Labh Singh and Others vs Gurmail Singh

Rajiv Narain Raina, J.—This is defendants'' second appeal. The three appellants are brothers. They were the contesting defendants and sons of Amar Singh son of Ganga Singh resident of village Khetla, Tehsil Sunam, District Sangrur, Punjab. Jangir Kaur and Labh Kaur are the widow and daughter of Amar Singh, and mother and sister of the three appellants who were arrayed as the proforma defendants.

A suit for declaration and permanent injunction was brought by Gurmail Singh, the 4th brother of the three appellants, contesting their exclusive claims to suit property. At the time of his demise on 1st May, 2005, Amar Singh was owner to the extent of half share in the suit property. Plaintiff-Gurmail Singh pleaded that after the death of Amar Singh, he, Jangir Kaur and Labh Kaur became owners in possession to the extent of 1/6th share each in the suit property. He pleaded that Amar Singh never executed a last will and testament allegedly on 1st June, 1999 and if he did, it was illegal, null and void and the result of fraud and misrepresentation practiced in collusion by his three brothers and, therefore, it confers no right, title or interest upon them. A mutation of inheritance was entered in the revenue record in terms of the will behind the back of the plaintiff. Mutations are legally bad and carry no weight. The plaintiff was excluded from inheritance in the testamentary will. This is the background in which the suit was instituted in the civil court at Sangrur.

The contesting defendants # 1 to 3 entered appearance on notice issued upon the suit. They filed their written statement raising various legal objections and denied on merits the facts asserted by the plaintiff. They asserted inter alia that a suit for declaration does not lie without claiming possession of immovable property. If possession is not sought, the suit is not maintainable. The averments in the plaint were stoutly refuted. They pleaded that the plaintiff had been residing separately from his father for a number of years. Their relations were strained and many a time quarrels took place between the father and the son even on petty matters. Plaintiff Gurmail Singh did not treat his father as his father. To the contrary, the defendants served and looked after Amar Singh in his old age and for the services rendered by them, the testator executed a will in favour of the three brothers and to the exclusion of the plaintiff. The will was registered in the office of Joint Sub-Registrar, Dirba. On the death of the father, they inherited his property and came into its possession and the last rites of their father were performed by the three brothers arrayed as defendants in the suit. The plaintiff did not file replication. The suit against defendants # 4 and 5 was dismissed under Order 9 Rule 2 of the CPC.

Parties went to trial on the following issues:--

"1. Whether plaintiff is entitled to relief of declaration as prayed for ? OPP

Whether plaintiff is entitled to relief of permanent injunction as claimed? OPP.

Whether plaintiff has no locus standi and cause of action to file the suit? OPD

Whether suit is not maintainable in the present form? OPD

Whether plaintiff is estopped by his own act and conduct from filing the present suit? OPD

Relief."

Gurmail Singh appeared as his own witness as PW1 and thereafter, closed his evidence by tendering documents Ex. P1 Jamabandi for the year 2001-02 and Ex. P2 copy of the mutation No. 4672. The defendants examined Labh Singh as DW1 who was one of the defendants. They examined Sukhwinder Singh as DW2 and Rajinder Kumar Singla as DW3 and thereafter, closed their evidence. The defendants produced Sewadar Records Branch, Takhat Shri Kesh Garg as DW2 who proved the record bearing serial No. 6065 at page 112 dated 5th May, 2005 Ex. D3 regarding death of Amar Singh to prove that the last rites of Amar Singh were performed by defendants # 1 to 3 where plaintiff was not present. DW3 Singla was a Deed Writer in Sub-Tehsil, Dirba who deposed that he was the scribe of the will dated 1st June, 1999 and an entry of which was made in his register which is Ex. D2 and the original will is Ex. D1. The defendants did not examine DWs Jagroop Singh and Baldev Singh Lamberdar, the attesting witnesses, who were given up as having been won over by the plaintiff.

Learned trail Judge saw that the plaintiff came to co-own the suit property by way of natural succession opening on the death of his father Amar Singh. He had challenged the registered will No. 42 dated 1st June, 1999 executed by testator Amar Singh in favour of defendants # 1 to 3. The attesting witnesses to the will, Jagroop Singh and Baldev Singh, were not produced in the witness box to prove the will on the plea that they had been won over by the plaintiff.

