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NON –REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5050 OF 2009

JARNAIL SINGH & ANR. … Appellants

VERSUS

BHAGWANTI (D) THR. LRS. & ORS. … Respondents

J U D G M E N T

N.V. RAMANA, J.

1. The instant appeal is preferred by the unsuccessful

defendants having been aggrieved by the Judgment and

decree passed by the High Court of Punjab and Haryana at

Chandigarh in regular second appeal No.465/85 dated

12.03.2008 whereby the High Court reversed the Judgment

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and Decree passed by the first appellate Court and

consequently decreed the suit.

2. A few facts which are necessary to understand the

controversy involved in this appeal in a nutshell are that the

respondents in this appeal have filed suit for possession of

the suit scheduled properties.   To understand the claim of

the plaintiffs in respect  of the suit  schedule  property it is

necessary to have a look at the pedigree table as submitted

by the plaintiffs/respondents.

                                 Nainu Ram

Deva Ram   Mangal Ram Kirpo

Khushi Ram Jagan Nath Janti Ram (Died Issueless) (Died Issueless)

                              Chanan Devi Purni Devi     Bhagwanti        (Plaintiff­3)        (Plaintiff­2)    (Plaintiff­1)

3. Jagan Nath was the owner of  the suit  property measuring

approximately 12 acres of valuable agricultural land in

Ludhiana.   The wife of Jagan Nath predeceased him,

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thereafter he passed away issueless on  20.11.1977.   The

respondents­plaintiffs herein, are the grand­daughters of

Smt. Kirpo, who was the sister of father of Jagan Nath.  The

respondents­plaintiffs claim that by virtue of above relation

as depicted in the genealogy, they are entitled to inherit the

suit property belonging to Jagan Nath.   It is the case of the

respondents/plaintiffs that the cause of action for the suit

arose  when the appellants­defendants have forcibly taken

possession  over the said suit property, after the  death  of

Jagan Nath.  Therefore,  as  being the legal  heirs  of  Jagan

Nath respondents/plaintiffs are entitled for possession over

the suit property.  Hence they have come up with the present

suit for possession.

4. The appellants herein as defendants in the suit resisted the

suit on several grounds.   As per the written statement, the

suit is not properly valued for the purpose of the court fee

and jurisdiction. Defendants have denied the relationship of

the plaintiffs with late Jagan Nath, who is the owner of the

suit schedule property.   It was further averred that as late

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Jagan Nath was properly taken care of by the defendants, he

has executed a registered Will dated 17.09.1970 bequeathing

the properties in their favour;   the said Will was attested by

Sadhu Singh and Bachan Singh; but they have admitted the

factum of Jagan Nath dying issueless.   The relationship of

plaintiffs  with Kirpo  is  denied and stated that  they are  in

possession of the property from the last 15 to 16 years and

hence sought for the dismissal of the suit.

5. The Trial Court taking into consideration the dispute involved

in the case has framed four issues i.e.

1. Whether the plaintiffs are granddaughters of Kirpo and whether Kirpo was real sister of Mangal who was father of Jagan Nath.

2. Whether Jagan Nath executed a valid  Will in favour of defendants.

3. Whether the suit properly valued for the purpose of Court Fee and Jurisdiction.   What is the market value of the properties (c) to (f) mentioned in para 2 of the plaint.

4. Relief.

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6. The Trial Court after a full­fledged trial, taking into

consideration both oral and documentary evidence has

decreed the suit by holding that the plaintiffs are

granddaughters of Kirpo and Kirpo was real sister of Mangal

who was the father of Jagan Nath.   While coming to such

conclusion, the Court has also taken into consideration an

admission  made  by the  defendants in  a  suit for  damages

against Krishna Devi where Jarnail Singh gave a statement

with regard to relationship of Plaintiffs with Jagan Nath as

per the genealogy.   When the defendants failed to give any

satisfactory explanation for denying admission coupled with

the other evidence led by the plaintiffs, Court has come to the

conclusion that relationship has been proved.  With regard to

the second issue of execution of registered Will in favour of

the defendant, Court has disbelieved the evidence of

defendants and has held  the  issue against the defendants

holding that the genuineness of the Will was not proved.  The

3rd  issue of  Court  Fee  was held  against the  plaintiffs  and

directed them to pay the deficit Court Fee within one week

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from the date of order.  Ultimately the Court has decreed the

suit.

7. The unsatisfied defendants carried the matter in appeal

which is numbered as Civil Appeal No.617/163/1982.   The

lower  appellate  court  having  concurred with regard to the

findings on the Will has taken a different view on the

relationship of the plaintiffs with Jagan Nath and held that

“Exhibit PX” does not prove the relationship of the plaintiffs

and the Trial Court erred in relying on the admission of the

defendants  in the other suit  and accordingly set aside the

Judgement and Decree of the Trial Court and consequently

dismissed the suit.

