R.L Anand, J.:— Unsuccessful plaintiffs Harnek Singh and Bhajan Singh sons of Santokh Singh have filed the present appeal and it has been directed against the judgment and decree dated 7.10.1999 passed by Addl. District Judge, Ludhiana who affirmed the judgment and decree dated 3.4.1997 passed by Civil Judge (Junior Division), Samrala who dismissed the suit of the plaintiff-appellants for declaration and joint possession as prayed for.
2. The brief facts of the case are that appellants filed a suit for declaration to the effect that they and defendants No. 1 and 2 are absolute owners in equal shares i.e ¼th share each of the land fully described in the head-note of the plaint and that a decree for joint possession of the said land be passed in their favour and defendant No. 1 and 2. The case set up by the plaintiffs in the trial Court was that they and defendants No. 1 and 2 are Jat Sikh and governed by Hindu Law. The suit property is a coparcenary property of the plaintiffs and defendants No. 1 and 2 and Santokh Singh, father of the plaintiffs, was acting as Karta of the family. He died on 24.5.1990 and after his death plaintiffs and defendants No. 1 and 2 have become the absolute owners in equal shares of the suit property. The mutation bearing No. 3921 of the suit property in favour of defendants No. 1, 3 and 4 i.e Sukhdev Singh, Kuldip Singh and Ravinder Singh alias Rajinder Singh respectively is illegal, null and void as the property has been wrongly mutated in their names on the basis of registered will dated 8.5.1990 According to the plaintiff-appellants, defendants No. 3 and 4 are minors and they have been impleaded through their father Kewal Singh, defendant No. 2, are who has no adverse interest against them.
3. Notice of the suit was given fo the defendants. The suit was contested by defendants No. 1 to 4 only. According to them, the suit was not maintainable. The plaintiffs have not taken the permission from the Court to appoint Kewal Singh as guardian of the minors. The suit property is not a coparcenary property in the hands of Santokh Singh. The plaintiffs were separate in kitchen, mess and residence and the mutation has been correctly sanctioned on the basis of registered will dated 8.5.1980 which was executed in favour of defendants No. 3 and 4 by Santosh Singh. With this short defence the said defendants made a prayer for the dismissal of the suit.
4. The plaintiffs filed a re-joinder to the written statement of the defendants in which they reiterated their averments made in the plaint by denying those of the written statement and from the pleadings of the parties following issues were framed:—
1. Whether plaintiffs constitute a Joint Hindu Family coparcenary body? OPP
2. Whether the suit property is joint Hindu Family coparcenary property? OPP
3. Whether the plaintiffs are entitled to the declaration? OPP
4. Whether the plaintiffs are entitled to Joint possession of the suit land? OPP
5. Whether the suit is not maintainable in the present form? OPP
6. Whether the deceased Santokh Singh has executed legal and valid will dated 8.5.90 in favour of his sons, if so, its effect? OPD
7. Relief.”
5. The parties led oral and documentary evidence in support of their respective cases and on conclusion of the proceedings the trial Court decided issues No. 1 to 4 against the plaintiffs and in favour of the defendants. Issue No. 5 was decided against the defendants. Issue No. 6 was decided in favour of the defendants. Resultantly, vide judgment and decree dated 3.4.1997 the learned Civil Judge (Jr. Division), Samrala dismissed the suit of the plaintiffs.
6. Not satisfied with the judgment and decree of the trial Court the plaintiffs/appellants filed first appeal before the Addl. District Judge, Ludhiana, who vide impugned judgment and decree dated 7.10.1999 dismissed the same.
7. The plaintiffs/appellants are not still satisfied with the judgment and decrees of the Courts below, hence the present appeal.
8. I have heard Mr. Ashok Singla, Advocate on behalf of the appellants and with his assistance have gone through the records of this case,
9. During the course of submissions the learned counsel for the appellants has also invited my attention to the photocopy of the registered will dated 8.5.1990 executed by Santokh Singh. Before I deal with the submissions raised by the learned counsel for the appellants, who addressed arguments on issues No. 2 and 6, it will be appropriate for me to first reproduce para 8 of the judgment of the trial Court which decided issue No. 2 against the plaintiffs.
