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1994 Supreme(P&H) 331
PUNJAB & HARYANA HIGH COURT
S.K.Jain, J.
Dhan Kaur @ Dano
Versus
Major Singh
R.S.A. No. 768 of 1984,
Decided On : MARCH 29, 1994
An admission made by a party in a pleading signed and verified by him may be used as evidence against him in other suits.
Headnote:
WILL - REVOCATION - VALIDITY - SUCCESSION - INHERITANCE - ESTOPPEL - ADMISSION IN PLEADINGS - EVIDENCE ACT, 1872, SECTION 17 - A will can be revoked by a subsequent will duly executed. The revocation of a will is a question of fact to be determined from the evidence on record. An admission made by a party in a pleading signed and verified by him may be used as evidence against him in other suits.
Fact of the Case:
Hazara Singh executed a will in favor of his daughters and one in favor of his son, Major Singh. After Hazara Singh's death, his daughters filed a suit for possession of 3/4th share of the land, claiming that the will in favor of Major Singh was revoked by the subsequent will in their favor. Major Singh contested the suit, relying on the registered will in his favor.
Finding of the Court:
The trial court found that the will in favor of the daughters was valid and that the will in favor of Major Singh was revoked. The first appellate court reversed the trial court's decision, holding that the will in favor of the daughters was not valid and that the will in favor of Major Singh was valid. The High Court restored the trial court's decision, holding that the will in favor of the daughters was valid and that the will in favor of Major Singh was revoked.
Issues: 1. Whether the will in favor of the daughters was valid? 2. Whether the will in favor of Major Singh was revoked? 3. Whether Major Singh was estopped from claiming ownership of the property?
Ratio Decidendi: 1. The High Court held that the will in favor of the daughters was valid based on the testimony of the attesting witnesses and the testator's son-in-law. The Court found that the testator had executed the will out of his free will and sound disposing mind and that there was no requirement for the will to be registered. 2. The High Court held that the will in favor of Major Singh was revoked by the subsequent will in favor of the daughters. The Court found that the testator had stated in the subsequent will that he wanted to revoke the previous will and that the subsequent will was his last testament. 3. The High Court held that Major Singh was estopped from claiming ownership of the property based on his admission in a pleading in a previous suit that he was in possession of the land as a tenant. The Court found that Major Singh could not be allowed to resile from this position.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court.
S.K.Jain, J.
1. 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.
2. 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.
3. The parties fought the litigation on the following issues :-
1. Whether Hazara Singh executed a valid will dated 16.3.1976 in favour of the plaintiffs and defendant No. 2? OPP
2. Whether Hazara Singh executed a valid will in favour of defendant No. 1 on 26.9.1974? OPD
3. Whether defendant No. 1 is estopped by his acts and conduct to rely upon the will dated 26.9.1974?
4. 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.
5. 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.
6. 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.
7. 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.
8. I have heard the learned counsel for the parties. The trial c
