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2013 DIGILAW 1311 (PNJ)

Bhajan Kaur v. Hazara Singh

2013-09-26

K.KANNAN

body2013
JUDGMENT Mr. K. Kannan, J. (Oral):- The following substantial questions of law arise for consideration in the second appeal. 1. Whether the appraisal of evidence relating to the Will was perverse to hold that the Will had been established when there were inherent contradictions and unnatural disposition that ought to have excited the suspicion regarding the validity of the Will ? 2. Whether the appeal had abated by the death of the appellants by the failure of the legal representatives to be brought on record within the time prescribed by the law ? 3. Whether the amended provisions of Order 22 Rule 3 are inapplicable to an event of death which had taken place prior to the date when the amendment was brought to the Civil Procedure Code by the High Court Rules dated 21.02.1992 ? 2. The second appeal is against the judgment of the Courts below decreeing the suit filed by the plaintiff. The suit related to the estate of one Narain Singh and the property comprised was immoveable properties in village Khatrai Kalan. The suit was at the instance of brother of Narain Singh and the defendants were the daughters of Narain Singh. The suit had been filed by the plaintiff contending that Narain Singh had executed a Will bequeathing his properties in his favour on 19.12.1972. The plaintiff would aver that the defendants had earlier filed the suit for declaration with reference to the property but later on obtaining mutation in their names and after having filed a petition for partition, they had withdrawn the suit. The plaintiff would contend that the Will had been executed by Narain Singh in a sound disposing state of mind and subsequent to his death, the Will was given publicity and registered posthumously and the defendants/daughters had no right to the properties since they were disinherited. The contention in defence was that the Will was not true and that it was a fabrication. It was the further contention that their own mother Basant Kaur died only four or five years prior to the death of Narain Singh and the Will was most artificial that it made no reference even to the existence of his wife and it had disinherited her wholly. It was the further contention that their own mother Basant Kaur died only four or five years prior to the death of Narain Singh and the Will was most artificial that it made no reference even to the existence of his wife and it had disinherited her wholly. Evidently, the burden of proof was heavily on the plaintiff to establish the genuineness of the Will and stave clearly of any suspicion from the mind of the Court regarding the manner of disposition. At the trial, the plaintiff examined himself and the scribe and one of the witnesses. The defendants examined themselves, their husband and some villagers in support of the filialty between father and daughters and how he could never have disinherited the daughters. The trial Court upheld the Will and the Appellate Court confirmed the same. It is against the concurrent findings of the two Courts regarding the genuineness of the Will that the second appeal has been filed. 3. After the filing of the appeal, appellants No.1 and 2 died one after another. Bhajan Kaur died on 25.10.1991 and the second appellant died on 20.11.1998. The applications for impleadment had been brought beyond a period of 90 days and even after 60 days when the appeal must have been taken as abated. The applications were, however, filed for condoning the delay in filing the applications for impleadment and to set aside the abatement. There had been also contest on whether the person, who was trying to implead herself as a legal representative was really the daughter or of Mango and the reference in the death certificate referring to Mango as having an alias Manjit Kaur was taken as a point of dispute by the respondent and this Court had, therefore, called for a report from the trial Court to elicit whether Mango had an alias Manjit Kaur and whether Gurmit Kaur, who claimed herself to be the daughter of Mango was indeed her daughter and the legal representative of Mango. The Court has returned the finding that Mango had alias by name Manjit Kaur and Gurmit Kuar was daughter and a legal representative. I have gone through the report given and I will find that it is well reasoned one, having allowed parties to enter a very serious contest in applications for impleadment as though they were dealing literally with right to property itself. 4. I have gone through the report given and I will find that it is well reasoned one, having allowed parties to enter a very serious contest in applications for impleadment as though they were dealing literally with right to property itself. 