“8. Issue No. 2
The burden of proving this issue is upon the plaintiffs who placed the excerpt Ex. P1, summary Ex. P2, jamabandi Ex. P3, mutation No. 3921 Ex. P4, mutation No. 3935 Ex. P5, mutation 3972 Ex. P6, Shajra Ex. P7, jamabandi for the year 1986-1987 Ex. P8, mutation No. 3629 Ex. P9, mutation No. 3646 Ex. P10, mutation No. 3752 Ex. P11 jamabandi for the year 1981-1982 Ex. P12 and has also examined PW1 Ram Singh, Kanungo for the Page: 413same. On the same hand, the plaintiffs have also placed upon record the order dated 30.3.83 passed in the civil suit No. 282 of 23.5.83 which is the suit for declaration filed by Santokh Singh, Amar Singh, Charan Singh, Hazura Singh against Waryam Singh in order to establish that the deceased Santokh Singh received the suit property from Waryam Singh his father. The certified copy of the said plaint is Ex. PA and the copy of the order is Ex. PB. After having perused the above said documents, I am of the opinion that the property in suit is not ancestral in nature since the suit property has devolved upon Santokh Singh by way of decree Ex. PA and not by survivorship. Therefore, the survivorship has been disturbed. According to para 223 of Hindu Law, the essential features of ancestral property according to Mitakshara Law is as under:—
“Sons, grandsons and great grandsons of a person who inherits it, acquire the interest in it by birth.”
Therefore, the sons, grandsons, and great grandsons who inherit it receive it as ancestral property but in the instant case Waryam Singh has not received the suit property by inheritance but has received it by way of decree. Therefore, in view of the above, the survivorship has been defeated and thus the suit property is no more joint Hindu Family coparcenary property. Accordingly, in view of my above said discussion and also upon findings of issue No. 1, this issue No. 2 is decided against the plaintiffs and in favour of the defendants.”
Similarly it will be appropriate for me to reproduce paras 5, 7 and 8 of the judgment of the first Appellate Court vide which issues No. 2 and 6 have been disposed of.
“5. I have heard Ld. counsel for the parties and have gone through the file of this case. Firstly, this Court proceeds to determine whether the suit property has been proved to be coparcenary and ancestral property in the hands of the plaintiffs or not. Issue No. 2 has been framed to this effect by the trial Court, onus of which has been laid upon the plaintiffs. The trial Court discussed this issue and returned the finding that plaintiffs have failed to prove the coparcenary and ancestral nature of the suit property. The finding recorded by the trial Court under issue No. 2 has been seriously challenged in the appeal before this court by the Ld. counsel for the appellants. It was submitted before this court by Ld. counsel for the appellants that the trial Court has committed a grave illegality in coming to the conclusion that the suit property has not been proved to bejoint Hindu Family coparcenary and ancestral property of the parties. Strong reliance has been placed by the plaintiffs/appellants on the statements of PW-1. Ram Singh, Special Kanungo who has proved excerpt Ex. P-1, summary Ex. P.2, jamabandi Ex. P.3, mutation No. 3921 Ex. P4, mutation No. 3935 Ex. P.5, mutation No. 3972 Ex. P.6, Shjra Ex. P.7, jamabandi Ex. P-8, mutation No. 3629. Ex. P.9, mutation No. 3646 Ex. P.10, mutation No. 3752 Ex. P.11, jamabandi for the year 1981-1982 Ex. P.12 The plaintiffs have also relied upon statement of PW-2 Bhajan Singh, who has stated that the suit property is ancestral property of the plaintiffs. This is the only evidence brought on record by the plaintiffs besides the certified copy of the plaint Ex. P.A It was submitted before this Court by Ld. counsel for the appellants that Santokh Singh was admittedly father of the plaintiffs/appellants and defendants No. 1 and 2 and he was grandfather of defendants No. 3 and 4. It was maintained before this Court by Ld. counsel for the appellants/plaintiffs that Santokh Singh got the suit properly from his father Waryam Singh on the basis of some family settlement. That Santokh Singh admitted the suit property to be coparcenary and ancestral in the suit filed by him and reference was made to certified copy of plaint Ex. P.A of civil suit No. 282 of 23-5-83 titled Santokh Singh etc. v. Waryam Singh on the record. Reference was also made by