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2018 Supreme(P&H) 2782
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No.1184 of 2016 (O&M)
Pratibha & Anr v. Nandi Devi & Ors
{Decided on 27/11/2018}
Mr. Arun Jain, Sr. Advocate with Mr. Abhishek Dhull, Advocate for the respondents.
Primary Evidence—If the two original copies of the contract are prepared and signed by the parties, each copy would be primary evidence .
Will—Suspicious Circumstances—Court is required to see whether the foundation of the suspicious circumstances has been laid in the pleading followed by evidence and the suit alleges suspicious circumstances are substantive and not based upon conjectures and surmises
Headnote:(A) Succession Act, 1963, S.63—Will—Primary Evidence—A registered Will kept in the office of the Sub-Registrar bearing signatures and photographs of the testator and attesting witnesses duly signed by the Sub-Registrar is primary evidence—Evidence Act, 1872, S.62. (Para 16)
(B) Evidence Act, 1872, S.62—Primary Evidence—Counter part of the document which has been executed by all the parties shall be primary evidence. (Para 16)
(C) Evidence Act, 1872, S.62—Primary Evidence—If the two original copies of the contract are prepared and signed by the parties, each copy would be a primary evidence and one copy cannot be said to be primary and second secondary because both the copies of the contract are complete in themselves and therefore, both the copies are primary evidence. (Para 16)
(D) Succession Act, 1963, S.63—Will—Attesting Witnesses—Genuineness of the registered Will cannot be left to the mercy and support from the attesting witnesses—Once the execution of the Will is proved, slight deviation by the attesting witness in the cross-examination would not result in Court ignoring the Will. (Para 16)
(E) Succession Act, 1963, S.63—Will—Suspicious Circumstances—Court is required to see whether the foundation of the suspicious circumstances has been laid in the pleading followed by evidence and the suit alleges suspicious circumstances are substantive and not based upon conjectures and surmises. (Para 16)
Mr. Anil Kshetarpal, J. (Oral) - Plaintiffs-appellants are in the regular second appeal against the judgments passed by the Courts below dismissing their suit for declaration with consequential relief of permanent injunction.
2. In the considered opinion of this Court, the following substantial questions of law arise for consideration:-
1. Whether a registered Will kept in the office of the SubRegistrar bearing signatures and photographs of the testator and attesting witnesses duly signed by the Sub-Registrar is primary or secondary evidence?
2. Whether succession under the registered Will can be permitted to be hijacked/defeated at the hands of attesting witnesses.
3. Whether before ignoring a registered Will on the ground of alleged suspicious circumstances, the Court is required to see whether the foundation of the aforesaid suspicious circumstances has been laid in the pleading followed by evidence and the suit alleges suspicious circumstances are substantive and not based upon conjectures and surmises?
3. Dispute in the present case is with respect of estate of Karam Singh Chauhan who died on 27.09.2002. He left behind a widow, one sonSuresh and four daughters namely Neena, Sunita, Anito and Kanta. Suresh married after the death of his father with plaintiff-appellant No.1-Pratibha on 16.09.2006 and a daughter Reshu was born to the married couple on 10.10.2007. Suresh died on 06.06.2008. Widow of Suresh and her minor daughter from Suresh are the plaintiffs-appellants claiming that Karam Singh Chauhan had executed a registered testament in favour of his sonSuresh on 16.08.2002 and therefore, she is owner of the property detailed in Para 5(i) (ii) and (iii). The plaintiff claims that she previously filed a suit for injunction claiming 1/6th share but later on she came to know about the Will and hence, she withdrew the suit with permission to file fresh one on 05.09.2008 and the present suit was filed on 09.09.2008. It has further been pleaded that the Will might be in the possession of her mother-in-law i.e. defendant No.1. She also challenged mutation of the property on the basis of natural succession ignoring the Will.
4. Defendants contested the suit and denied existence of Will dated 16.08.2002.
5. After framing of the issues, the parties were permitted to lead evidence. She appeared as her own witness and also examined official from the office of the Sub-Registrar who proved certified copy of the registered testament dated 16.08.2002. Official specifically stated that she has brought the summoned record. She also examined Bhopal Singh, attesting witness of the Will who proved the Will. It will be noted that after Bhopal Singh had submitted his affidavit in examination in chief on 21.12.2010, the cross-examination was deferred on the request of learned counsel for the defendant. Thereafter, Bhopal Singh started avoiding appearance in the Court for cross-examination and he appeared for cross-examination after a period of almost two years and made an attempt to create a doubt about the correctness of the Will. His evidence would be discussed in the later part of the judgment.
6. The Will is attested by two attesting witness. As per requirement of Section 63 of the Succession Act, 1925 namely Bhopal Singh and Satish Kumar but Satish Kumar has not appeared in evidence.
7. Both the Courts have dismissed the suit filed by the plaintiffs mainly on the ground that the original Will has not been produced and the attesting witness has stated in cross-examination that Karam Singh Chauhan, the testator wanted to give the property to his son and daughters. The Courts have also taken note of the fact that there is small contradiction in the statement of the plaintiff with regard to the fact as to when she came to know of the registered Will as she filed a suit for injunction which was withdrawn with permission to file fresh one claiming only 1/6th share in the property.
8. During the pendency of the first appeal, the applicat
