Hukam Singh and others vs Smt. Udham Kaur

H.R. Sodhi, J.—This is a defendants'' appeal against the judgment and decree dated 31st August, 1962, passed by the Additional District Judge, Jullundur, who reversing the decree of the trial Court decreed the suit of the plaintiff respondent for possession of the suit land. The land in dispute measuring 237 Kanals and 13 Marias, and situate in village Daroli Kalan, Tehsil Jullundur, as referred to in the plaint was originally held by Gopal Singh who had two sons Udham Singh and Dalip Singh. Udham Singh died on 29th March. 1902, leaving behind Mst Hukman as his widow She died on 28th June, 1958. Dalip Singh had died issueless on 14th April, 1913. Gopal Singh died leaving behind Mst. Gabo, his widow, and the daughter Udham Kaur, plaintiff. Mst. Gabo died somewhere in the year 1952 and on her death the estate of Gopal Singh was mutated in the name of Mst. Hukaman. Mst. Hukaman is alleged to have executed the will Exhibit D. 7 on 18th June, 1958, in favour of defendants appellants who are sons of Hira Singh brother of Gopal Singh. Udham Kaur plaintiff instituted the present suit for possession of the demised land on 19th March, 1960, pleading inter alia that she was the daughter of Gopal Singh by his first wife Mst. Gabo and entitled to inherit the property under custom governing the parties. 1 he will Exhibit D. 7 said to have been executed by Mst. Hukn.an was also challenged on the ground that it was a forged document and that in any case the deceased was not possessed of sound disposing mind at the time when she is purported to have executed the will. The defendants in whose favour the will is supposed to have been executed contested the suit. It was denied by them that the plaintiff was daughter of Gopal Singh deceased and her locus standi to file the suit was challenged. It was further pleaded that even if the plaintiff was the daughter of Gopal Singh, she was not an heir preferential to the defendants. It was claimed by the defendants that Mst. Hukman had become the absolute owner of the property in dispute on the coming into force of the Hindu Succession Act, 1956, and being possessed of sound disposing mind was competent to make a will. Preliminary objections as to court-fee and jurisdiction were also taken by the defendants. The parties went to trial on the following issues:

(1) Whether the plaintiff is the daughter of Gopal Singh?

(2) Whether the plaintiff was entitled to half property in suit held by Mst. Gabo as her alleged daughter?

(3) Whether the land in suit is ancestral?

(4) If issue No. (1) is proved, whether the plaintiff is not the heir of Hukman?

(5) Whether Mst. Hukman executed a valid will in favour of the present defendants?

(6) Whether the suit is properly valued or purposes of court-fee and jurisdiction?

(7) Whether the plaintiff is estopped from filing the suit by her conduct?

(8) Relief.

Issue No. (1) was decided by the trial Court in favour of the plaintiff and it was conceded by the parties that they were governed by custom when Mst. Gabo died on 13th October, 1952. Under issue No. (3), it was held that some part of the suit land was ancestral while other was non-ancestral. Issue No. (6) was treated as a preliminary issue and decided in favour of the plaintiff. The main contest of the parties centered round issue No. (5) which related to the validity of the impugned will. The trial Court on a consideration of the entire evidence came to the conclusion that Mst. Udham Kaur was possessed of sound disposing mind at the time of execution of the disputed will and she did in fact execute the said will in favour of the defendants appellants for services rendered by them.

The defendants produced Badri Dass D. W. 6, a petition writer of Jullundur who was alleged to be the scribe of the will and also two attesting witnesses Gurbaksh Singh son of Ganda Singh (D.W. 4), and Gurbaksh Singh son of Hukman Singh (D. W. 5) both residents of Daroli Kalan. It is a common ground between the parties that the will was executed at Jullundur and Hukam Singh defendant, one of the beneficiaries under the will, was present at the time of its execution. In view of the issue as to the genuineness of the will, it became necessary to find out if the thumb impressions purported to be those of Mst. Hukman were really affixed by her. The defendants produced two experts from Finger Print Bureau Phillaur, namely Ram Partap D. W. 3 and Agya Ram who was examined on commissioner on 27th March, 1981. Ram Partap had earlier given evidence in the Court of Magistrate First Class, Jullundur, in some criminal proceedings between the same parties relating to the forgery of this very will and made a statement, a certified copy of which was placed on the record of this case as Exhibit D. 1. The trial Court had admitted the copy of the statement of Ram Partap as part of evidence in the instant case and the record does not show that any objection was taken by the counsel for the plaintiff as to its admissibility. Ram Partap stated that he had prepared enlarged photographic copies of the thumb impressions but those enlargements were on the record of the criminal case. He also deposed that the thumb impressions on the will tallied with the admitted thumb impressions of Mst. Hukman. Agya Ram though examined as an expert did not say in his statement specifically that he was an expert. He stated that he had compared in Court the thumb impressions on deposit receipt PB/C marked ''E'', ''D'' on PB/A. ''B'' and ''C on a power of attorney dated 15th February, 1954, ''A'' on Fard Nilam dated 8th February, 1954, ''F'' and ''G'' on pages of Khata Bahi Nos. 20 and 19 with the impression marked Exhibit PD/1 on the will Exhibit PD. In his opinion, some of the admitted thumb impressions of Mst. Hukman tallied with those on the will.

