Jagjit Singh vs Pritam Singh and Others

A.L. Bahri, J.—Vide this judgment two Regular Second Appeals (Nos. 1115 of 1987 and 1829 of 1987) are being disposed of as they have arisen from the same suit. The appellants in both these appeals are the defendants.

The suit was filed by Pritam Singh and his two sisters, Tej Kaur and Bhagwan Kaur, for declaration that decree dated August 30, 1979 in suit "Jagjit Singh v. Mehar Singh" was obtained by aforesaid Jagjit Singh illegally and fraudulently and mutation No. 12 attested on March 28, 1981, on the basis of the aforesaid decree with respect to the land in dispute measuring 55 Kanals-15 Marlas was not binding on the plaintiffs, who claimed title to the land on account of natural succession. They also claimed decree for possession of the aforesaid land. Common ancestor of the plaintiffs and Mehar Singh deceased was Budh Singh. He had three sons namely Wazir Singh, Gajjan Singh and Hira Singh. Mehar Singh was son of Hira Singh, who died unmarried and issueless. Gajjan Singh had a son, Gurdit Singh, and Pritam Singh etc. plaintiffs are his children. The third son of Budh Singh namely Wazir Singh also died issue- less. This pedigree table would show that the plaintiffs are children of brother of Hira Singh, whose son was Mehar Singh.

While contesting the suit, the defendants put forth alternative pleas. They asserted that the consent decree suffered by Mehar Singh was valid. Mehar Singh had also adopted Jagjit Singh defendant and Mehar Singh also willed away his property in favour of Jagjit Singh and others. Some other pleas were also taken and the suit was tried on the following issues: -

1) Whether the decree dated 30.8.1979 was obtained by defendant No. 1 through fraud and misrepresentation? OPP

2) Whether the suit is not within limitation? OPD

3) Whether the suit is barred by the principle of res judicata? OPD

4) Whether the suit is bad for non-joinder of necessary parties? OPD

5) Whether Mehar Singh deceased executed a valid will in favour of defendant No. 1 and against two brothers on 17.5.1976? OPD

6) Whether the plaintiff has got no locus-standi to file the suit? OPD

7) Relief.

The trial Court decided issue No. 1 against the plaintiffs, holding that the consent decree was not obtained through fraud or misrepresentation. Issue No. 2 was decided in favour of the defendants. The suit was held to be not within time. Issue No. 3 was decided against the defendants that the suit was not barred by the principle of resjudicata. Issue No. 4 was decided against the defendants, holding that the suit was not bad for non-joining of necessary parties. Issue No. 5 was decided in favour of the defendants holding that Mehar Singh had executed a valid will in favour of Jagjit Singh defendant and his two brothers on May 17, 1976. Issue No. 6 was decided in favour of the defendants that the plaintiffs had no locus-standi to file the suit. Hence, the trial Court dismissed the suit. The lower appellate Court on appeal reversed the judgment and decree of the trial Court. The findings on major three issues, relating to the decree, adoption and the will were given in favour of the plaintiffs and against the defendants. Jagjit Singh appellant in Regular Second Appeal No. 1115 of 1987 though questioned the findings of the trial Court on these three points, however, primarily attack was on the findings of the lower appellate Court with respect to the consent decree and adoption. In the second appeal primarily the challenge is to the other findings of the lower appellate Court with respect to the will. The interest of the appellants in both these appeals is common that they seek dismissal of the suit.

On one of the questions raised in these appeals, the matter was referred to the Division Bench of this Court. The question raised was as to whether a consent decree relating to the land of the value of more than Rs. 100/- required registration under the Registration Act, to make it valid. Such a question has been answered in the negative by the Division Bench of this Court in Gurdev Kaur and Another Vs. Mehar Singh and Others, . It was held as under:-

"A compromise decree regarding immovable property which is subject matter of the dispute in the suit, does not require registration, even if title is created in favour of the decree-holder for the first time under the decree, whether with consideration or without consideration."