the appellant to copy of judgment Ex. P.B and copy of decree sheet/Ex. P.C on the record. On the other hand, Ld. counsel for the respondents-defendants has contended before this Court that appellants/plaintiffs have failed to prove the ancestral and coparcenary nature of the suit property. The trial Court recorded this findings under issue No. 2 against the plaintiffs by holding that suit property has not been proved to be ancestral and coparcenary property. Ex. P.11 is index of excerpt. Ex. P.2 is excerpt based on the revenue record. Ex. P. 3 is copy of jamabandi for the year 1991-1992. It has recorded defendants No. 1, 3 and 4 as owners of the property. Ex. P.4 is mutation No. 3921 to the effect that plaintiffs Bhajan Singh Harnek Singh and defendants Sukhdev Singh and defendants No. 3 and 4 Kuldeep Singh and Ravinder Singh succeeded to the estate of Santosh Singh on the basis of registered will dated 8.5.90 Ex. P.5 mutation No. 3935 relied upon in this excerpt is to the effect that Kesar Singh son of Amar Singh was sold some properjty by Jaswant Singh, Pai Singh sons of Charan Singh. This has got no bearing on the subject-matter in dispute. Similarly, mutation No. 3972 Ex. P.6 has also got no relevance with the controversy in this case. Ex. P.8 is jamabandi for the year 1986-1987 of village Sihala recording Santokh Singh, Bhagat Singh and Charan Singh as joint owners of the suit property. Ex. P.9 is mutation No. 3629 whereby Santokh Singh, Amar Singh, Charan Singh and Hazura Singh became owners of the suit property on the basis of decree of civil Court dated 30.3.84 It was suffered in their favour by Waryam Singh their father. Ex. P.10 is mutation No. 3646 whereby Amar Singh mortgaged the property in favour of Pritam Kaur. etc. and it has Page: 414got no relevance with the controversy in dispute. Ex. P.11 is mutation No. 3751 showing that Santokh Singh, Amar Singh, Charan Singh and Hazura Singh were sons of Waryam Singh. Ex. P.12 is jamabandi for the year 1981-1982 recording Ugajar Singh as owner in possession of some of the property. It is, thus, established on the record from the perusal of above referred evidence that Waryam Singh s/o Hira Singh was proved to be owner of the suit property. The plaintiffs/appellants have not placed on record any other cogent documentary evidence proving that suit property devolved upon Waryam from his father Hira Singh. There is no evidence on the record that Waryam Singh s/o Hira Singh received his property from his father and so on. There is no revenue record brought on record tracing the origin of the property beyond Waryam. The reliance of the plaintiffs/appellants is on the plaint Ex. P.A The plaint Ex. P.A is not signed by Santokh Singh, father of the plaintiffs, but, is thumb marked by Charan Singh and Amar Singh and signed by Hazura Singh only. Even otherwise, plaint Ex. P.A has not been proved by summoning the original record and by examining the person who either drafted it or who was the author to it. Ld. counsel for the appellants has submitted that plaint has been exhibited as Ex. P.A and, as such, it has to be taken into account. This Court does not agree with the contention of Ld. counsel for the appellants as mere making of a document as exhibit does not dispense with its proof. Reference may be made to law laid down in Sait Tarajee Khimchand v. Yelamatri Satyam, reported in (1972) 4 SCC 562 : AIR 1971 Supreme Court 1865. Firstly, this plaint has not been proved on record as required by law and, as such, it cannot be taken into account and secondly it is not signed or thumb marked by Santokh Singh and, as such mere recital contained in it that the suit property is coparcenary property is not sufficient alone to prove it independent of other cogent evidence on the record. Santokh Singh received the property from his father Waryam Singh only on the basis of decree vide Ex. P.B and Ex. P.C the judgment and decree and, as such, it would not become the ancestral property qua plaintiffs and defendants. Reference is also made to law laid down in Molar, defendants-appellants v. Smt. Santo defendants-respondents; reported in 1968 Current Law Journal 213 that admission if wrong and against the facts cannot operate as estoppel. The property in dispute has not been found to be ancestral and coparcenary property by the trial Court. This Court agrees with the finding recorded by the trial Court under issue No. 2.