In order to prove the will and last testament of the testator, at least one attesting witness was required to be produced at the trial in terms of Section 68 of the Evidence Act, 1872 read with the provisions of Section 63 of the Succession Act, 1925. DW3 Rajinder Kumar Singla is not the attesting witness of the will as he is only the scribe. The attesting witnesses should have been produced in the witness box and if they did not support the version of the defendants while called to depose, then they could be declared hostile and be allowed to be cross-examined by the defendants so that the truth became known with respect to the alleged will. However, no effort was made by the defendants in this direction which was a precondition in proof of testamentary will.

Learned trial Judge did not except as true that the plaintiff was residing separate from Amar Singh and, therefore, he had disentitled himself to the estate of late Amar Singh. The Court noticed from the deposition of DW1 Labh Singh, the only one of the three brothers who was produced in the witness box, was himself residing separate from his father and his brothers. If testator-Amar Singh was legally entitled to disinherit the plaintiff, then he would have mentioned this fact in the will Ex. D1. There was no evidence on file to prove that the defendants were serving Amar Singh to the exclusion of the plaintiff. Resultantly, learned trial Judge found it more probable to hold that inheritance should take place by the order of natural succession in the absence of proof of will as per the procedure established by law. In these circumstances, the will propounded by the defendants was discarded as no faith could be placed on its veracity. Consequently, the mutation entry in favour of defendants # 1 to 3 was not sustainable and the revenue record was liable to be corrected to reflect that all the legal heirs and representatives of late Amar Singh would share property to the extent of 1/6th each and thus, were in joint possession. The plaintiff and defendants # 1 to 3 and proforma defendants # 4 and 5 had acquired the character of co-sharers and possession of each of them was joint possession of all the co-sharers. Each one owned every inch of the suit property. Thus, no question of dispossession of the plaintiff from joint possession arose and any alienation made by the defendants would be the alienation restricted to their share alone. Issue # 2 has been decided against the plaintiff and in favour of the defendants. On issues # 3 and 4, the learned trial Court found that clouds were cast on the rights of the plaintiff and he has the locus standi to sue and there is sufficient cause of action to file the present suit which was held maintainable. Since onus on issues # 3 and 4 was on the defendants, they did not score any brownie points on these two issues in their favour which went against them. The learned trial Judge recalled that on issue # 5, no evidence was led nor was pressed during the arguments and thus had to go against the defendants. The suit was partly decreed vide judgment and decree dated 29th July, 2011. It was declared that both the parties were owners and co-sharers to the extent of 1/6th share each of the suit property and they were entitled to joint possession whereas the relief of permanent injunction could not be granted to the plaintiff since possession remained legally joint.

Defeated defendants # 1 to 3 carried an appeal to the learned Additional District Judge, Sangrur. It was the contention in the appeal that no issue was framed with respect to the will. Therefore, the appellants were not put to notice or made aware that they were required to prove will in the manner provided by law, for which reason, they prayed that the case should be remanded for a decision afresh after framing an issue regarding the validity of the will.

To the contrary, the plaintiff respondent pleaded that issue # 1 as framed was an omnibus issue and when such issue was struck as to whether the plaintiff was entitled to the relief of declaration sought, then defendants # 1 to 3 were aware of the case set up against them and they knew full well what was expected from them to defend their title by propounding the testamentary will.

The main question before the Court of first appeal was whether the suit could be decreed without framing specifically an issue with respect to the will. It was the case of the plaintiff that he is entitled to inherit suit property by way of natural succession and, therefore, 1/6th share in the agricultural suit land measuring 22K-4M was his. In a claim based on natural succession, the exclusion therefrom is to be proved by the defendants as onus would be on them. Defendants # 1 to 3 took steps to produce a scribe but failed to produce the attesting witnesses on the ground that they have been won over by the plaintiff. If the attesting witnesses to the will were won over, then it was hardly of any consequence to the rights of the plaintiff whether they were produced or not because an adverse inference can reasonably be drawn against the defendants by virtue of not summoning them. The best evidence was not produced.

It is not a case where the defendants took no steps at all to prove the will. They made effort in that direction but gave up half way. It may be true that it is the duty of the Court to frame issues under Order 14 Rule 1 of the CPC as arise from the pleadings but it is also the duty of the complaining party to request the learned trial Court by an application that an issue is desirable to be framed as valuable rights perceived as vesting in them would flow from the testamentary will altering the succession. If the will was challenged by the plaintiff, the defendants put up no resistance. Section 68 of the Evidence Act informed them of the way the way a will can be proved and that at least one attesting witness is required to be produced in support of the will, otherwise, the will can never be taken to be proved in law. Defendants # 1 to 3 failed in their single defence to the suit that the will was legal and valid.

