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2023 DIGILAW 1589 (PNJ)

Harbhajan Singh v. Piara Singh

2023-05-03

ALOK JAIN

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JUDGMENT Alok Jain, J. The present appeal arises out of a suit filed by the appellants-plaintiffs for permanent injunction restraining the defendants from illegally and forcibly interfering in the peaceful possession of the premises. Another suit by the appellants-plaintiffs for possession by way of partition of 2/3rd share of the house was also consolidated and the defendant had also raised the counter claim. The learned trial Court vide its judgment and decree dated 15.04.2005 dismissed the suit of the appellants-plaintiffs and returned a finding that the appellants-plaintiffs is not entitled to permanent injunction as prayed for and the counter claim raised by the defendant was decreed and the defendant was held to be entitled to the possession of the site. 2. The appeal filed by the appellants-plaintiffs also came to be dismissed by ADJ, Hoshiarpur on 13.09.20211 and as the appellants-plaintiffs had failed to prove their case. 3. Aggrieved by the above, present second appeal came to be filed. 4. The brief facts of the case as narrated by the counsel for the appellants are that plaintiffs had filed a suit for possession by way of partition of 2/3rd share of the house in dispute, situated in village Khanoor Tehsil and Distt. Hoshiarpur. It was alleged that the plaintiffs and the defendant are real brothers. The plaintiffs had two other brothers namely Piara Singh and Kundan Singh. The father of the parties had divided his property in his life time. The house in dispute had fallen to the share of Kundan Singh and electric meter had been got installed by Kundan Singh in his own name and he had been making payment of the electricity charges during his life time. Kundan Singh was the exclusive owner of the house in question and he was in possession of the same. Kundan Singh, the real brother of the parties, had died on 20.08.2000, issueless and wifeless and as such it was alleged that the parties are entitled to succeed his property, in equal share. After the death of Kundan Singh, the defendant had entered into possession of house in dispute. The plaintiffs requested the defendant to give their share in the house, but he refused and hence the present suit. 5. After the death of Kundan Singh, the defendant had entered into possession of house in dispute. The plaintiffs requested the defendant to give their share in the house, but he refused and hence the present suit. 5. Notice of this suit was also given to defendant, who appeared through his counsel and filed written statement taking preliminary objections that the site plan filed with the plaint is incorrect, that the plaintiffs are not in possession over any part of suit property; that the suit is liable to be stayed under section 10 of CPC in view of pendency of another suit filed by Harbhajan Singh for permanent injunction and in view of counter claim filed by the answering defendant for possession, the present suit is not maintainable and the plaintiffs are estopped by their own act and conduct from filing the present suit. On merits, it was alleged that it is wrong that the father of the parties divided any property during his life time and that the property in dispute fell in the share of Kundan Singh. It was further alleged that Kundan Singh came to the village after retirement from service and at that time, father of the parties got an electric meter installed in the house. Since, Kundan Singh used to go out for getting everything done, so the connection was taken in his name merely as family head and not as a matter of any right in the property. The payment of bills and other dues were being made by the answering defendant even during the life time of Kundan Singh. The property was in the name of father of the parties and after his death, the said property was inherited by answering defendant by virtue of will dated 19.08.1977. It was denied that Kundan Singh was exclusive owner of any property or the house in dispute. Shri Rattan Singh acquired part of the entire property by way of exchange from one Mota Singh and remaining part of the property was ownership of Rattan Singh. The answering defendant purchased one property adjoining to property owned by Rattan Singh from Mehar Singh son of Ganesh, vide sale deed dated 10.08.1960. Kundan Singh was not owner of any property as alleged. Hence, defendant-respondent prayed for dismissal of the suit. 6. The answering defendant purchased one property adjoining to property owned by Rattan Singh from Mehar Singh son of Ganesh, vide sale deed dated 10.08.1960. Kundan Singh was not owner of any property as alleged. Hence, defendant-respondent prayed for dismissal of the suit. 6. Thereafter, plaintiffs filed replication to the written statement reiterating the averments as made in the plaint and denying that of written statement. From the pleadings of the parties, following issues were framed: 1. Whether the plaintiff is entitled to possession by way of partition of 2/3 share of the house?OPP 2. Whether the suit is liable to be stayed under section 10 CPC?OPP 3. Whether the suit is not maintainable? OPD 4. Relief 7. Learned counsel for the appellants has submitted that both the Courts below have erred in law and have failed in appreciation of the evidence in its correct perspective, inasmuch as the evidence of DW-4, Satnam Singh son of Chuhar Singh, who is the son of the attesting witness had categorically stated that Ex.Dl does not bear the signatures of his father namely Chuhar Singh. He also relies upon the said statement to submit that he had no personal knowledge regarding the Will. He further submits that the testimony of DW-7 Baqinder Mohan Singh Bedi, who is the