It was also held as under:-

"A compromise or consent decree can be got set aside by one of the grounds on which a contract can be set aside, namely, if obtained by ''fraud'', ''misrepresentation'' or ''coercion'', with an additional ground in favour of the minors or persons of unsound mind, if they are able to prove that the next friend or the guardian, who acted on their behalf, was negligent in conducting the proceedings. If none of these grounds is established, the Courts in a subsequent suit will have no jurisdiction to go behind the con sent decree to find out whether the facts stated in the plaint, which culminated into compromise decree were right or wrong."

Hence on other points the appeals are decided on merits.

Before issues are discussed, some background of the case is required to be noticed, which would enable the Court to properly discuss the questions debated. The jamabandi relating to the land in dispute produced on the file is Exhibit P-3. The plaintiffs or their predecessor-in-interest are not recorded as owners or joint owners of this land. This jamabandi for the year 1979-80 in the column of ownership describes Mehar Singh, son of Hira Singh, son of Budh Singh, as owner in possession alongwith share in Shamlat- deh through Smt. Lajwanti, half-share, and Gurdass Mal etc. half share. This would indicate that this land was not ancestral qua Pritam Singh etc plaintiffs and Mehar Singh. This entry is with respect to 43 Kanals 2 Marlas of land and with respect to the remaining 12 Kanals 13 Marlas of land the entry is in the name of Mehar Singh exclusive. Thus, this land is to be treated as self acquired property of Mehar Singh. It may be stated that the plaintiffs Pritam Singh and others did not claim in the suit the land to be ancestral. Mehar Singh being unmarried and issueless, was living separately from the plaintiffs Pritam Singh and others. Evidence would be discussed in this respect. There was no reason for Pritam Singh and others to take care of Mehar Singh in his old age, who did not possess any ancestral land joint with the plaintiffs. Since Mehar Singh was unmarried and issueless, it was natural on his part to bequeath or transfer his property in favour of those persons who were rendering him services. It is in this background that the entire case is to be approached.

Dealing with the question of validity of consent decree, it may be emphasised that Mehar Singh even after passing of the consent decree on August 30, 1979, subsequently appeared before the Revenue Officer during mutation proceedings and admitted correctness of the decree. It was thereafter that mutation of the land covered by that suit was entered in the name of Jagjit Singh and others, defendants. No doubt, as held by the Division Bench in Gurdev Kaur''s case (supra), a consent decree could be got cancelled or set-aside on proof of misrepresentation or fraud. The element of misrepresentation or fraud is thus completely eliminated when Mehar Singh himself subsequently accepted the decree during mutation proceedings, as stated above. Mehar Singh lived for about 2-1/2 years after passing of the aforesaid decree and did not challenge the same. It was only after his death that the plaintiffs filed the present suit in October, 1982, to challenge this decree on the ground of misrepresentation and fraud having been played on Mehar Singh. If fraud is alleged, it is expected of the parties raising such a plea to give details of the fraud and then to substantiate such a plea. In the plaint, it is mentioned that in the suit in which consent decree was passed, Jagjit Singh defendant fraudulently described himself to be an adopted son of Mehar Singh. He again wrongly described himself as coparcener and that on these facts a collusive decree was obtained abusing the process of the Court. In fact he was never adopted by Mehar Singh least of all validly and he was never coparcener with Mehar Singh. Property in dispute was also not co-parcenery property. Defendant No. 1 Jagjit Singh was not at all related to Mehar Singh and was a complete stranger. Since adoption was also being questioned in the present suit, it is considered desirable at this stage that this question be also discussed.

