Harnam Singh vs Gurbax Singh

B. Rai, J.—This Regular Second Appeal has been filed by the Defendants against the judgment and decree, dated August 31,1979 passed by the 1st Additional District Judge, Ferozepur, vide which judgment and decree, dated October 5, 1977 of the trial Court were affirmed and the appeal was dismissed.

For the proper appreciation of the controversy between the parties, pedigree-table of the parties would of advantage:

Brief facts of the case are that one Shangara Singh son of Bhan Singh resident of village Sadhara was the owner of total land measuring 95 Kanals 12 Marias as per jamabandi for the year 1967-68, fully described in the head-note of the plaint. Said Shangara Singh died on April 28,1968. It was pleaded that the parties wee governed by Hindu Succession Act. As such, the Plaintiffs are entitled to 1/3 rd share of the property left by Shangara Singh, while Defendants are entitled to 2/3 rd in equal shares. It was further pleaded that Harnam Singh got the mutation regarding the inheritance of Shangara Singh sanctioned in favour of his son Sewa Singh and his grandson Achhar Singh on the basis of Will, dated may 1,1968 and entered into possession of the land in dispute. According to the Plaintiffs, the Will referred to above is a forged document. It is most unnatural and executed under suspicious circumstances. Therefore, it has no effect on the rights of the Plaintiffs, as the execution of the Will is not known to the parties as they are governed by customary law in the matter of alienation.

The Defendants refused to admit the claim of the Plaintiffs which led them to file a suit for declaration that they are owners of land measuring 31 Kanals 18 Marias being 1/3 rd share of land measuring 95 Kanals 12 Marias, by inheritance from Shangara Singh with all rights appurtenant thereto and share in wells, canal, Shamlat etc. with all rights of ingress and egress with consequential relief for joint possession of the suit land.

The suit was contested by the Defendants alleging that the Plaintiffs are not related to Shangara Singh deceased in any maimer. Shangara Singh had one son and one daughter, namely, Harnam Singh and Harnam Kaur Defendants 1 and 2. Shangara Singh had died few days after May 1, 1968. The deceased made a valid Will in favour of Sewa Singh and Achhar Singh on his free will and hat the mutation was rightly sanctioned in their favour. The deceased had love and affection for Defendants 3 and 4, Sewa Singh and Achhar Singh. According to Defendants, Shangara Singh had died on May 4, 1968 and not on April 28,1968 as alleged by the Plaintiffs. According to them, the copy of the death entry produced by the Plaintiffs appears to be interpolated. The correctness of pedigree-table was not disputed.

The pleadings of the parties gave rise to the following issues:

(1) Whether the Plaintiffs are entitled to inherit the land of Shangara Singh? if so, to what extent?

(2) Whether Shangara Singh made any valid Will in favour of Achhar Singh and Sewa Singh Defendants? OPD

(3) Whether the plaint discloses a cause of action? OPP

(3A) Whether the amended plaint is in accordance with the order of amendment? If not its effect? OPP (Framed as per order dated 2.11.1974).

(3B) When Shangara Singh died? (Framed as per order dated 3.3.1976)

(4) Relief.

After considering the oral and documentary evidence led by the parties, under Issue No. 1, it was held by the trial Court that Plaintiffs being the heirs of Jit Singh son of Kundan Singh are entitled to inherit 1/3 rd share out of the total land in dispute. However, it was observed that ultimate decision of rights of the Plaintiffs shall depend on the findings on Issue No. 2, as Defendants 3 & 4 had placed on record a Will purported to have been executed by Shangara Singh. Therefore, this Issue was decided accordingly. Issues 2 and 3 were taken up together and evidence on Issue No. 3A was also discussed thereunder. It was found that the Will Exhibit D1 had been manufactured by the alleged legatees in connivance with Scribe Gian Chand and marginal witnesses. It was further held that after forging the Will the same had been subsequently forged by Santokh Singh, Hira Singh and Dara Singh. Therefore, Issue No. 2 was decided against the Defendants. While so holding, it was ordered that with a view to eradicate perjury and fabrication of false evidence, a complaint should be filed against the above-named persons in the Court of learned Chief Judicial Magistrate, Ferozepur. Under Issue No. 3 it was held that death of Shangara Singh had certainly given a cause of action to the Plaintiffs. This issue was, therefore, decided in favour of the Plaintiffs. Issue No. 3A was not contested. Accordingly, it was decided in favour of the Plaintiffs. Consequently, suit of the Plaintiffs was decreed with costs for declaration to the effect that the Plaintiffs are owners by inheritance of Shangara Singh deceased to the extent of 1/3rd share of the total land measuring 95 Kanals 12 Marias as detailed in the head note of the plaint and also with all rights appurtenant therewith, with a consequential relief for joint possession of the land in dispute.

