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2007 DIGILAW 1605 (PNJ)

Jarant Singh v. Sukhjinder Singh

2007-09-05

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This Regular Second Appeal has been filed against the judgment and decree dated 2.4.1984 passed by the learned Additional District Judge, Amritsar, vide which decree for joint possession in favour of the plaintiff-passed by the learned trial Court was ordered to be set aside and the suit filed by the plaintiff was ordered to be dismissed. 2. Plaintiff-Jarant Singh filed a suit for joint possession of 1/5th share out of half share of agricultural land measuring 407 kanals 13 marlas fully described in the heading of the plaint, situated in the area of village Takhtuchak. Defendant Nos. 3 and 6, who were minors, have been sued through their next friends and legal guardians-Harbans Singh, defendant No. 1 and Pargat Singh, defendant No. 4 respectively. The plaintiff claimed that Sohan Singh son of Bhagat Singh was owner of half share of agricultural land measuring 407 kanals 13 marlas fully described in the heading of the plaint and the said Sohan Singh along with his wife Gurdeep Kaur was murdered on 2.8.1980 regarding which criminal case was registered against Puran Singh, defendant No. 11 and his sons. The said Sohan Singh had no issue and as per the pedigreetable given in the plaint, plaintiff-Jarant Singh is the son of Assa Singh, brother of Sohan Singh. It was further claimed that Assa Singh was real brother and Indo and Jeo were real sisters of the said Sohan Singh and that the said Asa Singh, Indo and Jeo were all dead when the suit was filed. Plaintiff and defendant Nos. 7 and 8 were sons and daughter of the said Assa Singh. Ajaib Singh was stated to be another son of Assa Singh, who pre- deceased him. Smt. Aas Kaur, defendant No. 9 is daughter of Jeo and defendant No. 10 Dhanti was the daughter of Puran Singh, defendant No. 11, who was son of the said Smt. Indo. It was claimed that the plaintiff and defendant Nos. 7 to 11 are the nearest heirs of the deceased Sohan Singh. 3. It was the case of the plaintiff that Puran Singh had committed the murder of Sohan Singh. Therefore, Puran Singh is disqualified to inherit the estate of the deceased Sohan Singh. Thus, it was claimed that defendant Nos. It was claimed that the plaintiff and defendant Nos. 7 to 11 are the nearest heirs of the deceased Sohan Singh. 3. It was the case of the plaintiff that Puran Singh had committed the murder of Sohan Singh. Therefore, Puran Singh is disqualified to inherit the estate of the deceased Sohan Singh. Thus, it was claimed that defendant Nos. 7 to 10 are only entitled to inherit the estate of the deceased Sohan Singh in equal shares i.e. 1/5 each out of the property held by him and, therefore, decree for joint possession was claimed. 4. The suit was contested by defendant Nos. 1 to 7, 9 and 11, who denied the averments made in the plaint. Defendant Nos. 1 to 7 denied any relationship of the plaintiff with Assa Singh or the said Sohan Singh, and also denied the relationship of Indo or Jeo with the said Sohan Singh. It was claimed that the deceased Sohan Singh through his last and valid Will dated 2.7.1980 bequeathed his half share in agricultural land measuring 407 kanals 13 marlas in their favour and thus they became its exclusive owners on the basis of the said Will. It was further claimed that the plaintiff or anybody else has no concern or connection with the same. Defendant No. 9 Aas Kaur though supported the averments made in the plaint, but she denied that plaintiff was entitled to 1/5th share in the suit land and it was claimed that the estate of Sohan Singh was to be inherited equally i.e. 1/3rd share each by the heirs of Jeo, Indo and Assa Singh. She claimed to be entitled to 1/3rd share in the property being the only daughter of Jeo. She also asserted that the plaintiff was entitled to 1/9th share only in the disputed property. 5. Defendant No. 11 through separate written statement denied having murdered Sohan Singh or his wife and pleaded that he was entitled to succeed to the property of the deceased Sohan Singh to the extent of 1/3rd share along with his sister Dhanti. The claim of the plaintiff to 1/5th share in the property was disputed. Defendant No. 10 did not contest the suit. The other defendants were proceeded ex parte. 6. The claim of the plaintiff to 1/5th share in the property was disputed. Defendant No. 10 did not contest the suit. The other defendants were proceeded ex parte. 