The plaintiff also produced P. W. 5 Shanti Sarup fingerprint expert, but she did not get the thumb impression of Mst. Hukman marked ''F'' on the Bahi account kept with the Cooperative Society. Daroli Kalan, compared with the thumb impressions on the disputed will Exhibit D. 7. The plaintiff also sought to prove that the thumb impressions on the will did not tally with her admitted thumb impression maintained in the register of Puran Chand petition writer, but the expert was not examined by her on this point. The matter was taken up in appeal before the Additional District Judge, Jullundur, who allowed the appeal of the plaintiff and decreed the suit holding that Mst. Hukman did not execute any will in favour of the defendants. Findings on issue No. (5) alone were debated before him. He discarded the statement of Agya Ram on the short ground that he had not stated in his statement that he was an expert in the science of finger print. The evidence of Ram Partap D.W. 3 was not even referred to by him and he relied on certain discrepancies in the statements of the attesting witnesses and a few other circumstances which he considered to be suspicious. Hence the present appeal.

The learned counsel for the parties have addressed their arguments before me only on issue No. (5) Findings on other issues have not been challenged. The question whether a will is a genuine or a forged document is primarily one of fact and the findings of the lower appellate court must normally be accepted as final. High Court in second appeal cannot interfere with such a finding unless it stands vitiated either because some evidence has been misread or not considered by the lower appellate Court in giving its decision. It can also be interfered with if High Court is of the opinion that the finding is so perverse that no reasonable person could come to the same.

It is contended by Mr C. D Dewan learned counsel for the appellants that in the instant case the finding of the Additional District Judge that the will is a forged one is not based on consideration of the entire evidence on the record. He vehemently submits that the statement of Agya Ram should not have been rejected on the ground that he had not stated in so many words that he was an expert. It is, however, clear that he was working as an expert on the finger print and was examined on commission as an expert.

The other contention is that the evidence of Ram Partap has not even been referred to by the lower appellate Court and this fact alone is enough to vitiate the findings of fact. There is force in the contentions raised by the learned counsel for the appellants Evidence of a thumb impression expert has an important bearing and is bound to be of great value in determining the issue regarding the validity of a document which purports bear thumb impressions of an executant when those thumb impressions are denied- It is a matter of common knowledge that science of finger print is more exact than that relating to hand writing In cases of comparison of finger prints, the points of similarity and difference are easily discernable and the Courts must apply their mind properly to the evidence of experts in such cases. The Additional District Judge committed a gross error of law in not even considering the evidence of Ram Partap D. W. 3.

Mr. G. C. Mittal, learned counsel for the respondent, contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge I am afraid there is no merit in this contention. The trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D. 1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement made by him in the committing Court. It appears that the counsel for the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross-examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to approbate and reprobate.

The next question to be determined is as to whether this Court should appreciate that evidence of the experts in the light of the other oral evidence on the record or the case be remanded to the lower appellate Court for re-decision. The High Court in second appeal cannot go into the appreciation of evidence. It is the Court of first appeal alone which should be directed to look into the entire evidence properly and then give its findings I do not wish to express any opinion whatsoever on evidence as it is, and remand the case to the Court of first appeal for a fresh decision in accordance with law after considering the whole of the evidence on the record I accordingly allow the appeal, set aside the judgment and decree of the Additional District Judge, jullundur, and remand the case to the District Judge. The parties have been directed to appear before the District Judge, Jullundur, on 22nd March, 1969 who may dispose of the appeal himself or send it to additional District Judge as he may think proper. There is no order as to costs in this Court.