If the issue was not specifically framed, the issue was present in the minds of both the parties and on which they led their respective evidence. Merely because, the three opposing defendants had performed the last rites of their father, as evidenced from the record of Gurudwara Patalpuri Shri Kiratpur Sahib, was not sufficient to prove due execution of the will. Ignorance of law is no excuse but the law requires cannot be disregarded or wished away or by an alternative route.

The court of first appeal distinguished the decision of the Supreme Court in Divya Exports Vs. Shalimar Video Company and Others, AIR 2011 SC 3063 : (2012) 1 RCR(Civil) 154 : (2011) 9 SCALE 630 : (2011) AIRSCW 5276 and I think rightly so as is discussed later in the course of this judgment. Put briefly, in this case, on facts the validity of an agreement was in question. No specific issue was framed touching upon the question of validity of the agreement. The Court concluded that the parties did not get an effective opportunity to lead their evidence. In the absence of an issue framed, the learned trial Court had not even adverted to the question whether the agreement was valid or not.

The appeal court, in the present case, found the factual position to be entirely different. An omnibus issue as framed in issue # 1 was sufficient notice to both the parties of what was expected of them to prove. In any case, defendants # 1 to 3 cannot be absolved of their inaction in bringing to the notice of the learned trial Court that there was a fault in framing of the issues and they wish to claim a specific issue as to will of which the burden and onus would have been placed on them. Even if such a thing had taken place, even then, defendants # 1 to 3 gave up the attesting witnesses as having been won over. Therefore, the position at ground level was, issue or no issue, the attesting witnesses were reluctant to depose on behalf of the defendants and did not come forward because of which they were given up as won over. If they were won over, they remain won over forever. The statement of defendants # 1 to 3 that the attesting witnesses had turned hostile was not made during their examination would have to be read as no evidence then truth of the instrument, upon which, the succession rights of defendants # 1 to 3 rested was never revealed. The plaintiff had relied in the Court below on the decision of the Supreme Court in Swamy Atmananda and Others Vs. Sri Ramakrishna Tapovanam and Others, AIR 2005 SC 2392 : (2005) 2 ESC 272 : (2005) 4 JT 472 : (2005) 10 SCC 51 : (2005) 1 SCR 556 : (2005) AIRSCW 3179 : (2005) 3 Supreme 396 . In para. 39 of the report, the Supreme Court held that if the parties went to the trial knowing full well, the real issues involved and adduced evidence in such a case without establishing prejudice, it would not be open to party to raise the question of non-framing of a particular issue in appeal. It was not pleaded in the first appeal that prejudice was caused to defendants # 1 to 3 in their defense. Therefore, they cannot be heard on prejudice any longer.

I have heard learned counsel for the parties at sufficient length and would dismiss this appeal as not giving rise to any substantial question of law. When defendants # 1 to 3 adduced evidence good, bad or indifferent, then they were alive to the real issues involved against one and another and the case they had to meet. The real issue was with respect to the testamentary will propounded by the defendants as being the last wish of the testator to dispose of his property.

On the other hand, the learned counsel for the respondents relies on Kannan (dead) by Lrs. and Others Vs. V.S. Pandurangam (dead) by Lrs. and Others, AIR 2008 SC 951 : (2007) 13 JT 523 : (2007) 3 SCALE 511 : (2007) 12 SCR 591 , an authority of the Supreme Court holding that an omission to frame an issue as required under Order 14 Rule 1 of the CPC would not vitiate the trial in a suit where the parties went to trial knowing full the rival case and led evidence in support of the respective contentions and to refute the contentions of the other side. The Supreme Court relied on its earlier dictum in Nedunuri Kameswaramma Vs. Sampati Subba Rao, AIR 1963 SC 884 : (1963) 2 SCR 208 and Sayeda Akhtar Vs. Abdul Ahad, AIR 2003 SC 2985 : (2003) 6 JT 102 : (2003) 5 SCALE 429 : (2003) 7 SCC 52 : (2003) 1 SCR 612 Supp : (2003) AIRSCW 3680 : (2003) 5 Supreme 105 cases.

