State Of Haryana vs Harnam Singh(Dead) Thr. Lrs. .

STATE OF HARYANA …APPELLANT(S) VERSUS HARNAM SINGH (DEAD) THR. LRS. & ORS. ...RESPONDENT(S)

JUDGMENT

ANIRUDDHA BOSE, J.

The appellant before us is the State of Haryana assailing

the legality of a judgment delivered by the High Court for the

State of Punjab and Haryana at Chandigarh on 5th May, 2008.

In the judgment under appeal, the High Court set aside the

concurrent finding of the Trial Court and the First Appellate

Court on the point of genuinity of a Will of one Kishan Singh by

which agricultural land comprising of 52 kanals and 3 marlas

in the district of Kurukshetra in Haryana stood bequeathed to Signature Not Verified Digitally signed by SUNIL KUMAR Date: 2021.11.26 15:30:15 IST Reason: one Harnam Singh (since deceased). The Will [the English

translation of which has been annexed to the counter-affidavit 1 of one Naseeb Singh, filed as and on behalf of the legal heirs of

Harnam Singh (deceased)] does not specify the area or

description of the land. The disposition in the said instrument

is of “all the land which is my self-acquired and other movable

and immovable properties located at Patti Dogran Kaithal”.

2. On the death of Kishan Singh on 15th January, 1975 (the

date as reflected in the High Court judgment), dispute arose

over mutation of the subject-land as the original plaintiff

Harnam Singh (deceased) claimed the right over the subject-

land on the basis of the Will of late Kishan Singh, executed on

10th December, 1974 (the date as reflected in the High Court

judgment). He claimed to be the legatee under the said Will.

Admittedly, Harnam Singh (deceased) was not related to late

Kishan Singh by blood. The former was tilling the land of late

Kishan Singh, as it has transpired in evidence before the Trial

Court. In the Will, the genuinity of which is contested by the

State of Haryana, it is recorded that Harnam Singh (deceased)

was looking after late Kishan Singh. The authority of the first

instance, on the basis of the said Will, had mutated the land in

favour of Harnam Singh (deceased). But the Assistant Collector

had turned down the plea of mutation as he did not accept the

2 existence of the Will. Applying the doctrine of escheat, the land

was mutated in favour of the State. Thereafter, the suit was

instituted on 29th May, 1978 by said Harnam Singh (deceased)

seeking the following reliefs:-

“It is therefore prayed that a decree for declaration to the effect that the mutation sanctioned in favour of the Haryana State is wrong and does not confer any right on the State of Haryana and that the plaintiff is owner in possession of the suit property as mentioned in para no. 1 of the plaint and in the copy of jamabandi for the year 1972-73 with consequential relief of permanent injunction restraining the defendants from auctioning or alienating in any way the suit property may kindly be passed in favour of the plaintiff and against the defendant alongwith the costs of the suit. Any other relief to which the plaintiff is deemed entitled to may also be granted.” (quoted verbatim from the copy of the plaint as annexed to the paperbook)

3. In the suit, Diwan Singh (since deceased), Sohan

Singh (since deceased) and Kehar Singh (since deceased)

were impleaded as defendant nos. 2 to 4. They appear to be

nephews of late Kishan Singh (sons of his paternal cousin

brothers). They were made defendants following the

subsisting rule of succession. It has not come in evidence

that Kishan Singh was survived by his spouse or any child.

3 The defendant no. 2 also passed away but his legal

representatives have been brought on records. The

endorsement made on the cause title of the petition reveals

that the defendant nos. 3 and 4 have also passed away and

their interest is being represented by the legal

representatives of the defendant no. 2 in this appeal.

4. The Trial Court dismissed the suit on 22nd October, 1981,

which was contested by the first defendant only (State of

Haryana). In the judgment of the Trial Court, it was inter-alia,

held :-

“7(d) In view of the perfunctory and casual manner in which the will is alleged to have been scribed all of a sudden inasmuch as now kurushetra No. of the land sought to be bequeathed by the will have been mentioned in the will nor has it been scribed or attested by people who could claim them selves to be intimated with the deceased (since the present with eases as per their own statement were neither related to nor intimated with the deceased and happen to be chance with eases. If I may say so), I am unable to be accept the averments of these with eases that the deceased ever executed the will Ex.A.1 on the summoned file copy of which is Ex.P.4 at all in favour of the plaintiff. In view of the shove appraisal of the testimony of PWs 1,2,3 and 4. Ian of the opinion that no will was executed by the deceased kishan Singh in favour of the plaintiff as alleged accordingly issue Nos 1 is deceased

4 against the plaintiff and in favour the defendant.” (quoted verbatim from the copy of the judgment as annexed to the paperbook)

5. The First Appellate Court affirmed the said judgment on

20th July, 1982, holding:-

“14. The learned unseal for the appellant contended before me that when statements of witnesses are consistent with each other then they should be held to prove execution of the will. I am of the view that in the instant case, though statements of witnesses are consistent but these does not inspire confidence and are not sufficient to prove execution of will because thumb impressions on the will because thumb impressions on the will are not proved to be of the deceased. Will is not scribed by licensed petition writer. Scribe does not belong to the village attesting witnesses of the will are chance witnesses having no special connection with the deceased. All these facts shows that due execution of will is not proved. So finding of trial court on issue No.1 is liable to be confirmed and is confirmed.” (quoted verbatim from the copy of the judgment as annexed to the paperbook)