6. XXX XXX XXX XXX
7. The finding of the trial Court under issue No. 1 was not assailed in this Court in this appeal by the appellants. No arguments were advanced challenging the finding of trial Court under issue No. 1 by the appellants. The next material point for disposal of this appeal falls under issue No. 6 The onus of this issue has been placed on the defendants and it is for the defendants to prove that Santokh Singh executed a legal and valid will dated 8.5.90 in favour of his sons if so its effect. This Court has already come to this conclusion that suit property is not joint Hindu family and coparcenary property of the plaintiffs and defendants. Now, the next point is whether a valid will has been executed by late Santokh Singh in favour of his sons or not. The Ld. counsel for the defendants submitted that the will Ex. P.1 is a registered document and there is no doubt about its authenticity. DW-1 Narinder Kumar has been examined by the defendants, who has stated that he worked with Melu Ram, who has since expired and had been a deed writer. He produced the register maintained by Melu Ram, deed writer in the Court. He identified signatures and handwriting of Melu Ram on the deed Ex. D.1 and proved copy of extract of register Ex. D.2 DW-2 as examined by the defendants is Bhag Singh. He has stated that Bant Singh, his father has since expired. Bant Singh was another attesting witness of will Ex. D.1 He identified signatures of his father, who is one of the attesting witnesses on Ex. D-1. He further stated that his father Bant Singh has died about four years ago. DW-3 Badan Singh is only surviving attesting witness of Ex. D-1. He has stated that Santokh Singh executed will Ex. D-1 in his presence. He further stated that Melu Ram, deed writer prepared the will Ex. D-1 at the instance of Santokh Singh thereafter he read over the contents of it to Santokh Singh and Santokh Singh signed and thumb-marked it after admitting it to be correct in his presence and in the presence of Bant Singh, Lambardar. He further stated that Bant Singh also attested the will in his presence and in the presence of Santokh Singh. He further stated that he also signed the will as attesting witness in their presence. He further deposed that will was then put up before the Tehsildar for registration, where it was again read over and explained to Santokh Singh and Santokh Singh both signed and thumb marked it in token of its correctness and thereafter, he himself and Bant Singh attested it. He proved endorsement Ex. D-3. On the other hand, Ld. counsel for the plaintiffs submitted that the will is a suspicious document. That requirement of Section 63 of Indian Succession Act has not been met in this case by the statement of only one living attesting witness DW-3 Badan Singh. Admittedly, Melu Ram, Scribe of will Ex. D-1 and Bant Singh another attesting witness of the will Ex. D-1 have departed from this material planet and no longer available. The requirement of Section 69 of Indian Evidence Act in proving will has Page: 415been fulfilled in the statement of Ex. DW-1 Narinder Kumar and DW-2 Bhag Singh. The will Ex. D-1 is registered document. Ld. counsel for the appellants submitted that DW-3 Badan Singh has stated that Kewal Singh accompanied them on the date of execution of will, but, DW-4 Kewal Singh has denied it. The will which has been proved as required by law and contained just disposition of property cannot be doubted on this point alone. The next submission of appellants before this Court is that age of Santokh Singh has been given out by DW-4 Kewal Singh as 50 years, but, in will Ex. D-1 it is recorded as 74 years. The will cannot be doubted on this ground only as actual age was in the knowledge of Santokh Singh, who has stated it in will Ex. D-1. There is no evidence on the record proving that Santokh Singh testator was incapacitated to execute will at the time of execution of will Ex. D-1. The will Ex. D-1 is registered document and registration goes a long way in proving its authenticity. Reference may be made to law laid down in Jambunatha Iyer v. Sankari Ammal, reported in 1995 (2) Civil Court Cases 654. It has further been held in Nihal Kaur (Deceased)… v. Jugraj Singh…, reported in 1997 (3) RCR (Civil) 584 (P&H) : 1997 (Suppl) Civil Court Cases 679 that non-examination of second wintess raises no adverse inference and it is not uncommon that people in villages often put their thumb impression in preference to their signatures on the documents.
