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2016 Supreme(P&H) 2294
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
SURINDER GUPTA, J.
Dalip Singh and others - Appellants
Versus
Gurudwara Shaheed Ganj and others – Respondents
Regular Second Appeal No.2304 of 1986 (O&M)
Decided on : 21-11-2016
Advocate Appeared:
For the Appellant :Ms. Samya Singh, Advocate
For the Respondent:Mr. R.S. Rai, Senior Advocate with Mr. Mohinder Nain, Advocate
The main legal point established in the judgment is the admissibility of secondary evidence under Section 63 of the Indian Succession Act and Section 69 of the Indian Evidence Act, and the reliance on expert testimony to prove the genuineness of a will.
Headnote:
WILL - Property Ownership - Indian Evidence Act, Section 69 - Indian Succession Act, Section 63 - Gift Deed - Tamlik Deed - Thumb Impressions - Secondary Evidence - Expert Testimony - Genuineness of Will
Fact of the Case:
The appeal concerns the ownership of a disputed land, with the plaintiff Gurudwara claiming ownership based on a will executed by Gurdial Singh in 1975. The defendants, who are the legal heirs of Gurdial Singh, contested the validity of the will, emphasizing the non-production of the original will and discrepancies in thumb impressions.
Finding of the Court:
The Court found that the will was duly proved through secondary evidence and expert testimony, and the findings of the lower courts were upheld. The Court rejected the argument that the original will was not proved to have been lost, emphasizing that the loss of the document was sufficiently established through the affidavit of the person in custody of the document. The Court also dismissed the expert testimony of the defendants, concluding that the original thumb impression on the will had been superimposed.
Issues: The main issues revolved around the genuineness of the will, the validity of secondary evidence, and the credibility of expert testimony regarding thumb impressions.
Ratio Decidendi: The Court's decision was based on the sufficiency of evidence to establish the loss of the original will, the admissibility of secondary evidence, and the reliability of expert testimony in proving the genuineness of the will.
Final Decision: The appeal was dismissed, upholding the ownership of the disputed land by the plaintiff Gurudwara based on the valid will executed by Gurdial Singh.
This is appeal against the concurrent judgments of the Courts below partly decreeing the suit filed by Gurudwara Shaheed Ganj Baba Khadag Singh and Nishan Singh, Patti Akal Mehna for declaration to the effect that plaintiff Gurudwara is owner in possession of the suit land except the land comprised in khasra No.37/15(8-0) 16(8-0) and 17(8-0) which had already been gifted by Gurdial Singh in favour of his wife vide gift deed dated 29.11.1971. The suit land was earlier owned by Gurdial Singh, predecessor-in-interest of appellants, who as per plaintiff, bequeathed the same to Gurudwara Sahib vide Will dated 03.09.1975. The decree passed by then Sub Judge 1st Class, Moga, reads as follows:-
“16. As held in issue No.1 above, Gurdial Singh deceased executed a valid will dated 3.9.1975 (copy Ex.P-1) in favour of the plaintiff Gurudwara. The wishes of the testator have to be given due weight by the courts and the plaintiff Gurudwara is entitled to succeed to the estate of Gurdial Singh deceased on the basis of that will. However, it may here be stated that the suit filed by the plaintiff inter alia includes land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) which had already been gifted away by Gurdial Singh deceased in favour of his widow Mst. Narain Kaur vide Tamlik deed dated 29.11.1971 Ex.D1/A and the plaintiff Gurudwara cannot claim any right or title/interest in that land. The suit of the plaintiff Gurudwara regarding the remaining land must however succeed. As discussed above, under the will (copy Ex.P-1), Mst. Narain Kaur defendant No.1 Mukhtiar Singh defendant No.12, Rajinder Kaur defendant No.13 and Mst. Sham Kaur since deceased were entitled to an annuity of Rs.1000/- each in their life time. Mst. Sham Kaur has since died. However, Mst. Narain Kaur defendant No.1, Mukhtiar Singh defendant No.12 and Rajinder Kaur defendant No.13 are entitled to an annuity or Rs.1000/- each from the plaintiff Gurudwara for the whole of their lives and the same is to be a charge on the disputed land. Mutation of the estate of Gurdial Singh appeared to have been sanctioned in favour of the defendants, but the same does not in any way affect the right or title of the plaintiff Gurudwara in the disputed land. Kapur Singh PW-3 stated that the plaintiff Gurudwara is in possession of the disputed land through its tenants. Even otherwise, the plaintiff Gurudwara is entitled to possession of the disputed land on the basis of title. In these circumstances, the suit of the plaintiff Gurudwara must succeed regarding the disputed land except the disputed land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) already gifted in favour of Narain Kaur defendant No.1 vide Tamlik deed Ex.D1/A, I accordingly pass a decree for a declaration to the effect that the plaintiff Gurudwara is owner in possession of the disputed land except the land comprised in khasra No.37/15(8-0), 16(8-0) and 17(8-0) in village Mehna and is also entitled to possession of the same as an alternative relief. It is further ordered that in terms of the will (copy Ex.P-1) Narain Kaur defendant No.1, Mukhtiar Singh defendant No.12 and Rajinder Kaur defendant No.13 will be entitled to an annuity of Rs.1000/- each from the plaintiff Gurudwara for the whole of their lives and the amount of annuity payable to them would be a charge on the disputed land. Further that in terms of the will, the managing committee of the plaintiff Gurudwara would utilise the usufruct of the disputed land in connection with the affairs of the plaintiff Gurudwara but would not be competent to mortgage, sell or gift away the disputed land to some other person.”
2. Defendant No.1, wife of Gurdial Singh appears to have felt satisfied with the decree and did not file any appeal but the other defendants who are the sons and daughters of pre-deceased daughters of Gurdial Singh filed appeal before the first Appellate Court which was dismissed by Additional District Judge, Faridkot.
3. Learned cou
