Back
2011 Supreme(P&H) 1874
2012(1) LAW HERALD (P&H) 946
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Ram Chand Gupta
RSA No.1013 of 1994 (O&M)
Charan Singh & Anr.
v.
Amar Singh & Ors.
{Decided on 31/10/2011}
For the Appellants:Mr. M.L. Sarin, Sr. Advocate with Mr. Nitin Sarin, Advocate.
For the Respondent nos.1 and 2:Mr. J.K. Sibal, Sr. Advocate with Mr. Puneet Jindal, Advocate.
Headnote:(A) Civil Procedure Code, 1908, O.41, R.27 r/w S.151--Additional Evidence at appellant stage--Appellants have no right to adduce evidence at belated stage--Litigation is pending since year 1986--No application for adducing additional evidence filed before learned trial Court or before learned first appellate Court--Application was not filed alongwith appeal before High Court in year 1994--Application was filed about 12 years of filing of appeal before High Court in year 2006--Case is not covered under Clause (i) of Order 41 Rule 27--Also, it cannot be said that evidence now sought to be produced was not within knowledge of appellants-defendants and same could not be adduced by them notwithstanding the exercise of due diligence--Also, it cannot be said that documents now sought to be produced are such which are required by court to pronounce judgment or for any other substantial cause--Hence, in view of facts application for adducing additional evidence dismissed. (Page 12 & 13)
(B) Civil Procedure Code, 1908, O.41, R.27--Additional Evidence at appellate stage--To be allowed when
(i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. (Para 21)
(C) Succession Act, 1925, S.63--Will--Execution of--Legal requirements for proving execution of Will summarized. (Para 35)
1. A Will like any other document is to be proved in terms of provisions of Indian Succession Act and the Indian Evidence Act;
2. Onus of proving the Will is on the propounder;
3. Testamentary capability of the propounder must also be established;
4. The execution of the Will by the testator has to be proved;
5. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will;
6. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time, he was in sound disposing state of mind and understood the nature and effect of disposition;
7. It is also required to be established that he has signed the Will in the presence of two witnesses, who attested his signatures in his presence or in the presence of each other;
8. When there exist suspicious circumstances, the onus would be on the propounder to explain the same to the satisfaction of the court before it can be expected as genuine.
9. The Court must satisfy its conscience before its genuineness is accepted by taking a rationale approach.
(D) Succession Act, 1925, S.63--Will--Execution of--Suspicious circumstances--Sufficient reasons given by learned Courts below that there are various suspicious circumstances surrounding due execution of Will--Appellants-defendants as a propounder of Will have failed to remove same to the satisfaction of the Court--Courts below committed no illegality in discarding Will. (Para 30 & 31)
(E) Civil Procedure Code, 1908, O.23, R.3--Consent Decree--Setting aside of--Rights in the immovable property valuing more than Rs.100/- created for first time in favour of appellants-defendants vide impugned decrees and hence, requires compulsory registration--However, as the same has not been got registered, hence, it cannot be said that any rights in the property in dispute has been validly created in favour of appellants-defendants--Registration Act, 1908, S.17. (Para 19)
Mr. Ram Chand Gupta, J.: - Facts giving rise to the present regular second appeal are as under:-
2. Dispute is regarding inheritance of estate of Hazara Singh, husband of respondent -plaintiff Smt. Sodhan Kaur (since deceased and represented by her legal representatives, i.e., present respondents no.1 and 2). The property in dispute is described in the heading of the plaint and the same is situated in Village Bhalowal, Tehsil Phillaur, as per jamabandi for the year 1982-83, in village Fatehpur, Tehsil Phillaur, as per jamabandi for the year 1983-84, and in village Fatepur, Tehsil Phillaur, as per jamabandi for the year 1983-84 and described in the heading of the plaint as (a), (b) and (c) respectively.
3. Admitted facts are that Hazara Singh died issueless on 27.3.1986 leaving behind his wife, Smt. Sodhan Kaur as the only legal heir to inherit his estate. Plaintiff has filed this suit for declaration that she is entitled to inherit the property left by deceased Hazara Singh with consequential relief of possession. She has challenged judgments and decrees dated 10.10.1984 and 29.5.1984 passed by the Court of then Sub Judge Ist Class, Phillaur against her husband Hazara Singh and in favour of Charan Singh and Bachan Singh, the present appellants-defendants on the ground that the same are illegal, null, void, without consideration and are a result of fraud, misrepresentation and coercion. Plea has been taken that Hazara Singh was having no knowledge about the said decrees passed against him and that a fraud was committed upon him. Hazara Singh during his lifetime had given statement in another case titled as Charan Singh and another v. Surjan Singh and others, in which he denied having suffered any such decrees in favour of appellants-defendants.
4. Present appellants-defendants contested the suit on the ground that decrees dated 10.10.1984 and 29.5.1984 were voluntarily and legally suffered by Hazara Singh in their favour and that the decrees are legal and binding upon the plaintiff. However the fact that respondent-plaintiff is wife of Hazara Singh and that Hazara Singh died issueless on 27.3.1986 is not denied. Specific plea has been taken that Hazara Singh appeared in those proceedings alongwith his counsel and made statement in both the aforementioned suits admitting the case of present appellants-defendants and hence, it is denied that any fraud was committed upon Hazara Singh by the appellants -defendants in getting the said decrees passed in their favour.
5. Plea has also been taken that Hazara Singh during his lifetime also executed a Will dated 3.8.1983 regarding his entire property in favour of appellants-defendants and the said Will was also got registered.
6. In replication, respondent-plaintiff denied execution and validity of any such alleged Will by Hazara Singh in favour of appellantsdefendants.
7. From the pleadings of the parties, the following issues were settled by learned trial Court:-
“1. Whether the decrees dated 10.10.1984 and 29.5.1984 passed in favour of defendants no.1 and 2 in respect of the disputed land are illegal and void? If so, its effect? OPP
2. Whether the plaintiff is entitled to the possession of the suit land as owner? OPP
3. Whether the deceased Hazara Singh executed a valid Will dated 3.8.1983 in favour of the defendants no.1 and 2. If so, its effect? OPD
4. Whether the suit as framed is not maintainable? OPD
5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD
6. Whether the suit is barred by time? OPD
7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
8. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP
9. Whether the plaintiff has no locus standi to file the present suit? OPD
10. Relief.”
8. Parties adduced evidence in support of their respective contentions before learned trial Court. Learned trial Court decided issue no.1 in favour of respondent-plaintiff by holding th