8. On careful appraisal of the evidence, this Court finds no suspicious circumstances regarding the execution of the will Ex. D-1, which should invalidate it. Reference was made to law laid down in Gurbinder Singh v. Teja Singh, reported in 1991 Civil Court Cases 539 and K.H Krishna Iyer & Others v. Parvathy Ammal & Others, reported in 1988 Civil Court Cases 551. These authorities are misplaced one. These authorities have been meaningful, had it been held that the suit property is coparcenarty and ancestral property of the appellants/plaintiffs. Even otherwise, the authorities are distinguishable from the facts involved in this case. The appellants then referred to law laid down in Kartar Kaur v. Milkho, reported in 1997 (1) RCR (Civil) 571 (SC) : 1997 (1) Civil Court Cases 153. This authority is again distinguishable from the facts of the case in hand. The suspicious circumstances in that case were entirely different in nature vis-a-vis the facts of the case in hand. The reliance of the appellants on law laid down in Ram Piari v. Bhagwati, reported in 1990 CCC 370 is also distinguishable from the facts involved in case in hand. The appellants then referred to law laid down in Joga Singh v. Samma Kaur, reported in 1996 (2) RCR (Civil) 325 (P&H) : 1996 (1) Civil Court Cases 641. On perusal of this authority, this Court finds this authority to be on different set of circumstances. In the cited will was not scribed by regular deed writer and was not registered and attesting witnesses were from the distance of 200/250 kms. and testator of the property has no property as alleged in the will and it was under these circumstances that the will was set aside. The facts of the case in hand are different from the facts of the cited cases. The will Ex. D-1 is duly proved on the record. Santokh Singh was the absolute owner of the property and as such, he was competent to dispose his property on the basis of will. The finding recorded by the trial Court under issue No. 6 suffers from no infirmity and the finding of the trial Court under issue No. 6 is affirmed and this issue has been correctly decided by the trial Court in favour of the defendants.”
10. Three-fold contentions were raised by the learned counsel for the appellants. Firstly, that it is not proved on the record that the will executed by Santokh Singh has been duly proved. In support of his contention the learned counsel has invited my attention to Section 63 of the Indian Succession Act, 1925. The learned counsel submitted that as per Section 63(c) of the said Act it was obligatory on the part of the attesting Witnesses examined by the propounder of the will to say that each of the attesting witnesses had Signed the will in the presence of testator. Since the attesting witness Badan Singh never gave the statement to the effect that he signed the will in the presence of the testator, therefore, the will has not been duly proved. I am not in a position to subscribe to the first argument raised by the learned counsel for the appellants as in my opinion the learned counsel has not rightly appreciated the evidence of Badan Singh which was recorded by the trial Court in Punjabi script. I may first state here that the will is a registered one and its authenticity cannot be easily doubted though the onus is always upon the propounder of the will to remove the suspicious circumstances. The Punjabi version of the statement of Badan Singh was also supplied to me by the learned counsel and the reading of the same would show that Badan Singh had stated that he signed the will in the presence of the testator. Badan Singh appeared as DW3 and stated that he knew Santokh Singh and in his presence he executed the will which was scribed by Melu Ram who belonged to his village. This witness further stated that Melu Ram, deed-writer of the Will, after scribing the will, read it out to Santokh Singh, who thumb marked and signed the same in his presence after understanding its contents. Farther, it has been deposed by Badan Singh that he also signed it as a witness (main bhee gawahi pai si). This clearly indicates that the will was also attested by witness Badan Singh in the presence of the testator. It is a matter of describing about the events. Word “Gawahi” is an Urdu word and its meaning is very clear. In vernacular it always has the meaning of “attestation”. Badan Singh further deposed that other witness was Bant Singh Numberdar who also attested the will by becoming a witness in his presence and in the presence of Santokh Singh. Further, Page: 416it has come that the will was scribed on the instructions of Santokh Singh. This witness further went on saying that Melu Ram deed-writer made an entry in his scribe register upon which he and Bant Singh also signed besides Santokh Singh, who also put his thumb impression in addition to his signatures. Photo copy of the register has been proved as Ex. D2. Further, it has come in the statement of Badan Singh that after the execution of the Will it was presented before the Sub-Registrar who read over its contents to the testator. The testator Santokh Singh admitted the contents of the same before the Sub-Registrar and he again put his thumb impression and signatures. Also it has been deposed by this witness that he and Bant Singh Number-dar also attested the Will in the presence of Sub-Registrar by putting their Gawahi. In my opinion, this is due compliance of the provisions of Section 63 of the Indian Succession Act and the will has been duly proved. Therefore, I have no hesitation in rejecting the first contention raised by the learned counsel for the appellants.
