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2005 DIGILAW 667 (PNJ)

Ram Kishan v. Joginder Singh

2005-05-31

ADARSH KUMAR GOEL

body2005
Judgment Adarsh Kumar Goel, J. 1. This order will dispose of RSA No. 396 of 1983 filed by Gurmail Singh, plaintiff in Suit No. 212 of 1977 and R.S.A. No. 2017 of 1982 filed by Ram Kishan, defendant in the said suit and also in connected suit No. 15 of 1977 filed by Joginder Singh father of Gurmail Singh (Joginder Singh having died, his son Gurmail Singh has been substituted as his legal heir) and Cross Objection No. 5 of 1993 in R.S.A. No. 2017 of 1982 (filed by Joginder Singh). All the three matters arise out of common judgment of the Courts below. 2. The dispute relates to the estate of Dalip Singh who died on 1.8.1975. Joginder Singh claimed inheritance as brother of Dalip Singhs father, challenging Will dated 11.7.1975. Ex.D-5 in favour of Ram Kishan and gift dated 27.6.1975, Ex.D-2 in favour of sons of Ram Kishan - Baldev Singh, Malvinder Singh, Sukhvinder Singh and Baljit Singh. 3. Gurmail Singh claimed inheritance on the basis of Will dated 18.7.1975, Ex.P-1 and also challenged Will dated 11.7.1975 and gift dated 27.6.1975, aforesaid. 4. The Courts below rejected the Will set up by Gurmail Singh, Ex.P-1 and dismissed suit filed by him. The trial Court dismissed the suit filed by Joginder Singh also, upholding the Will Ex.D-5 and gift Ex.D-2. In para 20, detailed reasons were given for upholding the said Will and the gift. The said reasons being: (i) the documents were scribed by a regular deed writer; (ii) the attesting witnesses proved due execution; (iii) the parties appeared before the Sub-Registrar and there was endorsement of the said Sub-Registrar on the documents; (iv) Dalip Singh explained in the said documents that Joginder Singh and Gurmail Singh were inimical to him; (v) Ex.D-5 also states that Ram Kishan was being treated as Dharam Bhai (foster brother) by Dalip Singh; (vi) Ex.D-5 also states that Ram Kishan was being treated as Dharam Bhai (foster brother) by Dalip Singh; (vii) Dalip Singh was proved to have been living with Ram Kishan and his sons who were looking after him. 5. 5. The trial Court also gave detailed reasons for rejecting the Will Ex.P-1, the same being: (i) Will was not scribed by a regular deed writer; (ii) document Exs.D-2 and D-5 which were proved to have.been duly executed, were not mentioned in the Will; (iii) there were discrepancies in the evidence of attesting witness. 6. On appeal, finding of the trial Court on the issue of validity of Will Ex.P-1 was upheld.The lower appellate Court in paras 11 to 17 affirmed the reasons given by the trial Court. 7. The lower. appellate Court also upheld finding of the trial Court on validity of gift-deed Ex.D-2. The matter has been discussed in para 26 of this judgment. 8. The lower appellate Court, however, reversed the finding of the trial Court on the issue of validity of Will Ex.D-5 for the reasons in paras 18 to 25 of its judgment. 9. Thus, Ram Kishan is aggrieved by rejection of Will dated 11.5.1975, Ex.D-5 while Joginder Singh is aggrieved by acceptance of gift dated 27.6 1975, Ex.D-2. 10. Learned counsel for the parties submit that findings of the Courts below are contradictory inasmuch as gift dated 27.6.1975, Ex.D-2 has been held to be valid and the Will dated 11.7.1975, Ex.D-5 has been held to be suspicious. 11. Learned counsel for Ram Kishan submitted that gift having been upheld, the Will should also have been held to be genuine. Learned counsel for Joginder Singh submitted that the Will having been held to be suspicious, gift is also liable to be rejected for the same reason. 12. I have considered the rival submissions and perused the record. 13. I first take up the case of Joginder Singh. His suit to the extent of challenging gift-deed has been dismissed by the Courts below by recording a concurrent finding about due execution and about there being no suspicious circumstance. Mr. Setia, learned counsel for Joginder Singh has not been able to show any substantial question of law and his only contention is that since Will in favour of Ram Kishan has been rejected on account of suspicious circumstances, the same reasoning should have been adopted for holding the gift to be suspicious. Mr. Setia, learned counsel for Joginder Singh has not been able to show any substantial question of law and his only contention is that since Will in favour of Ram Kishan has been rejected on account of suspicious circumstances, the same reasoning should have been adopted for holding the gift to be suspicious. This contention has been opposed by the learned counsel for Ram Kishan and his sons, Shri Cheema on the ground that the question was of fact and that having rejected will Ex.P-1 in favour of Gurmail Singh which was not even supported by his father Joginder Singh, could not be allowed to take over the suit property. He submitted that concurrent findings of the Courts below on the question of validity of Will Ex.P-1 as well as validity of gift Ex.D-2 cannot be held to be perverse and in absence thereof, no interference is called for in second appeal. 