6. After filing of the replication and in view of the pleadings of the parties, the learned trial Court was pleased to frame the following issues :- "1. Whether the plaintiff is the nearest heir of late Sohan Singh to the extent of 1/5th share in the disputed property ? OPP 2. Whether Puran Singh defendant No. 7 is debarred from inheriting the property left by Sohan Singh as alleged ? OPP 3. Whether Sohan Singh deceased executed the Will dated 2.7.1980 in favour of defendant Nos. 1 to 7 ? OPD (1 to 7) 4. Relief." On issue No. 1, on appreciation of evidence on record, the learned trial Court recorded a concurrent finding holding that the plaintiff is a nearest heir of deceased Sohan Singh and was entitled to succeed to only 1/6th share in the suit land left behind by him instead of 1/5th share as claimed by him. 7. On issue No. 2, it was held that Puran Singh, defendant No. 11 was also entitled to 1/6th share in the suit property as he was not found guilty of murdering the said Sohan Singh or his wife. 8. On issue No. 3, it was held that defendant Nos. 1 to 6 failed to establish the due execution of the Will dated 2.7.1980 by the deceased Sohan Singh in their favour. The Will was held to be unnatural and surrounded by suspicious circumstances. It was also held to be a false document and was fabricated by Hardyal Singh, DW-1 in connivance with or at the instance of Mohinder Singh or defendant Nos. 1 to 6. Thus issue No. 3 was decided against defendant Nos. 1 to 6. Consequently, the suit filed by the plaintiff-appellant was decreed against the defendants for joint possession of 1/6th share out of half share of agricultural land measuring 407 kanals 13 marlas, fully described in the heading of the plaint. 9. In order to record a finding on issue No. 3 against defendant Nos. 1 to 6, the learned trial Court was pleased to hold the following suspicious circumstances arising in the appeal :- (i) DW-1, who scribed the Will in question, was a real brother of defendant Nos. 9. In order to record a finding on issue No. 3 against defendant Nos. 1 to 6, the learned trial Court was pleased to hold the following suspicious circumstances arising in the appeal :- (i) DW-1, who scribed the Will in question, was a real brother of defendant Nos. 4 to 6 and, therefore, interested in them. (ii) The evidence of DW-1 was held to be untrustworthy. (iii) The theory of service to the deceased by all the defendants was held to be belied from the fact that during his life time the said Sohan Singh had launched security proceedings under Section 107/151 Criminal Procedure Code against defendant Harbans Singh and his brother. (iv) The Will was not proved on record by any attesting witness in spite of number of opportunities having been granted to the defendants including the last opportunity for the production of their evidence. (v) The Will was an unregistered document and, therefore, was capable of being fabricated any time by a person like DW-1 and DW-2. (vi) The attesting witnesses of the Will were closely associated with the scribe of the Will. (vii) The Will was found absolutely unnatural and unconvincing for the reason that defendant Nos. 1 to 3 were sons of Ajaib Singh, who died 10 years prior to the murder of Sohan Singh and therefore was not held to be his close relation, whereas defendant Nos. 4 to 7, who are sons of Mohinder Singh, Sarpanch, AW-2, an attesting witness to the document, were not related to the deceased in any manner. (viii) No explanation was given in the Will for exclusion of close relations/heirs of the deceased. (ix) The Will was not got scribed from a licensed deed writer. Before the learned lower Appellate Court an application was moved under Order 41 Rule 27 CPC for production of additional evidence for proving the Will. After the additional evidence was allowed, the learned lower Appellate Court came to the conclusion that the execution of the Will stood proved on record from the deposition of Ajit Singh, AW-1, Mohinder Singh, Sarpanch, AW-2, and also from its scribe Hardial Singh, DW-1. 10. The learned lower Appellate Court also came to the conclusion that merely because Mohinder Singh, Sarpanch, one of the attesting witnesses of the Will, was father of the beneficiaries, was not a ground to discard his testimony. 10. The learned lower Appellate Court also came to the conclusion that merely because Mohinder Singh, Sarpanch, one of the attesting witnesses of the Will, was father of the beneficiaries, was not a ground to discard his testimony. It was also held that merely because Hardial Singh was not a licensed deed writer or a regular scribe, could not be a ground to reject his testimony. The learned lower Appellate Court also came to the conclusion that the Will in favour of strangers could also not be a ground to set aside the same, as the Will was executed in favour of three sets of legatees. It was observed by the learned lower Appellate Court that two sets of legatees were closely related to Sohan Singh, testator, whereas third set of legatees had good relations with Sohan Singh, deceased and, therefore, he could have willed away his property in their favour. 