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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Sanjiv Kumar - Appellant
Versus
Siri Chand and Others - Respondents
RSA No.496 of 2009 (O&M), RSA No.365 of 2009 (O&M)
Decided On : 04-12-2018
For the Appellant :Mr. Jai Vir Yadav, Advocate, Mr. Brijender Kaushik, Advocate
For the Respondent:Mr. Ajay Jain, Advocate, Mr. R.A. Sheoran, Advocate
The main legal point established in the judgment is the preference of documentary evidence over oral evidence, the rights of a defendant in a property dispute, and the permissibility of proving a Will by leading other evidence when an attesting witness denies attestation.
Headnote:
DOCUMENTARY EVIDENCE - PROPERTY DISPUTE - The Hindu Succession Act, 1956, Section 68, 71 - The court preferred documentary evidence over oral evidence. The court held that a defendant is not required to file a counter claim to be declared an owner by natural succession. The judgment passed by the first appellate court without analyzing/discussing the report submitted by the learned trial court was not sustained. An attesting witness of a registered testament can be permitted to defeat the rights of the beneficiary by denying attestation of the registered testament. A Will can be proved by leading other evidence when an attesting witness denies attestation.
Fact of the Case:
The suit involved a property dispute between the plaintiff and defendant regarding the inheritance of property left behind by late Shri Devi Sahai. The plaintiff claimed to be the sole successor of the property, challenging the validity of a registered testament in favor of the defendant, Smt. Budhi Devi, alleged daughter of Sh. Devi Sahai.
Finding of the Court:
The court found that the plaintiff's claim was based on incorrect facts and that overwhelming documentary evidence proved that the defendant, Smt. Budhi Devi, was the daughter of late Shri Devi Sahai and the rightful inheritor of the property. The court also held that the judgment passed by the first appellate court was erroneous and committed several errors in its analysis of the evidence.
Issues: The substantial questions of law included the preference of documentary evidence over oral evidence, the requirement of a defendant to file a counter claim for natural succession, the validity of a judgment passed without analyzing the report submitted by the trial court, and the permissibility of an attesting witness to defeat the rights of the beneficiary by denying attestation of a registered testament.
Ratio Decidendi: The court emphasized the importance of documentary evidence, clarified the rights of a defendant in a property dispute, and highlighted the necessity for a judgment to consider all relevant reports and evidence submitted by the trial court. The court also established the permissibility of proving a Will by leading other evidence when an attesting witness denies attestation.
Final Decision: The court allowed the appeal filed by Smt. Budhi Devi and dismissed the appeal filed by Sultan, concluding that Smt. Budhi Devi was the daughter of late Shri Devi Sahai and the rightful inheritor of the property.
ANIL KSHETARPAL, J.
1. By this judgment, RSA Nos.365 and 496 of 2009 shall stand disposed of, as both these appeals are arising from one suit and two first appeals disposed of by the learned first appellate court by a common judgment. One appeal has been filed by defendant No.1 through her legal heirs and second appeal has been filed by Sultan-defendant No.3.
2. In the considered opinion of this Court, following substantial questions of law arise for determination:-
(i) Whether documentary evidence is required to be preferred in comparison to the oral evidence while deciding the litigation between the parties? RSA No.496 of 2009 (O&M) and another 2
(ii) Whether a defendant is required to file counter claim before he can be declared owner of the share which comes to him as per the provisions of The Hindu Succession Act, 1956?
(iii) Whether a judgment passed by the first appellate court without analysing/discussing the report submitted by the learned trial court which was called by the first appellate court on additional issues having been framed, can be sustained?
(iv) Whether an attesting witness of a registered testament can be permitted to defeat the rights of the beneficiary by denying attestation of the registered testament particularly when the testament has been proved by examining the second attesting witness, Scribe as well as registering authority?
(v) Whether a Will can be proved by leading other evidence when one of the attesting witness denies attestation?
3. Although normally in second appeal the court is not required to re-appreciate the entire evidence, however, this Court finds that the judgments passed by the courts below are result of total non-appreciation of documentary evidence, hence, while exercising the powers of second appeal, the court has decided to reappreciate the evidence.
Two basic issues are required to be decided:-
(a) Whether defendant No.1-Late Smt. Budhi Devi was the daughter of Devi Sahai whose property is in dispute?
(b) Whether Devi Sahai executed a valid registered testament bequeathing his property in favour of his only daughter Budhi Devi?
FACTS
4. Late Shri Data Ram filed the present suit on 25.9.1986, claiming that he is sole successor of the property left behind by late Shri Devi Sahai, who was alleged to have died unmarried and issue less on 10.8.1986. The plaintiff claims that his father and father of Late Shri Devi Sahai were brothers and, therefore, he is entitled to the property. The plaintiff has also challenged validity of the alleged registered testament, executed by late Shri Devi Sahai in favour of Smt.Budhi Devi, alleged daughter of Sh. Devi Sahai. According to the case set up by the plaintiff, Smt.Budhi Devi is daughter of Chunna Ram and Smt.Sarjali. Late Shri Chunna Ram was son of Mamraj, who was brother of Dhokal (father of Devi Sahai). Hence, it is claimed that she has no right in the property of late Shri Devi Sahai. Although, there is some dispute about interse relationship, however, folowing pedigree table to the extent it is undisputed would facilitate to understand the controversy involved:-
Godha
Mam Raj
Dhokal
Dalu Ram
Chunna Ram
Devi Sahai
Sarjali(wife)
Data Ram (Plaintiff)
Nathu Ram (died unmarried)
Shyam Lal
Sultan (Defendant No.3)
Hans Kaur (daughter)
Sarbati (daughter)
Malli (daughter)
(Plaintiff Data Ram claims that Smt.Budhi Devi-the defendant appellant is the daughter of Chunna Ram and Devi Sahai died unmarried, whereas Smt. Budhi Devi claims that she is the only daughter of Devi Sahai and in fact Devi Sahai married twice.)
5. On the other hand, the suit was contested by Smt.Budhi Devi, wherein she claimed to be daughter of Devi Sahai. It was claimed that Late Shri Devi Sahai had married twice. It was pleaded that on the death of Mamraj, his widow had entered into a Kar