4. At the forefront of the arguments of respondent, it was contended that the applications for impleadment after death of Bhajan Kaur were filed only on 10.12.1997 while the death of Bhajan Kaur had taken place even on 25.10.1991. The contention was that the amendment to Order 22 Rule 3 brought by the Punjab and Haryana High Court on 22.02.1992 was not applicable to a case of death that had taken place prior to the amendment. Consequently, the applications which were barred by Article 120, not having been filed within 90 days to implead the legal representatives, resulted in abatement of the appeals. The applications had been supported by a statement that the legal representatives were illiterate and they did not know the provision of law that they had to implead themselves within time. They also contended that they were under the impression that no steps need be taken to implead the legal representatives. This the learned Senior Counsel appearing for the respondent would point out was unacceptable and no appropriate reasons have been given to set aside the abatement and to condone the delay in filing the appeal. I am setting this out because it would become essential to stave off any technical objection from coming in the way from consideration of a core issue of validity of the Will. 5. I would find that even an application regarding setting aside the abatement and an application of condonation of delay were unnecessary. I am setting this out because it would become essential to stave off any technical objection from coming in the way from consideration of a core issue of validity of the Will. 5. I would find that even an application regarding setting aside the abatement and an application of condonation of delay were unnecessary. The amended provisions of Order 22 Rule 3(4) CPC reads thus:- “If a decree has been passed against a deceased defendant, a person claiming to be his legal representative may apply for setting aside of the decree qua him and if it is found that he was not aware of the decree or that he had not intentionally failed to make an application to bring himself on the record, the Court shall set aside the decree upon such terms as to costs or otherwise as it thinks fit but with the stipulation that before setting aside the decree, the Court must be satisfied prima facie that had legal representatives been on the record, a different result might have been reached in the suit.” It will be wrong to assume that an amendment which was made by the High Court was only prospective in nature. Any amendment in procedural law is bound to be applied retrospectively unless amended provisions themselves restricted its application only to future actions. In Shyam Sunder Vs. Ram Kumar 2001(8) SCC 24 , the Supreme Court was marking out a distinction between substantive laws where vested rights are created so that any amendment could operate only prospectively, while procedural laws that allow for manner of enforcement of right or a law prescribing limitation, if amended, would be retrospective in its operation. This judgment was rendered in the context of the Punjab Pre-emption Act as substituted by the Haryana Amendment which was a substantive law creating a vested right of pre-emption and therefore, held to be prospective. In Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 , the Court was setting out several examples when the Amendment Act could be retrospective and followed it up with a caution that they were merely explanatory and not exhaustive. In Hitendra Vishnu Thakur Vs. State of Maharashtra (1994) 4 SCC 602 , the Court was setting out several examples when the Amendment Act could be retrospective and followed it up with a caution that they were merely explanatory and not exhaustive. In particular, Clause II of the illustration given in the judgment relating to procedural law explains that “law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature.” In Thirumalai Chemicals Limited Vs. Union of India and others (2011) 6 SCC 739 , the distinction of procedural and substantive law was again explained and raising a question of whether a provision relating to the period of limitation for preferring an appeal and the circumstances when the delay could be condoned could be procedural, it answered to the query and said that law of limitation is prima facie procedural and will have retrospective applicability. The Court again administered a caution that has to depend on each case. In Rajendra Kumar Vs. Kalyan (dead) by LRs 2000(8) SCC 99 , the Supreme Court explained that a procedural law would be retrospective. In my view, Order 22 Rule 3 CPC provided for a manner of impleadment of legal representative and the Limitation Act that prescribes the period when a failure to take action would result in abatement was procedural in character and therefore, the amendment must be deemed to be available for all situations where suits or appeals were pending on the date when the Amendment Act came into force. The retrospectivity ought not to be understood as reopening issues which were concluded but at least, it should be available for a person to apply to the Court and seek for continuation of proceedings without being fettered by the law of limitation. 6. I have seen a judgment of this Court in Bija Vs. Raja Ram and others 1998(1)PLR 493 that observed that Order 22 Rule 3(2) must be taken as prospective. The Court was saying so by observing that the Amendment Act does not expressly suggest that it would revive the appeals, which have already abated. 