Dhan Kaur @ Dano and Others vs Major Singh and Another

S.K. Jain, J.—Smt. Dhan Kaur, Smt. Gurdial Kaur and Smt. Surjit Kaur alias Sito filed Civil Suit No. 313 of 26.9.1978 against Major Singh and Bhagwan Kaur for a decree of possession of 3/4 share of the land, fully described in the plaint, situated in village Ramuwala Karchoka, Tehsil Moga. It was pleaded that Hazara Singh son of Shri. Fateh Singh was owner of the suit land. Plaintiffs and defendant No 2 are his daughters whereas defendant No. 1 is the son of the defendant No. 2. Hazara Singh died in the year 1976. He had no son and his wife had pre-deceased him. Defen dant No. 1 was in possession of the suit land. He filed a suit against the plaintiffs on 5.11.1976 for permanent injunction restraining them from forcibly dispossessing him. That suit was dismissed in 1977. In the same year, he again filed a suit for declaration that he was owner of the suit land. That suit was dismissed as withdrawn. The plaintiffs have also put forth a will allegedly executed by Hazara Singh in their favour and that of defendant No. 2 according to which also they were entitled to 3/4th share in the land.

The defendants contested the suit and denied everything under the sun. Their case is that Hazara Singh executed a registered will on 26.9.1974 in favour of defendant No. 1 thereby bequeathing his entire property in his favour. It was contended on their behalf that the suit for declaration had been withdrawn because the inheritance of Hazara Singh had been sanctioned in favour of defendant No. 1 Major Singh.

The parties fought the litigation on the following issues :-

Whether Hazara Singh executed a valid will dated 16.3.1976 in favour of the plaintiffs and defendant No. 2? OPP

Whether Hazara Singh executed a valid will in favour of defendant No. 1 on 26.9.1974? OPD

Whether defendant No. 1 is estopped by his acts and conduct to rely upon the will dated 26.9.1974? PP

The learned trial Court decreed the suit of the plaintiffs vide his judgment and decree dated 19.12.1981. Major Singh defendant challenged the said judgment and decree in civil Appeal No. 31 of 1982. He arrayed his mother Smt. Bhagwant Kaur as proforma respondent No. 4 in the appeal. Learned District Judge, Faridkot accepted the appeal and dismissed the suit of the plaintiffs by setting aside the judgment and decree impugned before her.

It is that judgment and decree dated 12.1.1984 of the first appellate Court which has been appealed against by the plaintiffs and which requires my examination of its sustainabtlity.

In this case the lower Court record was stated to have been burnt and on 15.7.1987, the following order was passed by this Court:

" The case be completed without record subject to the learned counsel for the parties'' agreeing to make to use of such record as they make available at the time of hearing."

As is evident from order dated 9.9.1993 of this Court, learned counsel for the appellants submitted that be had complete records and that he will make two sets thereof available, one to the learned counsel for the respondents and another to be placed on the record of this case.

Shri K.S. Doad, learned counsel for the respondents on 10.9.1993 submitted that he wants to go through the copies supplied to him by the learned counsel for the appellants and, therefore, on his request, the case was adjourned to 27.9.1993. He has also placed on record the copies of following documents:-

i) Application under Order 41 Rule 27 C.P.C.

ii) Reply to the above application.

iii). Application for permission to take photographs of, the thumb impressions of Hazara Singh for comparison.

iv) Report of Mr. K.S. Puri, Finger Print Expert.

v) Brief notes of arguments on behalf of defendant-appellants.

vi) Voters'' List.

vii) Order dated 13.1.1978 passed by Sub Judge 1st Class, Moga.

viii)Copy of plaint in Civil Suit No. 52 of 1.3.1977, and

ix) Statement of Major Singh withdrawing the above suit.

I have heard the learned counsel for the parties.

The trial court in its judgment has stated :-

i) that Hazara Singh had executed a valid will in favour of the plaintiffs and defendant No. 2 and the said will was his last will.

ii) that Hazara Singh had also executed a will in favour of Major Singh but it stood cancelled when the latter will was executed in favour of the plaintiffs; and

iii) that earlier suit for declaration having been withdrawn by him, Major Singh could not claim the land in suit on the basis of the will.