In order to prove that Jagjit Singh was adopted by Mehar Singh, the defendants produced oral as well as documentary evidence to support it. Oral evidence consists of the statements of DW-1 Atma Singh, DW-3 Kartar Singh, DW-7 Dalbir Singh, DW-8 Jangir Singh and DW-9 Basant Singh, father of Jagjit Singh defendant DW-1 Atma Singh that Mehar Singh was residing with Bansant Singh (father of Jagjit Singh defendant). At the time of adoption, according to him, path was performed and Jagjit Singh was put in the lap of Mehar Singh by his parents. Thereafter Mehar Singh used to call Jagjit Singh as his son and Jagjit Singh used to call him as his father. It was Basant Singh who performed Kirya ceremony on the death of Mehar Singh and also visited Hardwar to immerse his remains. The aforesaid witnesses also deposed about the adoption. The evidence of these witnesses has been discarded by the lower appellate Court on flimsy and irrelevant considerations. It is observed by the lower appellate Court that the parties belong to Jat and Deo communities and were effluent and if adoption had infact taken place, a big ceremony must have been performed. Reliance has been placed on the decision in Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, , which decision has been pressed during arguments by the learned counsel for the plaintiffs. It is further pointed out that if shagun of Rs. ten, five or two were offered, such records were required to be produced in Court. Since witnesses were unable to depose about the relationship of the plaintiffs with Mehar Singh, although they were belonging to the same village, their testimony was not acceptable. The approach of lower appellate Court is not correct. At the out-set, it may be stated that these witnesses are not related to Mehar Singh as such that they were expected to know distant relations of third or fourth degree. Since the adoption had taken place several years ago, non-production of any account or receipt of shagun could not be considered as a ground to discard the testimony of the witnesses. No doubt the parties are jats and there is no such evidence that they are affluent families that the adoption ceremony should have been performed with pomp and show, as held by the Supreme Court in the case of A. Raghavamma (supra). Subsequent conduct of the parties in recognition of adoption is now a days very material. Much evidence was not required to be produced in the present case more so when there was direct evidence of Mehar Singh himself accepting adoption and treating Jagjit Singh as his son.

Learned counsel for the plaintiffs/respondents placed reliance on another decision of the Supreme Court in Rahasa Pandiani (dead) by Lrs. and Others Vs. Gokulananda Panda and Others, which was a case of alleged adoption, for which no adoption-deed was prepared and the other evidence produced was not clinching to prove the adoption. The priest who performed the path at the time of adoption was not produced. It is urged that there was no change of name of the adopted son as jagjit Singh subsequently also described himself as son of his original father while appearing in the Matriculation Examination. As a matter of fact, such a question is to be decided on the facts and circumstances of each case and no decision can be followed as a precedent. It is only ratio of the decision with respect to interpretation of law which is binding on the Courts. The question of adoption raised in the present case is thus primarily to be decided on the facts alleged and proved. The lower appellate Court at one stage was of the view that the question of adoption had been waived by the defendants as their two attempts to get the issue framed to this effect failed. This approach is entirely incorrect. Inspite of two attempts being made, a specific issue in this respect was not framed by the trial Court. In the second order the Court observed that the plea was covered in another issue. Be that as it may, when parties have led evidence on their respective pleas, framing of issue becomes immaterial. Since the question was discussed by the lower appellate Court on reference to the evidence produced, the same is again discussed in this Court. The evidence has been gone through in the circumstances stated above. No doubt Jagjit Singh described himself as son of his original father while taking Matriculation Examination, but there is other evidence showing conduct of the parties supporting the plea of adoption. The judgment in the previous suit dated August 30, 1979, Exhibit P-1 shows that it was plea of Jagjit Singh that he was adopted son of Mehar Singh and this plea was accepted as correct in the written statement filed by Mehar Singh Exhibit - DW-4/B. Charanji Lal Advocate has proved this written statement as having been thumb-marked by Mehar Singh, which was filed in the earlier suit. This conduct of Jagjit Singh and Mehar Singh describing each other as son and father lends full corroboration to the factum of adoption. May be for certain reasons Jagjit Singh in the Matriculation examination described himself as son, of original father, however, that is not considered enough to hold that adoption was not proved.