6. I have seen a judgment of this Court in Bija Vs. Raja Ram and others 1998(1)PLR 493 that observed that Order 22 Rule 3(2) must be taken as prospective. The Court was saying so by observing that the Amendment Act does not expressly suggest that it would revive the appeals, which have already abated. Several decisions which I have referred to of the Supreme Court making a distinction between substantive law and procedural law have not been considered in the said judgment for obvious reason that the said judgments were subsequent to this Court’s earlier view. The very same judgment referred to a Division Bench ruling of this Court in Banta Singh vs. Santi 1977 PLJ 452 that also referred to the law as it stood with reference to Order 22 Rule 3(4). There again the Division Bench was not considering the difference in approach that would have to be made while considering substantive law and procedural law. I will not, therefore, take these two decisions as governing the law on the subject and I will hold that the provision amending Order 22 Rule 3(4) removing the prospect of abatement and deeming provision that the suit or appeal must be prosecuted as if the deceased plaintiff or appellant did not die, must be applied in all situations where suit or appeal was pending before Court. I would, therefore, find that there was simply no need at all to file any application for condoning delay in filing legal representative application or for setting aside abatement. The appeal could have been prosecuted even in the absence of the legal representatives from being brought on record as per the amended provisions of Order 22 Rule 3 CPC. The deceased appellants will be deemed to be alive for the purpose of disposal of the appeal. In this case, even if the application was necessary this amendment of this Court was surely a trend setter for many States, for probably it is the first Court which removed the bar of limitation for impleadment of legal representatives. The suits and appeals remain pending in Courts for decades and more and if an application is not filed within 90 days, it should not restrict the rights of parties on the issue of limitation. The suits and appeals remain pending in Courts for decades and more and if an application is not filed within 90 days, it should not restrict the rights of parties on the issue of limitation. If Courts are not devising methods of disposal of appeals within 90 days, retaining for limitation within 90 days and to abate proceedings could be anachronistic. This Court’s amendment, therefore, brings in a new realism of what several Courts may follow in future. 7. Even if the bar were to be taken as merely prospective, it was not as if applications had not been filed by the appellants to implead the legal representatives or not filed an application to condone the delay and to set aside the abatement. If those applications have been filed, the Court ought to take note of the fact that parties were villagers and if they were contending for a position that they did not know the niceties of law to implead themselves as representatives within a particular period of time, I would accede to the plea as made by them and find that to be sufficient justification to condone delay and set aside the abatement. The properties are valuable immovable properties and rights of the parties cannot be snatched away merely by the fact that the action was not taken for impleadment within the period of 90 days or to set aside the abatement within a period of 60 days. When one of the daughters Baljit Kaur died, the other daughter Mango was stated alive till after the amendment of the High Court rules. There was sufficient representation of the estate and the appeal, therefore, did not abate. Assuming such abatement took place, I will not fetter the rights to be decided only on the issue of limitation in filing the application. Interest of justice would require that the delay in setting aside abatement and for impleadment to be considered favourably and accordingly considered. I allow applications for impleadment. 8. The issue is whether the Courts below were justified in holding that the Will was genuine. Interest of justice would require that the delay in setting aside abatement and for impleadment to be considered favourably and accordingly considered. I allow applications for impleadment. 8. The issue is whether the Courts below were justified in holding that the Will was genuine. In this case, the most important feature about Will will have to be seen from the fact that how it sets out the recitals which are in one page and it will be appropriate to reproduce the entire terms of the Will:- “I, Narain Singh son of Budha Singh age 77 years, am resident of village Khatrai Kalan, Tehsil Ajnala. As I have grown old, I feel proper to execute a Will regarding my property/land. I do not have any male child. I have two daughters, Mango and Bhajjo. They were residing well at their own houses. I have spent a lot on their marriages. My real brother Hazara Singh son of Budha Singh is serving me well. I am very much pleased with his service. Now, I in my full senses do hereby execute my Will that so long I am alive, I shall remain owner of my all movable and immovable properties and after my death, my real brother Hazara Singh son of Budha Singh of village Khatrai Kalan, Tehsil Ajnala shall be owner and heir of my entire movable and immovable property, cattle, cash, ornaments, land and house wherever it may be situated. No other person except him shall be my heir. My daughters also shall not be my heirs regarding my property. This is my first and last Will. I have written this Will so that it may remain evidence.” It can be noticed that he makes no reference about his wife Basant Kaur. The plaintiff, therefore, wanted to contend that Basant Kaur had expired even before the execution of the Will and therefore, there had been no mention. The plaintiff, therefore, knew that he had to explain as a person, who was propounding it that it was free from any suspicion. The Court of conscience is not necessary a Court of suspicion. I will not go as far as to state that a Court will start looking at any instrument as though its genuineness will always be suspected. The plaintiff, therefore, knew that he had to explain as a person, who was propounding it that it was free from any suspicion. The Court of conscience is not necessary a Court of suspicion. I will not go as far as to state that a Court will start looking at any instrument as though its genuineness will always be suspected. But rule of evidence mark such exception to general understanding of how an instrument has to be proved even if there was no denial. Section 68 of the Indian Evidence Act, which sets out the manner of proof of a document, states that any document which is not denied need not be proved by calling attestor but if it was a Will whether it is denied or not a proof is always necessary by calling at least one attestor. Section 68 of the Indian Evidence Act is reproduced as under:- “68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that if shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.” (emphasis supplied). 