The learned first appellate Court found :-

i) that will Ex. P1 does not appear to have been executed by Hazara Singh, it was fabricated after his death in order to claim his property.

ii) that the registered will Ex D-l had been duly executed by Hazara Singh in favour of defendant No. 1 Major Singh; and

iii) that Major Singh was not estopped from claiming ownership of the property in view of the finding that the will Ex. P-l was not a genuine document.

The sole question on the decision whereof the fate of this regular second appeal rests is as to whether will Ex.P1 had been validly executed by Hazara Singh in favour of the plaintiffs and defendant No. 2, thereby revoking his previous will in favour of defendant No. 1 Major Singh.

Will Ex.P1 has been proved on record in the testimony of PW 2 Kartar Singh PW 3 Gurcharan Singh, its attesting witnesses. Niranjan Singh, son-in-law of Hazara Singh testator, has stepped into the witnesses box as PW1 and has testified that Hazara Singh had executed a will in favour of his daughters. This witness is a power of attorney holder of the plaintiffs. Perusal of copy of the will Ex.P1 shows that it is mentioned therein that Dhan Kaur, Gurdial Kaur and Surjit Kaur plaintiffs and Bhagwan Kaur defendant No. 2 had served the testator. Previously, he had executed a will in favour of Major Singh defendant No. 1 who served him no more and that presently when he had suffered an injury, he had gone to village Singhwala. This conduct of Major Singh had made him unhappy. He had summoned Lamberdar Kartar Singh and the Sarpanch but the Sarpanch had gone to Chandigarh and, there fore, he was executing the will in favour of his daughters in the presence of the Lamberdar. The previous will be considered to have been revoked and the present will was his last testament. Gurcharan Singh PW3 is none else but the son of the brother of deceased Hazara Singh. He is thus a close relative of the parties. He is another attesting witness of the will besides Kartar Singh PW 2. He has stated in unambiguous terms that Hazara Singh had executed the will in question out of his free will and sound disposing mind. He has given a convincing and believable explanation for the non- registration of the will Ex P1 to the effect that Hazara Singh had suffered fracture of his thigh and therefore, he was unable to go to Moga in order to get the will registered. The factum of the testator having suffered the said injury finds mention in the will Ex.P1 itself. These witnesses have been rightly believed by the learned trial Court. As far as the non-registration of the will is concerned, there is no requirement of law that a will should be compulsorily registered. Kartar Singh had also attested the will Ex.D-1 executed by Hazara Singh previously in favour of Major Singh. When cross-examined, he stated that at the time of the execution of the will Ex P-1, Hazara Singh had told them that Major Singh was not serving him and, therefore, he wanted to execute the will Ex.P-1 in favour of his daughters. This witness had asked Hazara Singh to get the will Ex P-1 registered but the testator had regretted his inability to go to Moga on account of the fracture of his thigh. He has further supported the plaintiffs on the point that Sarpanch was called but since he had gone to Chandigarh he was not available in the village. I do not agree with the reasoning of the learned first appellate Court that if the testator wanted to get the previous registered will Ex.D-1 revoked, he would have done so by getting the subsequent will Ex.P1 registered in order to avoid any controversy. There is no such legal requirement. A will is not a compulsorily registerable document. Moreover, as mentioned in the earlier part of this judgment, PW-3 Gurcharan Singh has given a convincing and believable explanation for non-registration of the will Ex P-1 by saying that the testator had regretted his inability to get the will registered by going to the office of the Sub-Registrar at Moga because he had suffered a fracture of his thigh.