Learned counsel for the respondents/plaintiffs further argued that the decree was obtained on wrong facts and thus cannot be held to be a valid decree. Infact Jagjit Singh was not adopted son of Mehar Singh and there was no coparcenery property and partition thereof. Such settlement thus cannot be described as voluntary, but was induced by fraud, coercion and undue influence. Reference has been made to the decision of Supreme Court in Kale and Others Vs. Deputy Director of Consolidation and Others, . The ratio of the decision aforesaid cannot be attracted to the case in hand. A clear cut distinction was drawn in that case with respect to family settlements or memorandum of such settlements that memorandum was not required to be registered. The present is a case of Mehar Singh suffering a consent decree and is not a case of any collusive decree having been obtained in order to affect any body''s rights. As already stated above, Mehar Singh did not possess any ancestral land qua the plaintiffs that it could be said that the plaintiffs'' right remotely would be affected by transfer of such right. The property being self acquired, Mehar Singh was at liberty to dispose it of by any form of transfer. A consent decree at the most could be treated as a transfer of property in which no other person except Mehar Singh had interest or title. Thus there was no question of playing any fraud on Mehar Singh by obtaining such a consent decree to deprive any other person of such property. As already stated above, Mehar Singh lived for about 2-1/2 years after passing of such a decree and did not challenge it. Rather he accepted it as good and valid during the mutation proceedings.

The question as to whether Mehar Singh had developed love and affection for the children of Basant Singh, with whom he was residing also, stands fully established. For sometime prior to his death, as admitted by both the parties, he had suffered paralysis. PW-2 Pritam Singh, though asserting that he purchased medicines for Mehar Singh, had to accept that Mehar Singh was living separately. This would indicate that the plaintiffs allegation that Mehar Singh was residing with them and they were rendering services to Mehar Singh or they performed his Kirya ceremony cannot be accepted. On the other hand defendants evidence that Mehar Singh was living with them and they performed Kirya ceremony is acceptable, furthermore even the voters'' list Exhibit D2 supports them. The name of Mehar Singh was recorded as a voter alongwith the defendants. This lends full support to the defendants'' evidence that Mehar Singh was living with them. Thus, findings of the lower appellate Court with respect to the adoption and validity of the consent decree are aside holding that Mehar Singh adopted Jagjit Singh defendant validly and suffered a consent decree which was also valid.

In the cross-appeal, the finding of the lower appellate Court on the question of will is also challenged although in the other appeal it becomes immaterial as the consent decree aforesaid has been held to be valid and the question of validity of the will thus would loose significance. Since the question was debated, it is being discussed.

So far as the principle of law with respect to the strict proof of the will is concerned, is not being disputed. Will is a sacrosanct document which comes into force after the death of executant. This special document requires a special mode of proof, as required u/s 63 of the Indian Succession Act. The proponder of the will is also expected to remove all suspicions attached to its execution. With this background of law, the evidence produced in the present case deserves to be discussed. As per findings recorded above that Mehar Singh was living in the house of Basant Singh, who alongwith his family members, i.e. defendants, was rendering services to him, it was natural for Mehar Singh to execute the will in their favour. Mehar Singh did not have any close blood relation that he was required to record reasons to dis-inherit them. General observation made in some of the cases is that there should be a reason for execution of the will in favour of the persons other than the natural heirs, such a principle, strictly speaking, is not applicable to the case in hand. The relationship between Mehar Singh and the plaintiffs, as already stated above, is that the plaintiffs are third or fourth degree collaterals, being grand sons of brother of father of Mehar Singh. It was not necessary in such circumstances even to name such distant collaterals or to give reasons of depriving them from natural succession. Coming to the will in question Exhibit D-1, no doubt Mehar Singh described Jagjit Singh and others as his grand children, but that was on account of his love and affection, otherwise he categorically described himself as issueless and without any wife, in this very will. It was mentioned in the will that Jagjit Singh and others were rendering services to him and he was residing with them. It was on that account that he was executing will in their favour. Prima-facie no suspicious circumstances as such was attached to the execution of the will Exhibit D-1 on this account. This will was scribed by Kewal Krishan Advocate, who entered the witness-box alongwith other witnesses. The evidence of this witness was again discarded by the lower appellate Court on flimsy grounds that he being belonging to the same village did not know the other relations of Mehar Singh. This could hardly be a ground for discarding testimony of a witness. It is not expected from any person, except the close relation, to depose about the relations of a particular person. Evidence of relationship can be given by a person who has special means of knowledge. Kewal Krishan Advocate was not such a person who was either deposing about the relationship of Mehar Singh that he was expected to know other relations, degree to degree, of Mehar Singh. The other ground to discard the evidence of this witness was that he had not produced the register wherein he was expected to enter the document scribed by him. It is further argued that Kewal Krishan was practising at Bhatinda and was not expected to visit Nathana for execution of the document. There is fallacy in the argument. Since Sub Registrar was available at Nathana, it was not at all uncommon or unnatural for the executant or the witnesses to go to Nathana, a nearby place from their village for the purpose of getting the document scribed and registered. If the evidence of the witnesses of a document is otherwise considered reliable and acceptable, the mere ground that evidence was discrepant on one of the points as to whether the entry in the register of the scribe was recorded or not or such a register was infact maintained or not, will not be enough to discard such a document as suspicious. The document Exhibit D-1 has been proved in accordance with the provisions of Section 63 of the Indian Succession Act from the evidence of Kewal Krishan scribe as well as other attesting witnesses. DW-1 Atma Singh duly proved the execution of this will as required by law. DW-6 Dalbara Singh is another attesting witness of the will. The evidence of these two attesting witnesses was also discarded on the ground that they could not depose about the relationship of Mehar Singh.