The Defendants feeling aggrieved, preferred an appeal which was dismissed by the learned Ist Addison District Judge vide his judgment and decree, dated August 31,1979.

The Defendants having failed before the first appellate Court, came to this Court in Second Appeal.

I have heard the learned Counsel for the parties and have carefully gone through the record. It was argued by the learned Counsel for the Appellants that origin of the Plaintiffs is not known. Shangara Singh had only one son and one daughter, namely, Harnam Singh Defendant No. 1 and Harnam Kaur Defendant No. 2. Kundan Singh was not the son of Shangara Singh. Therefore, the Plaintiffs alleged grand-children of Kundan Singh alleged son of Shangara Singh are not entitled to the estate of Shangara Singh (deceased). In order to prove that Kundan Singh grand father of the Plaintiffs was the son of Shangara Singh, the Plaintiffs examined Jagir Singh(PW1), He was 60 years of age when his statement was recorded on December 16.1974, Smt. Bhagan (PW2) mother-in-law of Jit Singh son of Kundan Singh and Gurbaksh Singh son of Jit Singh, one of the Plaintiffs. Labh Kaur is the widow of Kundan Singh and mother of Jit Singh. PW1 has given the pedigree of the parties. It was also stated that he attended the wedding ceremony of Jit Singh son of Kundan Singh son of Shangara Singh which was performed by his grandfather Shangara Singh and his uncle Harnam Singh Defendant No. 1. According to him, marriage of Jit Singh was performed a year before the partition of the country. It was also stated by him that wife of Jit Singh had died about 5/6 years back and he had been going to village Sadhara off and On where Jit Singh lived. He stated that Kundan Singh had died about 5/7 years before the partition of the country and his son Jit Singh was killed by the police on Indian side of the border; and the Plaintiffs 1 to 7 are the children of Jit Singh. Jit Singh lived in villages Sadhara and Beri Kadrabad, while Mohinder Kaur (Plaintiff No. 8) is daughter of Kundan Singh. It was stated by Jagir Singh (PW1) that marriage of Jit Singh was performed by Shangara Singh and Harnam Singh. He had given Neondra and had also gone with the marriage party. Jagir Singh (PW1) being the collateral of the parties had the special means of knowledge regarding the inter se relationship between the parties and with Shangara Singh. Smt. Bhagan while appearing as PW2 on April 28,1974 gave her age as 80 years. It was stated by her that her daughter Gurbachan Kaur was married to Jit Singh son of Kundan Singh. That marriage was performed tow years before the creation of Pakistan. It was further stated by her that her husband had died before the marriage of her daughter. Therefore, she had asked his son-in-law Jit Singh to look after the land in village Beri Kadrabad and Shangara Singh and Harnam Singh used to visit village Beri Kadrabad to meet their grandson and son, respectively. Jit Singh used to address Shangara Singh as Dada and Harnam Singh as Chacha, respectively. She also stated that at the time of the marriage of her daughter Gurbachan Kaur with Jit Singh, Neondra was given and the same was recorded in bahi which had been left in Pakistan. Gurbaksh Singh (PW3) stated that Jit Singh used to address Shangara Singh as Dada and Harnam Singh as Chacha. Whatever has been stated by Smt. Bhagan (PW2) and Gurbaksh Singh (PW3) was not challenged in their cross-examination. Jagir Singh (PW1), Smt. Bhagan (PW2) and Gurbaksh Singh (PW3) being the close relations had the special means of knowledge regarding inter se relationship of the Plaintiffs and Shangara Singh. Their evidence fully satisfies the requirements of the provisions of Section 50 of the Indian Evidence Act. Not only this, documentary evidence is also available on the record which further goes to prove the relationship of the Plaintiffs with Shangara Singh. In mutation No. 2()l, exhibit P9, pedigree-table has been given wherein Shangara Singh has been shown to have two sons, namely, Harnam Singh and Kundan Singh and Jit Singh as son of Kundan Singh. The Plaintiffs are the heirs of Jit Singh. This mutation is regarding the inheritance of Shangara Singh and was sanctioned at the instance of Sewa Singh and Achhar Singh, Defendants 3 and 4 after the death of Shangara Singh. The said mutation was sanctioned in the year 1972, i.e. long before the controversy arose between the parties. Therefore, it is difficult to believe the assertion of the Appellants that there is no evidence showing the relationship of the Plaintiffs with Kundan Singh and that of Kundan Singh with Shangara Singh, In Jamabandi Exhibit P4, Shangara Singh is recorded to be the son of Bhan Singh son of Lehna Singh and in Jamabandi Exhibit P3, Jit Singh is entered as son of Kundan Singh and grandson of Shangara Singh. No doubt, entries in Jamabandi are made for fiscal purposes and is not a document to prove the relationship. However presumption of truth is attached to the entries in the record of rights. Therefore by itself, Jamabandi may not be a piece of evidence to prove the relationship but to my mind, it certainly lends some credence to the oral evidence led by a party for proving the relationship of one with the other. Exhibit P1 is the pedigree-table showing inter se relationship of the persons mentioned therein which further lends assurance to the oral evidence of Smt. Bahgan (PW2) and Gurbaksh Singh (PW3). Therefore, it cannot be said that the Plaintiff-Respondents have not been successful to prove the relationship of Kundan Singh with Shangara Singh deceased, and that of Plaintiffs with Jit Singh son of Kundan Singh it is significant to note that the Defendants did not lead any evidence to rebut the evidence led by the Plaintiffs to prove their relationship with Shangara Singh deceased. Both the Courts below have rightly found that the Plaintiffs have been successful in proving their relationship with Shangara Singh deceased.

