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2006 DIGILAW 143 (PNJ)

Kartar Singh v. Giano

2006-01-18

VINEY MITTAL

body2006
Judgment Viney Mittal, J. 1. The plaintiff Kartar Singh having concurrently failed before the two courts below, has approached this Court through the present Regular Second Appeal. 2. Bhagat Singh was the original owner of the property. He had two sons-Kartar Singh and Ajaib Singh. Dhanno and Punnu were his two daughters. Defendant Giano is Punnus daughter, who had died prior to the filing of the suit. Kartar Singh filed the suit claiming that Bhagat Singh, prior to his death, had executed a registered Will dated February 03, 1970 in his favour and thereby, he alone was entitled to succeed to the property of Bhagat Singh to the exclusion of remaining two children and the grand child Giano of Bhagat Singh. He also challenged the mutation which has been sanctioned in favour of all the legal heirs on the death of Bhagat Singh. 3. The suit was contested by defendants No. l and 2. They admitted the relationship between the parties. However, they denied the existence of any Will dated February 3, 1970, having ever been executed by Bhagat Singh. It was claimed by them that the plaintiff was living with his in-laws for the last 40 years, prior to the death of Bhagat Singh and therefore, at no point of time, Bhagat Singh had ever executed any Will in favour of Kartar Singh. 4. Before the trial court, plaintiff produced Girdhari Lal, scribe of the Will (Ex. P-1) as PW-1, Bhagwan Singh was produced as PW-2. The aforesaid Bhagwan Singh was shown as attesting witness of the Will. However, during the course of his examination, he died not support the plaintiff and therefore, was declared hostile by trial court. PW-3 Rakha Ram is a Registration Clerk. Besides the aforesaid evidence, plaintiff himself appeared as PW-4. The remaining attesting witness of the alleged Will namely Gumam Singh was not produced by the plaintiff before the trial Court. 5. The learned trial court, on the basis of evidence available on the record, examined the controversy and came to the conclusion that the Will (Ex.P-1) dated February 3, 1970, was not shown to be proved in accordance with law. Consequently, the claim of the plaintiff was rejected. Consequently, the learned trial court declared that all the legal heirs would be entitled to succeed the property of Bhagat Singh. 6. The plaintiff took up matter in appeal. Consequently, the claim of the plaintiff was rejected. Consequently, the learned trial court declared that all the legal heirs would be entitled to succeed the property of Bhagat Singh. 6. The plaintiff took up matter in appeal. In appeal, the plaintiff also filed an application under Order XLI Rule 27 of the Civil Procedure Code for leading additional evidence. Through the aforesaid application, it was requested that the plaintiff be permitted to examine Gurnam Singh. The learned first appellate court considered the aforesaid request of the plaintiff but found that at the belated stage, the plaintiff could not be permitted to examine Gurnam Singh since no reasons had been given for non-production of the aforesaid Gurnam Singh before the trial Court. As a matter of fact, Gumam Singh was summoned through Bailable Warrants, Originally by the trial Court and was given up by the plaintiff. Consequently, the application for additional evidence was dismissed. 7. The learned first appellate court also re-appraised the evidence available on the record. It found that only two persons, who had supported the Will namely PW-1 Girdhari Lal and PW-3 Ram Rakha, registration clerk could not be taken to be the attesting witnesses of the Will. Girdhari Lal specifically deposed that he did not know the witnesses or the testator Bhagat Singh personally. Similar statement was made by PW-3 Ram Rakha, registration clerk. In these circumstances, the learned first appellate court also found that due execution of the Will was not proved by the plaintiff. Consequently, the appeal filed by the plaintiff also failed before the first appellate court. 8. The plaintiff has now approached this Court through the present Regular Second Appeal. 9. In the present appeal also, the plaintiff has filed an application under Order XLI Rule 27 and along with the aforesaid application, an affidavit of Gumam Singh has been filed. In the application for additional evidence, the plaintiff has stated as follows: That the appellant inspite of due diligence could not produce Shri Gurnam Singh as appellant has lived out of the village Sundal and Defendant No. 2 has managed with the witness not to support the genuine execution of the said will and in such circumstances the ingredients of the Order 41 Rule 27 Civil Procedure Code are fulfilled. 10. 10. From the aforesaid averments made in the application, it appears that as per the cause put up by the plaintiff, the aforesaid Gurnam Singh, at one point of time, was won over by the defendants and as such, the plaintiff could not produce him. Now, along with the application, affidavit of Gurnam Singh has also been filed. In the aforesaid affidavit, Gurnam Singh has stated that he was the attesting witness of the Will dated February 3, 1970 executed by Bhagat Singh. Gurnam Singh appears to be a man of vacillating character. As per the averments of the appellant himself, at one point of time, he was siding with the defendants. It appears that in the meantime, the plaintiff has managed to win him over. In the circumstances, he has now filed an affidavit to support the appellant. No reliance on the aforesaid affidavit of such a person can be placed. In these circumstances, the application for additional evidence, filed by the appellant, is absolutely without any basis and the same is dismissed. 11. I have heard Shri Munishwar Puri, learned Counsel appearing for the appellant and Shri Amit Jhanji, learned Counsel appearing for the respondent and with their assistance, have also gone through the record of the case, 12. Shri Munishwar Puri has argued that as per Section 60 of the Registration Act, there was an endorsement Ex.P-2 on the Will Ex.P-1. Shri Puri has contended that as per the aforesaid provision, the endorsement on the Will itself was sufficient to prove the due execution of the Will. It has been contended that Girdhari Lal PW-1 as well as Ram Rakha, registration clerk PW-3 have duly stated that they had scribed the Will and the same was registered as per the desire of Bhagat Singh. On that account, Shri Puri has urged this Court to hold that the Will in question is fully proved. 13. Having given my thoughtful consideration to the contentions of the learned Counsel, I find myself unable to agree with the same. 14. I have gone through the statement of PW-1 Girdhari Lal and also the statement of PW-3 Ram Rakha. In their cross-examination, both the aforesaid witnesses have categorically admitted that they did not know the witnesses or the testator Bhagat Singh personally. 14. I have gone through the statement of PW-1 Girdhari Lal and also the statement of PW-3 Ram Rakha. In their cross-examination, both the aforesaid witnesses have categorically admitted that they did not know the witnesses or the testator Bhagat Singh personally. In these circumstances, it has not been shown at all by the plaintiff that Bhagat Singh, at any point of time, had executed the will Ex.P-1. 15. It is well settled proposition of law that mere registration of a document does not prove its execution. However, even if it is taken that there was endorsement Ex.P-2 on the Will Ex.P-1, the said endorsement cannot be shown to have been made on the asking of Bhagat Singh, who was father of plaintiff Kartar Singh. The Will in question, in fact, has not been proved in accordance with requirements of Section 68 of Indian Succession Act, 1925. It was for the plaintiff to have led such evidence as is required under law to prove his case. He has been unable to do so. 16. Accordingly, the findings recorded by both the courts below cannot be held to be suffering from any infirmity or being contrary to the record. 17. No other point has been urged. In view of the aforesaid discussion, I do not find that any question of law, much less any substantial question of law, arises in the present appeal. 18. There being no merit in the present appeal, the same, is accordingly dismissed.