son of Deed Writer has been wrongly interpreted, as in his entire testimony, he nowhere admits that the signatures on the Will Ex.D4 were of his father, and the said Will was registered in the Register at Sr. No.480 on 19.08.1977. He further contends that as per section 63 of Indian Succession Act, deals with the execution of the Wills, the same has to be attested and further in the facts of the present case, where both the attesting witnesses had expired, the provisions of section 69 of the Indian Evidence Act would come into play. It is submitted that the provisions of section 69 of the Indian Evidence Act have not been complied with and therefore, the Will is surrounded by suspicion. Counsel for the appellants has further argued that the story propounded by the respondent read with the testimony of DW-7 is contradictory, inasmuch as the fact that DW-7 stated that the entry in the Register records Will was executed in favour of Piara Singh, whereas a perusal of Ex.D4 (Page.75 of the LCR) in vernacular is not exclusively in favour of Piara Singh. Rather the said propounded Will records that apart from the said house, all other properties have to be bequeathed upon all the sons. Learned counsel for the appellants has also submitted that the cross-examination of the appellants in the previous suit has been wrongly interpreted to be an admission whereas, a perusal of the same Ex. DW-1 only states "it is correct that my father execute a Will dated 19.08.1977, volunteered the Will dated 19.08.1977 is with regard to the property which was the allotted property of Kundan Singh and the father had no right to execute the Will dated 19.08.1977." These lines from the testimony have been wrongly interpreted and taken as admission a part of the appellant". He has further relied upon the testimony of the respondent-Piara Singh DW-6, to submit that the respondent himself has admitted that the said Will had never seen the light of the day since 1977 and the respondent had categorically stated "Will had never been produced before any one prior to lodging the counter-claim in the present suit". 8. It is further contended that there is no evidence brought on record even from the testimony of the son of the scribe and the son of the attesting witness that the signatures of the attesting witness could be identified. 9. On the strength of the above, counsel for the appellants submits that both the Courts fell in error in dismissing the suit and further fell in error in allowing the counter-claim. 10. Learned counsel for the respondents has submitted that the testimony of DW-4 has to be read in toto. He refers to the examination in chief as DW-4, wherein, he has categorically stated that "I have seen the Original Will dated 19.08.1977. It bears the signatures of my father which I identified". Since the cross-examination is being misread by the appellant and as the Will Ex.D-4 was never put to the said witness, his statement that, it does not bear the signatures of the father namely Chuhar Singh relates to Ex.Dl which is the document in writing which was sale deed qua the said property. He further submits that the testimony of DW-7 i.e. Baijinder Mohan Singh Bedi Deed Writer clearly speaks that the entry with regard to the 'Will' is there in the Register and he has identified in writing of his father. He further submits that the testimony of DW-7 i.e. Baijinder Mohan Singh Bedi Deed Writer clearly speaks that the entry with regard to the 'Will' is there in the Register and he has identified in writing of his father. He has further stated that it was the Courts observation that Ex.D4 was written by his father with the same pen and with one ink and similarly the reply regarding the entry made by his father in the Registry, which the entry at Sr. No.480 dated 19.08.1977. Counsel for the respondent has further submitted that the testimony of the appellant in the previous suit does not dispute the Will and it only states that the father of the appellant had no right to execute the Will. 11. Learned counsel for the respondent has further submitted that the learned Courts below have discussed the entire issue and that section 69 of the Indian Succession Act, has been duly complied with inasmuch as one attesting witness is in his handwriting and that the signatures of the person executing the document is in the hand of that person . He submits that the person 'scribe' of the Will, his signatures had been duly identified and proved on record by the testimony of his son. He further submits that the appellant cannot be permitted to build a new case and refers to the pleadings whereby the appellants have never raised the issue of the Will being forged or fabricated and has vaguely denied the contents of para 2 of the written statement in his application whereas in para 2 of the written statement, the respondent had detailed out the presence of the Will. He further submits that the entire dispute arose only after the demise of their brother Kundan Singh, who was in fact taking care of the entire household and it was only thereafter that both the younger brothers Harbhajan Singh and Ajit Singh created the dispute in the said property. Since there was no dispute right uptill the demise of Kundan Singh, therefore, there was no occasion to test the veracity of the Will. 12. Learned counsel for the appellant has clarified that since they were given to understand that the property is owned by Kundan Singh, therefore, in that context, the said statement was made and not otherwise, the way it is being now projected. 13. 12. Learned counsel for the appellant has clarified that since they were given to understand that the property is owned by Kundan Singh, therefore, in that context, the said statement was made and not otherwise, the way it is being now projected. 