First of all it was noticed by the lower appellate Court that Mehar Singh had no reason to execute the will in favour of Jagjit Singh as he was not related to him. Mehar Singh belonged to Deol Gotra, whereas Jagjit Singh belonged to Sidhu Gotra of Jats. This could hardly be treated as a suspicious circumstance for which any explanation was required. The evidence has already been referred to above that Mehar Singh was not living with the plaintiffs, rather he was living with Basant Singh, father of Jagjit Singh defendant, and was being looked after by the family of Basant Singh. Both Mehar Singh and Basant Singh belonged to one community known as Jats and Gotras being different is legally no bar for adoption of Jagjit Singh by Mehar Singh under the law. Since Jagjit Singh and others, defendants, were rendering services to Mehar Singh, this was a valid reason for Mehar Singh to will away the property in their favour.

The other suspicious circumstance referred to by the lower appellate Court is non-giving of reasons to dis-inherit the natural heirs. As already stated above, the plaintiffs are third or fourth degree collaterals, who were not rendering any services to Mehar Singh and were not closely related that the factum of dis-inheriting them would have found mention in the will. Furthermore the property was not ancestral qua them in the hands of Mehar Singh. Non mentioning of such distant relations in the will or any reason to dis-inherit them cannot be considered as a suspicious or dubious circumstance.

The evidence of Kewal Krishan Garg Advocate was discarded on the ground that an advocate cannot legally execute a will in view of the provisions of Punjab Document Writers Licensing Rules, 1961. This approach is legally incorrect. There is no legal bar for an advocate to scribe documents. Rather an advocate is a person who is fully qualified having studied law in the educational carrier to scribe such like documents. The will is such a document which could be scribed by any body muchless by a professional Deed-Writer. With respect to the execution of the will, the only legal requirement is that the executant must sign or execute the document in the presence of the witnesses and they should also attest it in the presence of the executant, as provided u/s 63 of the Indian Succession Act. The executant must be of sound disposing mind. The lower appellate Court referred to Rule 3(2) of the Punjab Document Writers Licensing Rules, 1961, framed u/s 69(1)(bb) of the Indian Registration Act to the effect that a document presented for registration must be written by the licensed document- writer or by the executant himself. There is no merit in this contention. Such a question could have been relevant for consideration before the Sub Registrar before registration of the will. However, after the document is registered by the Sub Registrar, it looses significance as to who had scribed the same. On that account the registration of the document does not loose significance or its importance. As a matter of fact the will is not required to be compulsarily registered. Even unregistered will could be legally proved and acted upon in civil court if such a will had been scribed by an advocate. On that account Mr. Garg''s evidence could not be rejected that such a will could not be registered under Rule 3(2), referred to above. In this case it is not considered necessary to comment upon the constitutional validity of such a rule which prohibits documents scribed by advocates who have been duly enrolled for practice in law by the Bar Council under the provisions of the Advocates'' Act, Suffice it to say that the practice of law is not limited only to the advocates'' appearance and arguing cases in courts or tribunals or semi quasi-judicial authorities. The practice of law envisages drafting of pleadings as well as legal documents. The Registration Act provides for compulsarily registrable documents as well as other documents. There is no provision in this act asking for qualifications for scribes of such documents. The aforesaid rules of 1961 framed u/s 69(1)(bb) of Registration Act have to be read as enabling provisions which would further the objects of the Act. Qualifications prescribed in these rules for document-writers are much below the qualifications prescribed for enrolment of an advocate. There is no comparison of document writers obtaining licences under these rules for drafting documents with the advocates, who are highly qualified in the subject of drafting of pleadings and conveyances. Rule 3(2) of the aforesaid rules does not impinge upon the legal right of the advocates in the matter of practising law. Thus, the approach of the lower appellate Court treating scribing of a will by an advocate as a auspicious circumstance is erroneous in law.

