, the pointed question posed by the learned District Judge is whether Hoshiari was the mother of defendant-respondents 1 to 3 and was the daughter of Bhag Singh. The Courts below have discarded Ex. P-5 dated 27.1.1910 to conclude that the certificate did not relate to the death of a female child born to Nihali from Bhag Singh who is stated to have died 10 or 12 days after her birth. No other certificate by the plaintiff-appellants was produced to strengthen their stand that Hoshiari was not born out of the wedlock of Smt. Nihali with Bhag Singh. The document Ex. D-4 merely states that Hoshiari died on 29.3.1938 at Village Dialpur and there is no entry with regard to her fathers or husbands name. As no reliance has been placed on the certificate and the plaintiff-appellants have failed to prove their own case. Moreover, this argument was not raised before the learned District Judge. The plaintiff-appellant Arjan Singh was under an obligation to prove his own case as the onus to prove issue No. 2 was placed on him. He miserably failed to discharge the onus. Moreover, this argument was not raised before the learned District Judge. The plaintiff-appellant Arjan Singh was under an obligation to prove his own case as the onus to prove issue No. 2 was placed on him. He miserably failed to discharge the onus. Therefore, I do not find any merit in the argument raised by learned counsel for the plaintiff- appellants. 16. The certificates attached with C.M. No. 2506-C of 2001 showing the death of Mst. Kori (Kodi) is already on record. Similarly, the certificate showing the birth of a female child on 27.1.1910 is also already record. Therefore, this application has to be dismissed and it is ordered accordingly. For the reasons recorded above, these appeals fail and the same are dismissed. Appeals dismissed.