9. Reference to an exception of the Will is only by the fact that the Will speaks from the grave, as it were and it could never be, in the very nature of things, that a person who executed a document could be available to vouch for its genuineness. It is, therefore, essential that the Will is proved in strict conformity with law. In this case, if the plaintiff was to spell out the instrument as the most natural disposition and would also require to explain any suspicion that may exist, most notably as to why the deceased was making a disposition in the manner that he did. It is, therefore, essential that the Will is proved in strict conformity with law. In this case, if the plaintiff was to spell out the instrument as the most natural disposition and would also require to explain any suspicion that may exist, most notably as to why the deceased was making a disposition in the manner that he did. A Will is necessary only to take a devolution outside the normal line of succession and therefore, only fact that a Will disinherits a daughter or wife may not be suspicious but even if they are disinherited, there ought to be some person speaking about it to make it seem natural. If the recital in the Will itself does not spell out elaborate reasons for disinheriting wife and daughters, it would require at least a modicum of evidence from the witnesses who were present there and would have known why the preference of bequest was made wholly to a bachelor brother and excluded the widow and daughters. 10. In this case, the facts that have been brought about the relationship between the parties also would be necessary to be turned in at the background. One of the daughters Mango was said to have been married to one Nirmal Singh and the evidence was that Nirmal Singh married another woman Kulwant Kaur during the life time of his first wife Mango and therefore, Mango came back to her father’s house. Bhajan Kaur, the other daughter had also a reason to be with her parent that her husband was in the Armed Forces and her husband Dalbir Singh deposed as AW4 about how his wife was residing for most part of the time with his children in his father-in-law’s house. That two children of Narain Singh were as two apples of his eyes and still opting to make a bequest in favour of brother is a tall story. Learned Senior Counsel appearing for the respondent points out to me that there is evidence that Narain Singh and Hazara Singh had joint mess. Hazara Singh was a bachelor and if Narain Singh was making a bequest in favour of his brother, it would have been natural if his brother himself was a man with huge obligations with lot of persons to support. Hazara Singh was a bachelor and if Narain Singh was making a bequest in favour of his brother, it would have been natural if his brother himself was a man with huge obligations with lot of persons to support. He had yet another brother by name Surain Singh and he had several children, one of whom was said to have been taken on adoption by Hazara Singh. Narain Singh was making bequest to a brother to the exclusion of his other brother’s children was also unusual for an old person could not have made the bounty of bequest to a brother who had not even a family of his own. Narain Singh, who had his own daughters in his house could never have decided to completely disinherit them and the fact that the Will makes a reference that his daughter had been married and therefore, he was not making a bequest cannot be real or true, since the father was stating nothing about the stand-off between one of his daughters and her husband. Mango herself had given evidence about how her husband had married yet another woman that caused her immense hardship. A father, who ought to have been in an unenviable position of having to see her own daughter in travails, with another woman coming in her way to cause a wedge in the relationship with her husband could never have thought of disinheriting such a daughter. The disinheritance of the daughter in this case to me assumes enormous importance and none of the witnesses, including the scribe and the witness speak about why he was disinheriting his daughters. If he was stating that he had substantially benefitted them at the marriage, it should have been elicited through either through the scribe or the witness as to how he still thought of disinheriting a daughter who had been betrayed by her husband. 