Relying on the copy of Jamabandi Ex.P3, Khasra Girdwari Ex P-4, Voters'' List Ex. P2 and the statement of Gurnam Singh Sarpanch Ex.D -2, the learned first appellate Court had come to the conclusion that it is not proved that Major Singh had left the village and had ceased to serve Hazara Singh. But a recital in the will to the effect that Major Singh was not serving the testator any more and had been away while he had suffered a fracture injury, cannot be taken to be a suspicious circumstance because in spite of the fact that Major Singh was recorded to be in possession of the suit land in the above said Jamabandi and Khasra Girdawari and being living in the house of Hazara Singh as per the voters'' List it cannot be said that Major Singh had not left Hazara Singh alone at the relevant time and had ceased to serve him. It is a matter of common knowledge that entries in these documents are made in routine. It has come in evidence that Major Singh had filed a suit for permanent injunction against the plaintiffs restraining them from forcibly dispossessing him from the suit land but that suit was dismissed as withdrawn on 27.12.1977. He had also brought another suit for declaration against the plaintiffs in the same year in order to get him declared owner in possession of the land. He had also sought a consequential relief of a decree of permanent injunction restraining the plaintiffs from interfering in his possession over the suit land. The said suit was also dismissed as withdrawn on 13.1.1978. In the plaint of that suit it is mentioned that the inheritance of Hazara Singh had been mutated in favour of the defendants. It is worth mentioning here that Smt. Bhagwan Kaur, mother of Major Singh was also defendant in that suit. All the above evidence goes to show that after the death of Hazara Singh his estate was mutated in the name of his daughters, i.e., the plaintiffs and Smt. Bhagwan Kaur. Major Singh in his cross-examination has admitted that bis mother Smt. Bhagwan Kaur was alive and that she had the knowledge of the litigation. But, strangely enough she had not been examined. She was the best person to depose with regard to the circumstances under which the mutation of inheritance of Hazara Singh was sanctioned in her name and those of her sisters. Moreover, there is no reason to disbelieve the statement of Kartar Singh Lamberdar PW 2. In his cross-examination he has stated that at the time of the execution of the will Ex.P1 Hazara Singh had told them that since Major Singh no more served him, he wanted to execute a will in favour of his daughters.

The matter can be examined from another angle. Para No. 4 of the plaint reads as under :-

"That on 5.11.1976 defendant No. 1 filed a suit against the plaintiffs regarding the land in suit for issuance of permanent injunction retraining the present plaintiffs from forcibly dispossessing him. In the "said suit defendant No. 1 based his claim, that he is a tenant and never asserted his rights on the basis of the alleged will, alleged to have been executed by Hazara Singh in his favour. Thus, defendant No. 1 is estopped by his act and conduct to claim the land in dispute on the basis of the alleged will".

Corresponding para of the written statement is in the following terms :-

"The facts mentioned in para No. 4 are mis-stated and are wrong. However, the defendant No. 1 had filed a suit for injunction against the plaintiffs."

Perusal of the above pleadings of the parties go a long way to show that in a way Major Singh had admitted that he had taken a stand that he was in possession of the suit land as a tenant.

Copy of the plaint of the above referred suit for permanent injunction filed by Major Singh is Ex. Para No. 2 thereof is reproduced below for ready reference :-

"That the plaintiff is cultivating the land in suit as a tenant for the last many years and he is in peaceful possession of the same. A copy of the same is attached herewith."

Further perusal of the copy of the plaint Ex. PX shows that therein he did not at all mention that Hazara Singh had executed will Ex.D-1 in his favour. It means that he had accepted the revocation of the will by the testator vide will Ex.P-1 in favour of the plaintiffs.

It is thus evident that the learned first appellate Court did not refer to the above mentioned very important pieces of evidence and had overlooked the material evidence. Her conclusion, therefore, cannot be regarded as binding upon this Court in this second appeal. In holding the above view, I am fortified by the ratio laid down in para No. 5 of the judgment of the Supreme Court rendered in Sonawati and Others Vs. Sri Ram and Another, .

Learned counsel for the respondents has submitted that an admission in a pleading could be used only for the purpose of the suit in which the pleading was filed and, therefore, if the above pleading in para No. 2 of the above suit is considered to be as admission on the part of Major Singh, it can be used only for the purpose of that suit in which the pleading was filed. I do not find myself in agreement with the said argument because Section 17 of the Indian Evidence Act makes no difference between the admission made by a party in a pleading and other admissions. Under the Indian Law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In holding the above view, I am fortified by the ratio laid down in Basant Singh Vs. Janki Singh and Others, .

In view of the above admission, Major Singh cannot be allowed to resile from the position which he had once taken because it is an elementary rule that a party litigant cannot be permitted to assume inconsistent positions in Court to the detriment of his opponent. If the parties have taken up a particular position before the Court at one stage of a litigation, it is not open to them to approbate and reprobate and resile from that position. This wholesome doctrine applied not only to the successive stages of the same but also to another suit than the one in which the position was taken up. On this point, reference can be had to the ratio laid down in Udrej Singh and Another Vs. Ram Bahal Singh and Others, .

As a sequel to the above discussion, this appeal is allowed, the judgment and decree dated 12.1.1984 passed by the learned District Judge, Faridkot, is set aside and that of the trial Court dated 19.12.1981 restored. However, the parties are left to bear their own costs.