14. I find merit in the submissions advanced by the learned counsel for Ram Kishan. I am unable to hold that concurrent findings recorded by the Courts below rejecting Will Ex.P-1 and accepting gift Ex.D-2 are perverse. The said findings are, therefore, upheld and appeal filed by Gurmail Singh, R.S.A. No. 396 of 1983 and Cross Objection No. 5 of 1983 are, thus, liable to be dismissed. 15. I now take up R.S.A. No. 2017 of 1982 filed byRam Kishan. Mr. Cheema submitted that the lower appellate Court erred in reversing the finding of the trial Court on the issue of validity of Will, Ex.D-5. The trial Court held Ex.D-5 to be valid by believing that Dalip Singh was being served by Ram Kishan and his sons and his relations with Joginder Singh and Gurmail Singh were not good. The Will was registered document and its execution was duly proved by the attesting witnesses and the scribe. It was submitted that reasons given by the lower appellate Court in paras 18 to 25 are not valid. The Will was registered document and its execution was duly proved by the attesting witnesses and the scribe. It was submitted that reasons given by the lower appellate Court in paras 18 to 25 are not valid. The said reasons are: (i) Ram Kishan is not related to Dalip Singh who had a living uncle Joginder Singh and cousin Gurmail Singh; (ii) Dalip Singh was brought up by his mothers sister whose children were living who had been ignored without any explanation; (iii) Ram Kishan was living at Ludhiana and there was no possibility of his rendering services to Dalip Singh; (iv) Dalip Singh was ill for the last three-four months and no medical certificate was produced by Dalip Singh; (v) Except the statement of Ram Kishan, DW-8, there was no evidence to show that Dalip Singh was treating Ram Kishan to be his Dharam Bhai (foster brother); (vi) There was no adequate material to show that Joginder Singh and Gurmail Singh were inimical to Dalip Singh, even though, they may not be helping Dalip Singh; (vii) Dalip Singh was suffering .from cancer and Will was executed 20 days before the death;, (viii) No reference has been made to gift dated 27.6.1975; 16. Learned counsel further submitted that findings of the lower appellate Court are contradictory. Once gift-deed was upheld and Will Ex.P-1 was rejected, the above reasons were unsustainable. 17. Learned counsel fqr Joginder Singh submitted that the contentions raised by learned counsel for Ram Kishan are in the realm of appreciation of evidence and even if finding of the lower appellate Court was erroneous, the same could not be held to be perverse, even if two views are possible. 18. After considering the rival submissions, I find merit in the contentions raised by learned counsel for Ram Kishan. 19. I have already affirmed concurrent findings of the Courts below, rejecting Will Ex.P-1 and upholding gift-deed Ex.D-2. The reasons given by the lower appellate Court in rejecting Will Ex.D-5 are perverse. In para 26, the lower appellate Court itself held that only challenge to the gift-deed was that it was not accompanied by delivery of possession while in fact, possession had been delivered. Execution of Will stood proved and was not disputed. The reasons given by the lower appellate Court in rejecting Will Ex.D-5 are perverse. In para 26, the lower appellate Court itself held that only challenge to the gift-deed was that it was not accompanied by delivery of possession while in fact, possession had been delivered. Execution of Will stood proved and was not disputed. Suspicious circumstances which have been accepted while setting aside Will Ex.D-5 were not even raised on behalf of Joginder Singh in attacking Ex.D-2 which was also a document executed almost for the same reasons and in the same c cumstances. Thus, it cannot be held that two views are possible on the issue of Will Ex.D-5. Once gift Ex.D-2 is upheld, Will, Ex.D-5 could not be set aside. The lower appellate Court while upholding gift Ex.D-2 approved the reasons given by the trial Court which were the same for upholding Ex.D-2 as well as Ex.D-5. Merely because Ram Kishan was living in Ludhiana, could not be a ground to hold that he was not rendering services to Dalip Singh which reason is inconsistent with upholding of the gift-deed Ex.D-2 in favour of sons of Ram Kishan. Not making a mention of children of mothers sister could also not be said to be suspicious circumstance, as beyond the fact that Dalip Singh lived with his mothers sister in childhood, there was nothing to show that he was being looked after by his mothers sister or her children in any manner. Again, if gift has been upheld and this reason was not considered valid against upholding of the gift, there is no reason to hold the Will to be suspicious on this ground. Same is the position with regard to other reasons of exclusion of Joginder Singh and Gurmail Singh, Dalip Singh being ill for 3-4 months before executing the documents, motive of Dalip Singh for making Will in favour of Ram Kishan. Thus, finding of the lower appellate Court is perverse. Perversity itself is a ground for interference in second appeal. 20. Accordingly, R.S.A. No. 396 of 1983 and Cross Objection No. 5 of 1983 are dismissed. R.S.A. No. 2017 of 1982 filed by Ram Kishan is allowed and decree of the lower appellate Court on the question of validity of Ex.D-5 is set aside and that of the trial Court is restored. No costs.