8. Aggrieved thereby, the plaintiffs carried the matter in second

appeal to the High Court of Punjab and Haryana at

Chandigarh and the High Court has held all  the  issues in

favour of the plaintiffs and set aside the Judgment and

decree of the first appellate court and decreed the suit.  Thus

the Trial Court Judgment and Decree was restored.   Hence

the appellants are before us in this appeal.

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9. Heard Mr. Roshan Lal Batta, learned senior counsel

appearing on behalf of the appellants and Mr. T.S. Doabia,

learned senior counsel appearing on behalf of the

respondents.

10. Learned senior counsel for the appellants vehemently

contended that the Courts below as well as the High Court

have ignored the fact that there was a registered Will dated

17.09.1970, executed by Jagan Nath, which was witnessed

by Bachan Singh Numberdar and Sadhu Singh (DW­3), son

of  Chanan  Singh, resident  of village  Natt to  which  Jagan

Nath, executor of the Will, belonged.  Learned senior counsel

further submitted that the said Will was executed as per the

requirement of Section 63 of the Indian Succession Act,

1925.  It is submitted by the learned senior counsel that the

Courts below as well as the High Court have ignored material

evidence of  Mohinder  Singh (P.W.3),  who admitted in  his

statement that Jagan Nath had cancelled his first Will dated

24.09.1964, executed by him, through the present Will dated

17.09.1970, and his admission clearly proves that the Will

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dated 17.09.1970 was executed by Jagan Nath because he

had mentioned the same in this Will and there was no other

Will  and the present Will  had been made  in  favour of the

appellants.   It is further contended that the High Court has

ignored this material evidence and observed simply that this

admission of Mohinder Singh, a witness of plaintiffs, does not

in any manner prove the execution of Will in favour of the

appellants, which is in favour of only two brothers and not all

the five brothers in whose favour the Will was admitted by

Mohinder Singh to have been executed by Jagan Nath.  These

reasons of High Court  in not considering the admission of

Mohinder Singh (P.W.3) are wrong and untenable.

11. Learned senior counsel for the appellants further contended

that the lower Courts as well as the High Court have wrongly

and illegally, without appreciating the full statement of

Sadhu Singh (DW­3),  held that he is not the same person

who had attested the  Will.   It is submitted that in the

opening sentence of the cross­examination of Sadhu Singh

(DW­3), there was a typographical mistake which is clearly

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apparent after reading his whole statement.  Even otherwise

while giving his statement, he has mentioned himself on oath

as son of Chanan Singh but in cross­examination he stated

that, by mistake, this fact is wrongly so recorded.  From the

perusal of the Examination­in­Chief of Sadhu Singh (DW­3)

and whole of the cross­examination, the courts below as well

as the High Court had wrongly held that Sadhu Singh (DW­3)

is not the same person who witnessed the Will by putting his

thumb impression mark.

12. It is submitted by the learned senior counsel that at the time

of Examination­in­Chief, Sadhu Singh (DW­3) was 45 years

of age.   He had also executed two sale deeds dated

12.06.1981 and 17.06.1994,  which have  been attached as

Annexures  P­11 and P­12 with  the  SLP paperbook,  which

have been produced by the appellants by way of additional

evidence.   These documents clearly prove that Sadhu Singh

is the same person who witnessed the Will dated 17.09.1970.

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13. The Advocate for Respondents/Plaintiffs argued in support of

Judgment of High Court.

14. Having heard the learned senior counsel on either side and

perused the material available on record the following issues

fall for consideration before this Court:­

1.  Whether  Jagan Nath  executed  a  valid  Will in favour of the defendants.   Whether this Court can interfere with the concurrent findings of facts?

2.   Whether the plaintiffs were able to establish the relationship  with Jagan  Nath and discharged the burden of proof?

15. All the three courts below have given concurrent findings on

the issue of genuineness of alleged Will against the

defendants.   A thorough look at the  material on record

reveals that  DW­3 stated  that  he  had accompanied Jagan

Nath along with attesting witness Bachan Singh (deceased) to

the Scribe Bishan  Dass who first prepared a draft  Will,

thereafter prepared a pucca Will, which was attested by both

the witnesses and thumb­marked by the executor Jagan

Nath.   Further he stated that he is neither son of Chanan

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Singh  nor are the defendants  his cousins.  DW­3  Sadhu

Singh further stated that  he never interacted  with Jagan

Nath prior to the execution of the said Will nor was he on

visiting terms with him.   It was admitted that the only

relationship that existed between the parties was that of co­

villagers.  It was also admitted that Jagan Nath was illiterate.

DW­3 vaguely put forth the date of execution to be

somewhere 11 years ago.

16. The law regarding proof of valid Will is well settled by this

Court in catena of judgments.   Section 63 of the Indian

Succession Act 1925 mandates that the Will shall be attested

by two or more witnesses.  As per Section 68 of the Evidence

Act if only one attesting witness is alive the execution of the

Will can be proved by only one attesting witness subject to

the process of the Court and capable of giving evidence.   In

this case the only attesting  witness  DW­3  Sadhu  Singh’s

evidence does not inspire confidence in the mind of the Court

and more so it creates suspicion in the mind of the Court

with regard to execution and genuineness of the Will.