11. The second argument which was raised by the learned counsel for the appellant is that it has not been proved on the record that the property in the hands of Santokh Singh was non-ancestral. Rather, according to Mr. Singla, it is proved on the record that the property in the hands of Santokh Singh was ancestral and thus he could not make a Will of the entire land but only limited to his own share. In order to constitute a Joint Hindu Family property it has to be established by the plaintiffs that the property has gone to Santokh Singh by way of survivorship or it has been inherited by him from his father, grandfather or great grandfather but in the present case it is established on the record that the property devolved upon Santokh Singh on the basis of a decree Ex. PA and it cannot be held to be an ancestral property. The learned counsel also drew my attention to the copy of the plaint dated 21.5.1985 in order to show that when Santokh Singh, Amar Singh, Charan Singh and Hazura Singh filed a suit for declaration against their father Waryam Singh, they themselves alleged that the property in the hands of their father is a coparcenary one and, therefore, the finding of the Court below that the property was non-ancestral in the hands of Santokh Singh is erroneous. This argument of the learned counsel for the appellants also cannot be accepted. If the property has not gone to Santokh Singh by way of survivorship, how it can be held to be ancestral. Moreover, this plea is not open to the present appellants who are none else but the sons of Santokh Singh. If Santokh Singh does not allege that the property in his hands was ancestral, how the sons of Santokh Singh can say that the property in the hands of their father was ancestral. In this view of the matter, I repel the second argument of the learned counsel for the appellants and hold that the property in the hands of Santokh Singh was non-ancestral and, therefore, he had the right to execute the will.
12. Then it was submitted on behalf of the appellants that the will is shrouded by suspicious circumstances. According to the plaintiffs, the will is dated 8.5.1990, Santokh Singh survived only for few days after the execution of the Will. He was a patient of cancer. Also it was submitted that one of the beneficiaries was present at the time of the execution of the Will and, therefore, Santokh Singh was not in a position to form a rational opinion with regard to the disposition of the property. First, I may say that this aspect of the case has been examined by the Courts below as to whether any suspicious circumstance is shrouded with the Will and both the Courts have held that the Will executed by Santokh Singh was valid and genuine. Even the plaintiffs are the beneficiaries under the Will though for a limited period. There is nothing on the record to show that Santokh Singh testator was incapacitated to execute the Will. I have stated in the earlier portion of this judgment that the will is a registered document. Santokh Singh appeared before the scribe as well as before the Sub-Registrar. The registered will should be given more weightage once it is established that the property was non-ancestral in the hands of the testator who was in a sound and disposingmind. The presence of a beneficiary by the side of the testator per se is no ground to hold that the testator was not in a position to form a rational view. There is nothing on the record that any beneficiary had participated actively to such an extent that he had diverted the mind of the testator in such a manner that the testator was not in a position to form a rational view with regard to the disposition of the property. In this view of the matter, I also repel the third argument raised by the learned counsel for the appellants.
13. No other point was urged before me.
14. Resultantly, I do not see any merit in this appeal and do not want to interfere in the well reasoned judgments of the Court below. The appeal is hereby dismissed in limine with no order as to costs.
Appeal dismissed.