It is then urged by the learned counsel for the respondents that the signatures of the attesting witnesses on a document requiring attestation is a requirement of the Statue i.e. Section 63 of the Succession Act, 1925 and the same cannot be equated with that of the scribe. He would argue that mere production of the scribe was not proof of attestation of the will. The signatures of a scribe cannot be identified to be of the same status as that of the attesting witnesses. Section 68 of the Evidence Act, 1872 is to be read with Section 63 of the Succession Act, 1925 with respect to attestation of a will. For this legal proposition, learned counsel relies on N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, (2001) 6 AD 37 : AIR 2001 SC 2802 : (2001) 6 JT 219 : (2001) 5 SCALE 65 : (2001) 7 SCC 503 : (2001) AIRSCW 2907 : (2001) 5 Supreme 689 as also a Division Bench ruling of the Rajasthan High Court in Shantilal Vs. Mahendra Kumar and Others, (2002) 3 WLN 461 on the point that when no attesting witness was examined to prove the will, then execution cannot be said to have been proved.

In view of the weight of judicial opinion on the point there is no escape that there was failure on the part of defendants # 1 to 3 to prove their case of departure from natural succession by propounding the will which remained far from proof in accordance with law.

Nevertheless, some further discussion would be necessary with reference to the two judgments cited by Mr. Dinesh Kumar appearing for the appellants/defendants # 1 to 3 one of which is in the case of M/s. Divya Exports [supra]. To my mind, before we come to the essential facts of M/s. Divya Exports, it appears on a cumulative reading of the case law earlier cited that the true test of value of issue-wise findings in the appeal court judgment lies on the facts of a given case, like the present one to see whether departure was a fatal flaw and what prejudice was caused to complaining party. Supposing, issue # 1 as framed in this suit did not encompass the question of validity of the will set up in defence, then the defendants could possibly have had two options before the trial court. One was not to lead any evidence at all on the will which means that it did not even summon the attesting witnesses and also did not produce the scribe of the will and the trail continued adjudication and was finally decreed, then what effect would that have on their defence when the existence of the will was denied as authentic by the plaintiff. Could it then be argued by the losing defendants in the first appeal under Section 96 of the CPC that because no specific issue was framed, the party had no opportunity to bring in evidence or "sufficient evidence" as differentiated in M/s. Divya Exports case and, therefore, there has resulted a grave miscarriage of justice.

Defendants # 1 to 3 could have also argued that the plaintiff did not file replication to the written statement controverting the plea of a testamentary will ousting his rights in sharing property, then there would have been an additional argument possible to be raised in first appeal that the plaintiff took a plea of fraud and misrepresentation and of collusion in the making of the will and, therefore, it was for the plaintiff to prove by positive evidence element of fraud, misrepresentation and collusion and to urge that the onus was on the plaintiff in the absence of refutation by him of averments in the written statement but this submission may not have held water because, in any case, when the will was set up as defence in the suit, it had to be proved in accordance with law, which is not here the case. In such circumstances, no distinction, I think, could be drawn between ''evidence'' and ''sufficient evidence'' in the facts of this case as against the facts in M/s. Divya Exports because steps were taken in the direction and some evidence was brought in, in the deposition of the scribe as substitute evidence incidental to the will. There would then, I think, come into play principles of acquiescence, waiver by conduct and the rule of estoppel from being allowed to be raised as a plea that the impugned decision in first appeal was not rendered issue-wise. In any view of the matter, the primary and sole issue with respect to the validity of the will was not a complicated or complex one which required special treatment by the court a quo except to consider the mandatory principles involved in proof of will and testamentary succession.

It cannot also be discounted that the entire picture had to be drawn by defendants # 1 to 3 on whom the burden necessarily fell as to what was the effect of non-framing of a specific issue with respect to the will and in the absence of which, how were they prejudiced in defence when they knew full well that their success in defeating the suit depended on proof of the will. I would, therefore, not accede to the request of the appellant for remand of the case.