11. It was also held by the learned lower Appellate Court that merely because the plaintiff and other defendants were dis-inherited by the Will, could not be a ground to discard the Will in any manner. The learned lower Appellate Court also came to the conclusion that merely because the Will was not got registered during the life time of testator, was no ground to discard the same, as the unregistered Will has the same force/effect in law as the registered Will has. 12. The learned lower Appellate Court also came to the conclusion that even non-mention in the Will as to why the legal heirs of the deceased were being deprived of their natural inheritance, could not be a ground to reject the same. The learned lower Appellate Court also observed that after the death of Sohan Singh Testator, once the Will was registered, it was to be presumed that the Sub Registrar has held the due inquiry and, therefore, satisfied himself about the Will. It was also held by the learned lower Appellate Court that no circumstances were brought on record by the plaintiff to show that the Will in question was a false or fabricated document. It was also held that as the execution of the Will has been proved on record, the findings on Issue No. 3 deserved to be reversed. It was also held by the learned lower Appellate Court that no circumstances were brought on record by the plaintiff to show that the Will in question was a false or fabricated document. It was also held that as the execution of the Will has been proved on record, the findings on Issue No. 3 deserved to be reversed. On account of reversal of findings on issue No. 3, the appeal was accepted and the judgment and decree passed by the learned trial Court were set aside. 13. Mr. Harkesh Manuja, learned counsel appearing on behalf of the appellants, raised the following substantial questions of law for consideration :- "1. Whether a Will in favour of a stranger is a suspicious circumstance ? 2. Whether no cross-examination of a witness on a particular point by a party will amount to admission on its part ? 3. Whether adverse inference has to be drawn against respondent Nos. 4 to 6 on account of their non-appearance in support of the Will and their intimacy with the deceased ? 4. Whether the Appellate Court can permit a party to fill up lacuna by leading additional evidence ?" Learned counsel appearing on behalf of the appellants, by invoking the provisions of Order 43 Rule 1-A of the Code of Civil Procedure, contended that the order passed by the learned lower Appellate Court permitting the defendant-respondents herein to lead additional evidence on an application moved under Order 41 Rule 27, CPC was not sustainable in the eyes of law. 14. The contention of the learned counsel for the appellant was that in spite of availing number of opportunities, the defendant-respondents had failed to lead evidence for proving the Will. After issue No. 3 was decided against them by the learned trial Court for want of evidence, the learned lower Appellate Court was not justified in allowing the defendant-respondents to prove the Will by way of additional evidence. According to the learned counsel for the appellants, the application moved by the defendant-respondents under Order 41, Rule 27 of the Code of Civil Procedure, in fact, was an attempt to fill up the lacuna which is not permissible in law. There is force in this contention. However, this matter need not be gone into any further, as even otherwise, the present appeal deserves to succeed. There is force in this contention. However, this matter need not be gone into any further, as even otherwise, the present appeal deserves to succeed. The reading of the order passed by the learned lower Appellate Court shows that the findings recorded by the learned trial Court have been reversed without assigning sufficient reasons therefor. 15. It was further contended by the learned counsel for the appellants that the learned lower Appellate Court has failed to notice that the Will in favour of a complete stranger is suspicious circumstance in absence of evidence to prove as to how a stranger came close to the testator as held by the Honble Supreme Court in the case of Benga Behera and another v. Braja Kishaore Nanda and others, 2007(3) R.A.J. 242. 16. In the present case also, the Sill is in favour of defendant Nos. 4 to 6, who were not related to the testator. Leaving aside the leading of evidence of their closeness with the deceased Sohan Singh, they chose even not to appear in the witness box and, therefore, the learned trial Court was fully justified in holding the Will to be surrounded by suspicious circumstances. However, the learned lower Appellate Court reversed the said finding on conjecture and surmises by presuming that the executant may be close to Mohinder Singh Sarpanch. The learned lower Appellate Court has further given no reasons to reverse the findings of the learned trial Court with regard to credibility of the scribe though learned trial Court has recorded a positive finding that his testimony was not trust-worthy and, therefore, it was not open to the learned lower Appellate Court to have reversed the said finding without assigning sufficient reasons therefor. The reason for this is that the trial Court gets an opportunity to seeing the demeanour of the witnesses and, therefore, the conclusion drawn by it with regard to assessment of the evidence cannot be interfered with so lightly, as has been done in the present case. In support of this view, the reliance can be placed on the judgment of the Honble Supreme in the case of Chinthamani Ammal v. Nandagopal Gounder and another, 2007(2) R.A.J. 277, wherein the Honble Supreme Court has been pleased to lay down as under :- "19. In support of this view, the reliance can be placed on the judgment of the Honble Supreme in the case of Chinthamani Ammal v. Nandagopal Gounder and another, 2007(2) R.A.J. 277, wherein the Honble Supreme Court has been pleased to lay down as under :- "19. Furthermore, when the learned trial Judge arrived at a finding on the basis of appreciation of oral evidence, the first Appellate Court could have reversed the same only on assigning sufficient reasons therefor. Save and except the said statement of DW-2, the learned Judge did not consider any other materials brought on records by the parties. 