13. Having heard the learned counsel for the parties and going through the lower Court record, it is clearly established that Will dated 19.08.1977 Ex.DW1 stands proved. It is imperative to submit that the execution of a Will is duly enshrined under section 63 of the Indian Succession Act, which reads as under: "63. Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has been the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. " 14. Although the provision of section 68 of the Indian Evidence Act deals with the proof of execution of a document required by law to be attested, which provides that it 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 a specifically denied. However, in the present case, since the attesting witness and the scribe of the Will have since expired, therefore the provisions of section 69 of the Indian Evidence Act are attracted as to how the document has to be proved where no attesting witness found. Section 69 of the Act reads as under: "Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. " 15. A perusal of the above provision clearly mandates that a Will must be proved to the extent that the attestation of one attesting witness, at least is in his handwriting and the signatures of that person executing the document is in the handwriting of that person. 16. In the present case, the testimony of DW-4 and DW-7 clearly proves that the Will was executed as it finds mention and recorded in the Register of the scribe for the year 1977. That another aspect on the matter which ways is with regard to the pleadings. Learned counsel for the respondent has demonstrated that there was no specific pleading qua the Will being forged and fabricated and the examination in Chief of DW-4 clearly records that the handwriting and signatures of the scribe were duly admitted by the said witness (DW4), however, the cross-examination with regard to the Will was not done and the testimony of the witness that it does not bear the signatures of the father of the witness relates to Ex.Dl, which is a document in Urdu and relates to the sale deed of 1960. The appellant has failed to demonstrate any suspicious circumstances to surround the Will or counter the testimony of DW-4 or DW-7 with regard to the signatures and thumb impressions on the said Will. DW-4/Satnam Singh has categorically stated that he had seen the original Will dated 19.08.1977, which bears the signatures of his father and he has further gone ahead to state that he had been seeing his father handwriting and signing and he identifies the signatures of his father on the file. DW-4/Satnam Singh has categorically stated that he had seen the original Will dated 19.08.1977, which bears the signatures of his father and he has further gone ahead to state that he had been seeing his father handwriting and signing and he identifies the signatures of his father on the file. The appellant could not shutter the credibility of the said witness that the Hon'ble Supreme Court in Civil Appeal No.9683 of 2019 titled as "Raj kumari and Ors. v. SurinderPal Sharma" has held as under: "12. We would first expound the law relating to the execution and proof of Wills under the Indian Succession Act and the Evidence Act. Clause (c) of section 63 of the Indian Succession Act reads as follows: "63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules- (a)-(b) * * * (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." As per the mandate of clause (c), a Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. The Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time. No particular form of attestation is necessary. Thus, there is no prescription in the statute that the testator must necessarily sign the Will in the presence of the attesting witnesses only or that the attesting witnesses must put their signatures on the Will simultaneously, that is, at the same time, in the presence of each other and the testator. 13. The need and necessity for stringent requirements of clause (c) to section 63 of the Indian Succession Act has been elucidated and explained in several decisions. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Others dilating on the statutory and mandatory requisites for validating the execution of the Will, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis-a-vis other documents of conveyancing, by emphasising that the Will is produced before the court after the testator who has departed from the world, cannot say that the Will is his own or it is not the same. This factum introduces an element of solemnity to the decision on the question where the Will propounded is proved as the last Will or testament of the departed testator. Therefore, the propounder to succeed and prove the Will is required to prove by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) that the testator had put his signature on the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of mind of the testator and his signature as required by law, courts would be justified in making a finding in favour of the propounder. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect. " 17. Such evidence would discharge the onus on the propounder to prove the essential facts. At the same time, this Court observed that it is necessary to remove suspicious circumstances surrounding the execution of the Will and therefore no hard and fast or inflexible rules can be laid down for the appreciation of the evidence to this effect. " 17. After considering the factual matrix and the established principles of law as discussed above, whereby the Will duly stands proved in terms of the provisions of section 69 of the Indian Evidence Act, and the well-versed findings of both the Courts below, the present appeal being devoid of any merit and without raising any substantial question of law deserves to be dismissed. 18. Ordered accordingly. 19. No order as to costs.