It was next argued by the learned Counsel for the Appellants that Will Exhibit Dl was validly executed by Shangara Singh on May 1, 1968 in favour of his grandson Sewa Singh and great grandson Achhar Singh son of Pashaura Singh while in sound disposing mind. It was also argued that in the plaint it was alleged by the Plaintiff that Shangara Singh had died on may 1, 1968 or May 4, 1968, but the Courts below relying on the fictitious death entry Exhibit P8 relating to the death of Shangara Singh wrongly came to the conclusion. Thus, the finding recorded by the Courts below is against pleadings and factual position that Shangara Singh had died on April 28, 1968. According to the learned Counsel, the Defendants have led cogent and convincing evidence to prove that Shangara Singh had died on May 4, 1968 and not on April 28,1968. It was also argued that suit filed by the Plaintiff-Respondents was time-barred, but no finding was record by the Courts below on the point of limitation.

After going through evidence, I am unable to agree with the contentions raised by the learned Counsel for the Appellants. A perusal of written statement, dated March 3, 1976, shows that as per allegations of the Defendants themselves, Shangara Singh had died on May 4,1968, whereas they claim the Will Exhibit Dl to have been executed by Shangara Singh on may 1, 1968. Gian Chand (DW1) is the scribe of the Will Exhibit D1, while Charan Dass and Surat Singh (DWs 2 and 3) are the attesting witnesses of the Will. Sewa Singh while appearing as DW.4 also deposed to the execution of the Will by Shangara Singh while in sound disposing mind According to him, the Will was written when he was preparing tea. After execution of the Will, it was handed over to him by Shangara Singh who died 4/ 5 days thereafter. A close scrutiny of the evidence of the scribe, attesting witnesses and Sewa Singh (DW4) goes to show that Will Exhibit Dl is not proved to be a validly executed Will by Shangara Singh. A perusal of Will Exhibit Dl would show that it purports to have been executed by Shangara Singh on May 1,1968 but in para 2 of the written statement dated march 3, 1976 it was averred by the Defendants that Shangara Singh had died on May 4, 1968 and not on April 28, 1968. Exhibit P8 is the death certificate which goes to show that Shangara Singh had died on April 28, 1968. No evidence was led by the Defendants to show that Death certificate is forged or fabricated document. It having been issued by the competent authority in the regular course of discharge of official duties has to be taken as an authentic document as the acts done in the discharge of official duties are presumed to have been done correctly. Therefore, it is clearly proved that Shangara Singh had died on April 28, 1968. Once it is found that Shangara Singh had died on April 28,1968, it is hard to believe that Will Exhibit D1 was executed by Shangara Singh on May 1, 1968. The obvious result is that the Will Exhibit Dl is a forged, fictitious and manufactured document. It appears that it was prepared by Gian Chand Scribe (DW1) at the instance of Sewa Singh and Achhar Singh, Defendants 3 and 4, beneficiaries under the Will and in connivance with Surat Singh and Charan Dass alleged attesting witnesses of the Will. It is not the case of the Defendants nor any evidence was led to show that besides Surat Singh and Charan Dass, the Will Exhibit D1 was also attested by Santokh Singh, Hira Singh and Dara Singh. A perusal of the Will shows that it was also attested by them. The Will was attested by two witnesses, Surat Singh and Charan Dass and it required no further attestation, but the perusal of the Will would show that it was also attested by Santokh Singh, Hira Singh and Dara Singh. It appears that signatures of Santokh Singh, Hira Singh and Dara Singh were obtained on the Will at some later sage by Sewa Singh and Achhar Singh perhaps with a view to attach more and more authenticity and validity to the Will which has proved otherwise. Therefore, the finding recorded by the two Courts below to that effect being well founded, is affirmed.

No other point was raised or canvassed.

The appeal is devoid of any merit and the same is hereby dismissed with costs.