20. In Mandholal v. Official Assistance of Bombay, AIR 1950 Federal Court 21, it was observed : "It is true that a Judge of first instance can never be treated as infalliable in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at, the appeal Court should not lightly interfere with the judgment." (See also Madhusudan Das v. Narayanibai, AIR 1983 SC 114 : 1983(1) SCC 35). 21. In Smt. Rajbir Kaur and another v. S. Chokesiri and Co., 1989 SCC 19, this Court observed : "Reference on the point could also usefully be made to A.L. Goodharts article in which, the learned author points out : "A Judge sitting without a jury must perform dual function. The first function consists in the establishment of the particular facts. This may be described as the perceptive function. It is what you actually perceive by the five senses. It is a datum of experience as distinct from a conclusion. It is obvious that, in almost all cases tried by a judge without a jury, an appellate Court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him." 49. It is obvious that, in almost all cases tried by a judge without a jury, an appellate Court, which has not had an opportunity of seeing the witnesses, must accept his conclusions of fact because it cannot tell on what grounds he reached them and what impression the various witnesses made on him." 49. The following is the statement of same principle in "The Supreme Court practice :" Great weight is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of witnesses, who have been seen and heard by him are material elements in the consideration of the truthfulness of these statements. But the parties to the cause are nevertheless entitled as well on questions of fact as on questions of law to demand the decision of the Court of appeal, and that Court cannot excuse itself from the task of weighing conflicting evidence, and drawing its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. (pp. 854- 55) .... Not to have seen witnesses puts appellate judges in a permanent position of disadvantage against the trial Judge, and unless it can be shown that he has failed to use or has palpably misused his advantage for example has failed to observe inconsistencies or indisputable fact or material probabilities [ibid. and Yulli (1945) p. 15; Watt v. Thomas] the higher Court ought not take the responsibility of reversing conclusions so arrived at merely as the result of their own comparisons and criticisms of the witnesses, and of their view of the probabilities of the case .... (p. 855) ..... But while the Court of Appeal is always reluctant to reject a finding by a judge of the specific or primary facts deposed to by the witnesses, especially when the finding is based on the credibility or bearing of a witness, it is willing to form an independent opinion upon the proper interference (inference ?) to be drawn from it..... (p. 855) 50. (p. 855) 50. A consideration of this aspect would be incomplete without a reference to the observations of B.K. Mukherjea, J., in Sarju Pershad Ramdeo Sahu v. Raja Jwaleshwari Pratap Narain Singh which as a succinct statement of the rule, cannot indeed be bettered : "The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral evidence adduced in the case. In such cases, the appellate Court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Court. This certainly does not mean that when an appeal lies on facts, the appellate Court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judges notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Court should not interfere with the finding of the trial Judge on a question of fact. 51. The area in which the question lies in the present case is the area of the perceptive functions of the trial Judge where the possibility of errors of inference does not play a significant role. The question whether the statement of the witnesses in regard to what was amenable to perception by sensual experience as to what they saw and heard is acceptable or not is the area in which the well known limitation on the powers of the appellate Court to reappreciate the evidence falls. The appellate Court, if it seeks to reverse those findings of fact, must give cogent reasons to demonstrate how the trial Court fell into an obvious error. 52. With respect to the High Court, we think, that what the High Court did was what perhaps even an appellate Court, with full fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. 52. With respect to the High Court, we think, that what the High Court did was what perhaps even an appellate Court, with full fledged appellate jurisdiction would, in the circumstances of the present case, have felt compelled to abstain from and reluctant to do. Contention (c) would also require to be upheld." 