Shri Krishan Lal Garg Advocate was described as a beneficiary since he was an advocate in the suit in which consent decree Exhibit P-1 was passed. This approach of the lower appellate Court again is erroneous in law. Shri Garg had no personal interest in the property willed-away or which was subject matter of the suit. If the parties had confidence in him and had got the will scribed or had otherwise secured his services in the suit, that would hardly be a ground to discard his statement made in Court as an interested person. It was his professional duty to accept the case and conduct it. That perse would not make him a beneficiary for Jagjit Singh.

Reference was also made to the nature of the will scribed, which contains super-imposed thumb impression of Mehar Singh. This approach is also incorrect. Thumb impression of Mehar Singh was obtained at the close of the will and also on its side on the face of the document. It appears that when at the close of the document thumb impression was put, it slightly tilted. Inspite of that the imprint of the thumb-impression was such that it could be examined. As already stated above, on the margin of this document thumb impression mark ''B'' was also obtained and two thumb-impressions on the back of this document were also obtained at the time of registration, one of them being mark ''D'', which was quite prominant and was examined by the document expert with the thumb-impressions of Mehar Singh on the power of attorney and written statement filed in the previous suit and was found to be that of Mehar Singh. No specific form of will is prescribed under law that the will Exhibit D-1 could be said to be not in accordance therewith. The general observation of the lower appellate Court that it did not show that it had been written with the expert opinion of an advocate, is besides the point. Rather the body of the will does not suffer from any legal infirmity. Mehar Singh was described to be 80 years old, expecting his death and he bequeathed his property in favour of the persons who rendered him services. As a matter of fact, no suspicious circumstance was attached to the execution of the will that was required to be explained by the executant. The will is duly proved and is valid.

The suit was barred by time and the finding of the lower appellate Court to the contrary is erroneous in law. In the suit the challenge is to the decree dated August 30, 1979. Under Article 59 of the Limitation Act the suit to cancel or set-aside the aforesaid decree could be filed within three years when the facts entitling the plaintiffs to have the decree cancelled first became known. Since Mehar Singh suffered the consent decree, he could file the suit within three years from the passing of the decree itself. As already stated above, immediately after the consent decree, the mutation was sanctioned in the presence of Mehar Singh when he accepted the decree as correct. He could file the suit within three years. The contention of counsel for the respondents is that it was after the death of Mehar Singh that the plaintiffs came to know that the decree was obtained collusively. This contention cannot be accepted. The plaintiffs are claiming right, title or interest through Mehar Singh and once limitation had started qua Mehar Singh with respect to challenging the decree, it could not stop with his death. The plaintiffs could even after the death of Mehar Singh file the suit within three years from the date of decree. A fresh period of three years is not available to the plaintiffs. The Suit was barred by time. The finding of the lower appellate Court in this respect is set aside and that of trial Court is restored.

For the reasons recorded above, both the appeals are allowed with costs. Judgment and decree of the lower appellate Court are set aside and the suit shall stand dismissed.