11. Learned Senior Counsel appearing for the appellant points out to me yet another fact which literally betrays the falsity of the contention on the plaintiff by a complete non reference to his wife in the Will. The defence is that the document itself is a fabrication made after the life time of Narain Singh. The wife was alive till 1975. Learned Senior Counsel appearing for the appellant points out to me yet another fact which literally betrays the falsity of the contention on the plaintiff by a complete non reference to his wife in the Will. The defence is that the document itself is a fabrication made after the life time of Narain Singh. The wife was alive till 1975. The contention is that since the Will was prepared after Narain Singh’s death, they had only remembered that the wife was not alive at the time when Narain Singh died and therefore, did not make reference about her in the Will. If the Will had been really executed in the year 1972, there could be no way by which he could have forgotten to make a reference to his wife, who was alive at that time. Every one of the defendant’s witnesses have spoken about the fact that the wife had died about 4 to 5 years before the death of Narain Singh. PW-3 Sarpanch of the village was examined to elicit from him that Narain Singh and his brother were having common mess. In the cross-examination, it was elicited through him that his wife had died about four years prior to the death of Narain Singh. He added also that she died 10 to 12 years ago and that her ashes were immersed in the Ganges at Haridwar. This is typically the defence which was taken by the defendant that she died around the year 1975 and that her ashes were immersed at Haridwar. The defendant was trying to give evidence that they made attempt to track the particular purohit, who had performed the obsequies but they could not find the details. The Senior Counsel for the appellant would point out that PW4’s evidence literally vouched for the defendant’s own contention about the year of death and the place of ashes immersion ceremony. 12. The suspicion about the Will also come through the fact that the scribe admits that the entry regarding the execution of the Will has been made at Sr. No.1372 on 19.12.1972 which was the last page in the register. If the Will had been entered in any other page, there ought to have been entries on both sides and the date would have been fixed. No.1372 on 19.12.1972 which was the last page in the register. If the Will had been entered in any other page, there ought to have been entries on both sides and the date would have been fixed. The entry in the last page is a manner of explaining that there were no other documents subsequently scribed by him. I will not go as far as to state that an entry in the last page cannot be true at all times but taken together all other circumstances attendant on the fabricated nature of the document, it also explains the ease with which such entry could have been made. 13. I am aware that at the second appeal, the Court does not normally upset question of fact and if the two courts have upheld the validity of the Will, there ought not to be a ground for setting aside the findings unless there was grave error. I find such grave error in this case, for both the Courts have completely omitted to take note of an important fact that at the time of the Will, he had a wife and that there is not even a reference about her in the Will. It was most artificial and unnatural for a man to disinherit her wife completely and made no provision for her maintenance. Even as regards a disinheritance to the daughters, one of the daughters was actually a grass-widow as it were, who could not have lived with her husband during her life time, he having taken another woman. The father could never have thought of not making any provision for such a daughter. The Will was admitted to be registered only subsequent to his life time only to bring a colour of plausibility and not for any justifiable reasons. 14. When both the daughters died one after another and the legal representatives are brought on record, the plaintiff went as far as to deny even the daughter of the defendant to be brought on record as a legal representative by a false contest that Mango did not have alias Manjit Kaur and that her daughter Gurmit Kaur was not really Mango’s daughter. This Court had to do an extraordinary job of calling for evidence from the lower Court and the Court has given a report that vouched for the correctness of the contentions of the defendant regarding the age, death and heirship as contended by the legal representative Gurmit Kaur. The plaintiff was such a close relative and he ought to have known that he was contending for a false case denying the status of Gurmit Kaur to prosecute the appeal as a legal representative. This does not really have a bearing to the genuineness of the Will but I will point this out to show the diabolical conduct and the lengths to which the plaintiff would go to deny the lawful heirs of all the rights in the property. 15. The substantial questions of law that I have raised would, therefore, be required to be answered in favour of the appellant to the effect that findings of both the Courts regarding the genuineness of the Will were perverse and they are bound to be set aside. The death of the defendants and impleadment of the legal representatives had not abated the rights since there is no law of limitation for impleading legal representatives under Order 22 Rule 3 by virtue of the Punjab and Haryana High Court Amendment. This amendment was retrospective in nature being a procedural law and it was immaterial that the death of one of the appellants had taken place prior to the Amendment Act introduced on 22.01.1992. 16. The judgments of the Courts below are set aside and the second appeal is allowed with costs throughout. The counsel’s fee in appeal to this Court is Rs. 25,000/-. ------------------