The fact situation in M/s. Divya Exports [supra] was that the trial Court had not framed specific issue touching upon the validity of an agreement Ex. D1 which was found material to the determination of the controversy and, therefore, parties did not get effective opportunities to lead evidence in support of their respective cases. In the absence of any issue on the point of friction, the learned trial Court did not advert to the question whether or not, agreement Ex. D1 was valid. The evidence available on the record was not at all sufficient for deciding that question and yet the learned Single Judge of the Andhra Pradesh High Court decided that question by drawing inferences from the statements made by witnesses examined by the parties with reference to the issues framed by the learned trial Court and returned an inactive finding on the validity of document Ex. D1. It was, in these circumstances that the Supreme Court held that the learned Single Judge was not justified in invoking Order 41 Rule 24 of the CPC. If there was a doubt in the mind of the learned Single Judge, he should have framed a specific issue himself with respect to the agreement and remanded the matter with a direction to frame such an issue and to decide the suit afresh. The omission on the part of the learned Single Judge to adopt that course resulted in manifest injustice to the appellant. That is how the appeal was allowed. So far as Order 41 Rule 24 is concerned it deals with the subject where evidence on record is sufficient only then the appellate court may determine the case finally. In the present case, there is absence of evidence to prove the will even though a feeble attempt was made by defendants # 1 to 3 to sustain the testament but the mandatory procedural rules in the Evidence Act, 1882 or in the Indian Succession Act, 1925 were not satisfied in proof of document required by law to be attested. Ss. 68 and 63 of the respective Acts read, one following the next as below:--

"68. Proof of execution of document required by law to be attested:

If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

"63. Execution of unprivileged wills.--Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:---

(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."

Section 57 of the Indian Succession Act, 1925 falls in Part VI of the Act and applies inter alia to Hindus. The case in M/s. Divya Exports is clearly distinguishable on facts and does not help the appellants in any manner.

The appellants have also placed reliance on a Single Bench decision of this Court in Gurcharan Singh and Another Vs. Gurdarshan Singh and Others, (2010) 159 PLR 524 . In this case, the plaintiffs had pleaded that wills 7th December, 1995 and 29th May, 1996 executed by one Rakha Ram are null and void. The contesting defendants # 1 to 3 did not dispute the execution of the will dated 22nd May, 1979 as set up by the plaintiffs but pleaded that one Rakha Ram also executed the aforesaid will in 1995 and 1996. It was alleged that vide last will and testament dated 29th May, 1996, the two previous wills dated 22nd May, 1979 and 7th December, 1995 were cancelled. It was, in these circumstances that the learned Single Judge held that the issue was not correctly framed and the onus on the issue was not correctly laid on the parties. An issue ought to have been framed and only then could the plaintiffs therein be called upon to depict that the wills were null and void. The case was, thus, held to be a proper one for remand.

However, the facts of this case are not of much complexity and to the contrary are simple in nature involving only the authenticity of a will alleged by the plaintiff to be not binding on his rights because it was a result of fraud, misrepresentation and collusion practiced by the defendants to defeat the rights of the plaintiff. Therefore, the principles laid down in the judgments in M/s. Divya Exports and Gurcharan Singh cases relied upon by the defendants to urge that the omnibus issue # 1 was insufficient for both the parties to lead their evidence, pro and contra, on the validity of the will in order to settle the dispute. I fail to see how these rulings can be of any help since both the cases are distinguishable on facts for the reason that defendants # 1 to 3 had availed their right and attempted to prove the will but failed miserably, to their peril, in their attempt. Defendants # 1 to 3 quite obviously knew the case against them from the very beginning for them now not to be heard to complain on a mere technicality that specific issue was not framed to return proper findings based on onus, wrongly not placed on them complaining that issue # 1 is general in nature and not dispute centric. It was open to the Defendants # 1 to 3 to have claimed splitting up of issue # 1, one regarding declaration, the other whether the will was valid and genuine but the did not do so. Despite that, they steamed ahead with the trial and locked horns with the plaintiff, their own brother, and led evidence, deficient as it turned out to be, when the attesting witnesses were given up as having turned hostile but not while appearing in the stand for the contesting defendants to have cross-examined them to elicit the truth. This is an incurable defect since a fresh trial cannot take place between the parties and the findings recorded are res judicata.

For the reasons given above, I do not find any substantial question of law arising in this appeal worth consideration in the second appeal side of this Court under Section 100 of the Code of Civil Procedure. The concurrent findings of fact recorded by both the Courts below have been arrived at after appreciating the pleadings and the oral and documentary evidence adduced by the parties on the file which findings are not open to correction by this Court only to subscribe to a different view by re-appreciating the evidence on record which is impermissible in the present jurisdiction. There is no apparent error or infirmity in the judgment appealed from. Hence, I would dismiss the appeal with costs. It is ordered accordingly.