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Coupled with this  the evidence of  defendant Jarnail  Singh

created all the more cloud on the execution of Will.   Jarnail

Singh deposed that in lieu of services rendered by him Jagan

Nath executed the Will.  But the cross examination of Jarnail

Singh reveals that he was in Army from the year 1960­1979,

whereas the Will was executed in the year 1970.   In view of

the same it appears highly improbable that Jarnail Singh had

an opportunity to render any service to Jagan Nath.   Apart

from Jarnail Singh none of the other family members entered

into the witness box and gave statement in support of

services rendered by them.   Moreover evidence reveals that

Jagan Nath was  a  Sarpanch of the  village  and owned 12

Killas of land.   Hence, it is highly unbelievable that he

depended on defendants  who are  neither  related  to  Jagan

Nath nor even belongs to the same community.

17. This court  in the case of  Lalitaben Jayantilal Popat vs.

Pragnaben Jamnadas  Kataria and Ors.  (2008)  15  SCC

365, held that:­

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It is trite law that execution of a Will must be held to  have  been proved not  only  when  the  statutory requirements for proving the will  are satisfied  but the will is also found to be ordinarily free from suspicious circumstances.  When such evidences are brought on record, the Court may take aid of the presumptive evidences also.  (emphasis supplied)

18. The evidence of the defendants and their conduct create

number of suspicious circumstances around the Will which

are detailed in the Judgment of Trial Court & first appellate

court.  The defendants could not prove the due execution of

the Will either as mandated under the Indian Succession Act

or as per the provisions of Indian Evidence Act.

19. In  the  pending appeal  before  us the  appellants  wanted  to

mark certain additional documents in support of the

execution of the Will.  We are not inclined to look into those

documents as this Court generally will not interfere with the

concurrent findings of facts of three courtsunless there are

special circumstances warranting interference of this Court.

The appellantswere not able to convince this Court that the

findings of the Courts below are perverse, contrary to settled

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legal position or grave injustice has been done in view of non­

consideration of important piece of evidence.  We are in total

agreement with the Courts below that the defendants failed

to prove the execution and genuineness of the Will and such

a finding does not call for any interference from this Court.

This issue is answered against the appellants/defendants.   

20. In response to Issue No.2, on this aspect, the Trial Court has

held that the plaintiffs could prove the relationship  with

Jagan Nath and they are entitled for possession of the suit

schedule property.  But the 1st appellate Court has arrived at

a different finding that the plaintiffs were not able to prove

that they are granddaughters of Kirpo and whether Kirpo was

real sister of Mangal who was father of Jagan Nath.  On the

contrary, High Court has observed that Jagan  Nath  was

undisputedly owner of the suit property and when the Will in

favour of defendants is not proved, then plaintiffs as

cognates,  inherited the suit property from Jagan Nath and

became owner thereof and are therefore entitled to seek

possession of the suit property from the defendants.

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Whereas,  admittedly  defendants  have  no relationship  with

Jagan Nath.   It was contended on behalf of the appellants

that the High Court erred in reversing the finding of fact by

the  appellate  court  which the  High  Court  ought  not  have

interfered with.   We are unable to appreciate the argument

advanced on this aspect as the conclusion of the Trial Court

as  well  as the  Appellate  Court is  not  only  based  on  the

admission made by the defendants with regard to the

relationship  of  plaintiffs  with  Jagan Nath,  but  also taking

into consideration the independent  Will dated 17.04.1953

executed by Khusi Ram – cousin brother of Jagan Nath in

favour of plaintiff No.1 and 3, the relationship between the

plaintiffs and other family members was clearly mentioned

and the subsequent mutations   carried out pursuant to the

Will strengthen the  case  of the  defendants.  The  pedigree

table also reveals that Khusi Ram and Jagan Nath have died

issueless which is an admitted fact thereby leaving Kirpo as

the only existing branch of the family.   But since Kirpo and

her son Janti Ram have predeceased Jagan Nath, the

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respondents/plaintiffs are the nearest cognates of Jagan

Nath  who had  no  surviving  agnate.  The  High Court  was

perfectly right in interfering with this question of fact more so

when the opinion of the 1st appellate court was perverse and

contrary to material available on record.  Issue is accordingly

answered against appellants/defendants.

21. In the light of the above findings on issues 1 and 2 we are of

the considered opinion that the judgment and decree of the

High Court requires no interference from this court. In the

aforesaid circumstances the appeal of the defendants has to

fail  and accordingly appeal  is  dismissed by confirming the

judgment  and decree  of the  Trial  Court,  however,  without

costs.

……………………………………..J. (N.V. Ramana)

………………………………………J. (Mohan M. Shantanagoudar)

NEW DELHI, NOVEMBER  29, 2018.