22. In Jagannath v. Arulappa and another, 2005(12) SCC 303, this Court while considering the scope of Section 96 of the Code of Civil Procedure opined that it would be wholly improper to allow first appeal without adverting to the specific findings of the trial Court. 23. In H.K.N. Swami v. Irshad Basith (Dead) by LRs., 2005(10) SCC 243, this Court opined that the appellate Court is required to address all the issues and determine the appeal upon assignment of cogent reasons." 17. It may also be noticed that DW-3, one of the attesting witnesses, had stated that no Will was executed by Sohan Singh deceased in favour of the defendants. In view of this clear statement, there was no reason at all for the learned lower Appellate Court to have come to the conclusion that the execution of the Will was duly proved. 18. It is also pertinent to notice that in the Will it is clearly mentioned that the wife of the testator was looking after him. In spite of this, it is not understood as to why there was an occasion to Will away the property in favour of strangers and to give only right of her subsistence with Rs. 200/- per month as maintenance allowance. 19. Mr. M.S. Bedi, learned counsel appearing on behalf of respondent Nos. 1 to 7, however, contended that once the execution of the Will was proved on record by way of additional evidence as allowed by the learned lower Appellate Court, there was full justification to reverse the findings recorded by the learned trial Court. The contention of the learned counsel for the respondents was that participation of beneficiaries at the time of execution of the Will and exclusion of some natural heirs from the beneficiaries cannot in itself, in the absence of any other evidence, be a ground to doubt the validity of the Will. In support of this contention, reliance was placed on the judgment of this Court in the case of Yash Pal Singh v. Raj Pal Singh and others, 2004(1) RCR(Civil) 255 (SC). In support of this contention, reliance was placed on the judgment of this Court in the case of Yash Pal Singh v. Raj Pal Singh and others, 2004(1) RCR(Civil) 255 (SC). However, this contention of the learned counsel for the respondents cannot be accepted as in the present case, it is not only the exclusion of the natural heirs, but the other suspicious circumstances have also been taken note of by the learned trial Court while holding the said Will to be not a genuine document and, therefore, the authority relied upon by the respondents cannot be made applicable to the facts of the present case. 20. Learned counsel for the respondents thereafter placed reliance on the judgment of the Honble Supreme Court in the case of Mst. Sugani v. Rameshwar Dass and another, 2006(4) RCR(Civil) 319 to contend that when two inferences are possible from a given set of circumstances, then view drawn by the lower Appellate Court is binding on the High Court in second appeal and the High Court cannot substitute its own opinion for the opinion of the first Appellate Court unless it is found that the conclusion drawn by the first Appellate Court is erroneous being contrary to the mandatory provisions of law applicable. 21. On a consideration of the matter, I find force in the contentions raised by the learned counsel for the appellants. It cannot be disputed that the learned lower Appellate Court did not give sufficient reasons to set aside the reasoning given by the learned trial Court, for reversal of the findings on issue No. 3. As a matter of fact, the learned lower Appellate Court gave no explanation at all in order to come to a different conclusion. The learned lower Appellate Court, in fact, was swayed by the fact that the attesting witnesses had proved the execution of the Will and the rest of the findings were based on presumptions. As already observed above, the Will was surrounded by suspicious circumstances. 22. It deserves mentioning here that defendant Nos. 4 to 6 chose not to appear in the witness box to prove their closeness with the testator of the Will and, therefore, in view of the judgment of the Honble Supreme Court in Chinthamani Ammals case (supra), the findings of the learned lower Appellate Court are held to be perverse. 22. It deserves mentioning here that defendant Nos. 4 to 6 chose not to appear in the witness box to prove their closeness with the testator of the Will and, therefore, in view of the judgment of the Honble Supreme Court in Chinthamani Ammals case (supra), the findings of the learned lower Appellate Court are held to be perverse. The view taken by the learned lower Appellate Court was not possible in the facts and circumstances of the present case. 23. Consequently, it is held that the Will propounded by the defendant- respondents was surrounded by the suspicious circumstances and further that adverse inference has to be drawn against respondent Nos. 4 to 6 on account of their non-appearance in support of the Will to prove their intimacy with the deceased Sohan Singh. The learned lower Appellate Court was also wrong in allowing additional evidence to the defendant-respondents to fill up the lacuna in their evidence. Resultantly, this appeal is allowed, the impugned judgment and decree passed by the learned lower Appellate Court are set aside and that of the trial Court are restored with no order as to costs. Appeal allowed.