6. The following question of law was formulated by the High

Court for admitting the Second Appeal of Harnam Singh

(deceased) :-

“Whether the will alleged to have been executed by Kishan Singh is genuine or it could be disbelieved by both the Courts below, which

5 has been proved as per the provisions of section 63 of the Indian Succession Act.” (quoted verbatim from the copy of the judgment as annexed to the paperbook)

The High Court took a view different from that of the fact

finding Courts and held:-

“Learned counsel for the respondent state further argued that the will is not a registered document. The argument cannot be accepted as there is no requirement of law that will has to be registered. Of course, if a will is registered it would certainly be a circumstance to prove its genuineness but the mere fact that a will is not registered would not by itself be sufficient to discard the other cogent evidence to prove the will. In the present case the witnesses produced by the plaintiff-appellant have been successfully able to establish the due execution of the will by the testator while he was in a sound disposing state of mind by examining two independent attesting witnesses, one of whom is a Municipal Councilor, and the scribe, who had written the will. All the witnesses have vouched about the sound state of mind of the testator at the time of execution of will. There is nothing on record to show that any of the witnesses has some relationship with the propounded of the will namely Harnam singh, in order to demonstrate that their testimony is false and unacceptable. No other point has been urged by the learned stated counsel.

Resultantly, this appeal is allowed, the judgments and decrees of both the courts below are set aside and the suit of the plaintiff is decreed quashing the mutation sanctioned in favour of the state. The plaintiff-appellant is declared to be the owner in possession of the suit property as mentioned in para No.1 of the

6 plaint. The defendant-state is further restrained from auctioning or alienating the suit property.” (quoted verbatim from the copy of the judgment as annexed to the paperbook)

7. The opinion of the High Court was that the Will was

proved in terms of Section 63 of the Indian Succession Act,

1925 and while coming to such finding the High Court went

deep into factual inquiry. It is evident from the judgment under

appeal that the formulation of the question of law was on

question of fact only. Moreover, in formulating the question on

the basis of which the Appeal was admitted, the High Court

proceeded on the basis that the Will was proved in terms of

Section 63 of the Indian Succession Act, 1925. The person

claiming to be scribe of the Will as well as the two attesting

witnesses deposed to support the case of the original plaintiff,

but both the Trial Court and the First Appellate Court

disbelieved their testimony. The thumb impression of Kishan

Singh was not matched. There was contradiction in the

evidences of attesting witnesses as regards the place of

execution. The requirement of Section 63 of the Indian

Succession Act, 1925 cannot be said to have been fulfilled by

mechanical compliance of the stipulations therein. Evidence of

7 meeting the requirement of the said provision must be reliable.

The fact finding Courts did not find such evidence to be

reliable. The provision of Section 63 of the 1925 Act reads:-

“63. Execution of unprivileged Wills.—Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

Thus, the High Court erred in formulating the question of

law on the basis that the Will was proved in terms of Section 63 8 of the Indian Succession Act, 1925. In fact, both the fact-

finding Courts-the Trial Court and the First Appellate Court,

had found that the Will was not proved. The evidences of the

witnesses were disbelieved as they failed to inspire the

confidence of fact finding Courts. The High Court, however,

went into a detailed factual enquiry to come to its finding. We

are of the opinion that an enquiry of such nature was

impermissible while hearing an appeal under Section 100 of the

Code of Civil Procedure, 1908.

8. In our opinion the finding of the Trial Court and the First

Appellate Court ought not to have been interfered with by the

High Court. We do not find any perversity in the judgment of

the first two Courts of facts.

9. The legal heirs of late Kishan Singh have also contested

the appeal before this Court and a counter-affidavit to that

effect has been filed by one Sukhwinder Singh. In the said

counter-affidavit, he has taken a plea that the defendant Nos. 2

to 4 were not informed about the said suit. Defendant nos. 2 to

4 were struck off from the array of parties in the First Appellate

Court on the ground that no relief was claimed against them as

per submission of the appellant’s counsel before the said Court.

9 The defendant nos. 2 to 4 have raised their claim in course of

this proceeding over their right on the subject-land under

Sections 47 and 48 of the Indian Succession Act, 1925. But

that question cannot be adjudicated in this proceeding. The

question of inter-se dispute between the State of Haryana and

the defendant nos. 2 to 4 cannot be resolved in this appeal as

fresh evidence would have to be led to adjudicate that question

and this would create a new dispute altogether that was not

addressed previously in the suit from which the present appeal

arises. We do not have clear evidence as to whether the original

defendant nos. 2 to 4 had been served summons or notice of

the proceeding at the stage of trial. It would be open to the

individuals claiming to be the legal representatives of late

Kishan Singh to question the claim of the State of Haryana over

the subject-land under the doctrine of escheat. We do not close

that option in this judgment.

10. In such circumstances we allow the appeal and set aside

the judgment of the High Court. The judgments of the Trial

Court and the First Appellate Court are restored. But on the

question of claim of the legal representatives of original

defendant nos. 2 to 4 over the suit land, it would be open to

10 them to bring appropriate action as may be permissible under

the law.

11. There shall be no order as to costs.

...……………………….J. (L. NAGESWARA RAO)

………………………….J. (ANIRUDDHA BOSE)

New Delhi;

November 25, 2021.

11