Punjab-Haryana High Court
Prem Singh vs Amrik Singh on 10 March, 2025
Neutral Citation No:=2025:PHHC:033130
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA-991-1993(O&M)
Reserved on: 04.03.2025
Pronounced on: 10.03.2025
PREM SINGH
. . . .APPELLANT
Vs.
AMRIK SINGH AND OTHERS
. . . . RESPONDENTS
CORAM: HON'BLE MR. JUSTICE DEEPAK GUPTA
Argued by:- Mr. Saurabh Bajaj, Advocate, for the appellant.
Mr. Bhag Singh, Advocate, for the respondent.
DEEPAK GUPTA, J.
Plaintiff (appellant herein through his LRs) of the suit is aggrieved
by the judgment/decree dated 03.11.1992 passed by the First Appellate
Court of ld. Additional District Judge, affirming the judgment & decree dated
11.12.1990 of the trial Court, whereby suit filed by him seeking declaration of
his title to the suit property to the extent of 1/6th share was dismissed.
2. Trial Court record was called. Same has been perused. In order
to avoid confusion, parties shall be referred as per their status before the
trial Court.
3. Smt. Punjabi was married to Kartara @ Kartar Singh. From their
wedlock, Puran Singh @ Purna was born. Said Puran Singh died unmarried
and issueless. On the death of Kartara @ Kartar Singh, Smt. Punjabi
performed marriage with Kahla Singh @ Kallu and from this wedlock, six
issues, namely, Prem Singh, Ajmer Singh, Jagir Singh, Ram Singh, Joginder and
Ajmer Kaur were born. Prem Singh is plaintiff. Defendants N: 1 to 4 are heirs
of Ajmer Singh. Jagir Singh & Ram Singh are defendants N: 5 & 6. Joginder
and Ajmer Kaur are impleaded as party to the suit.
4. The dispute pertains to 27 kanal 12 marla of land, which
belonged to Puran Singh. Plaintiff claims 1/6 share in the said land submitting
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that after the death of Puran Singh, six legal heirs of the mother of Puran
Singh @ Purna had inherited the same in equal share. He further alleged that
Will as purported to be executed by Puran Singh, was null and void.
5. Defendants contested the claim, pleading title to the suit
property on the basis of Will dated 15.2.1980 of Puran Singh in favour of
Ajmer Singh i.e., predecessor of defendants N: 1 to 4 and defendants N: 5 &
6. It was further claimed that plaintiff was estopped from filing the suit, as at
the time of sanctioning of the mutation on 01.04.1980 based upon the Will,
he had not raised any objection.
6. In replication, plaintiff denied his presence at the time of
sanctioning of mutation. He further submitted that mutation was got
sanctioned in very suspicious way on the same date, when Puran had died.
7. Necessary issues were framed. Evidence produced by the parties
was taken on record. Trial Court dismissed the suit by holding the defendants
to be owner of the suit property based on the Will of Puran Singh. The
judgment dated 11.12.1990 to this effect passed by the trial Court has been
affirmed by the Appellate Court on 03.11.1992, in the appeal filed by the
plaintiff.
8. Against the aforesaid concurrent findings, the plaintiff has
approached this Court.
9. During pendency of the appeal, the sole appellant Prem Singh
expired and his legal representatives were brought on record.
10.1 It is contended by ld. counsel for the appellant that original Will
was never produced before the Court for comparing the purported thumb
signature of Puran Singh on the Will with his sample signatures. Although it
was observed by the First Appellate Court that original Will had been
produced at the time of sanctioning of the mutation before the Revenue
Authorities, but defendants did not take any steps so as to summon any
official from revenue department to produce the original Will and as such,
copy of the Will could not have been taken into consideration.
Page 2 of 17 2 of 17 ::: Downloaded on - 13-03-2025 04:36:43 ::: Neutral Citation No:=2025:PHHC:033130 RSA-991-1993 2025:PHHC: 033130 10.2 It is further contended that out of the two attesting witnesses to
the Will namely, Chetu Ram and Gurdev, Chetu Ram had expired; whereas,
Gurdev was alive but still he was not examined on the ground that he had
sided with the plaintiff.
10.3 Ld. counsel contends that the Will is held to have been proved
by both the Courts below only on the basis of statement of scribe Prem
Singh, who could not be considered to be an attesting witness. Ld. counsel
further submits that as per Section 63 of the Indian Succession Act to be read
with Section 68 of the Indian Evidence Act, at least one of the attesting
witnesses is required to be examined to prove the Will. It is contended that
Section 69 of the Evidence Act, will come into play only in case none of the
attesting Witness can be found. Ld. counsel has further drawn attention
towards Section 71 of the Evidence Act so as to contend that execution of the
Will can be proved by other evidence only in case the attesting witness
denies or does not recollect the execution of the document. It is contended
that in this case, as only one of the attesting witnesses i.e. Gurdev was
available, he should have been examined so as to prove the Will. Only in case
the said witness Gurdev denied the execution of the Will or failed to recollect
the execution of document, either due to siding with the plaintiff or any
other reason whatsoever, that the Will could have been proved by way of
other evidence as per Section 71 of the Evidence Act. No such step having
been taken by the defendant i.e. the propounder of the Will to examine
attesting witness Gurdev, the Courts have committed grave error in holding
the Will to be duly proved. Ld. counsel has relied upon Gurcharan Singh and
others Vs. Angrez Kaur and another, Law Finder Doc Id #145102; and Janki
Narayan Bhoir Vs. Narayan Namdeo Kadam, Law Finder Doc Id #1612.
11.1 Refuting the aforesaid contentions, it is argued by ld. counsel for
the respondents-defendants that at the time of sanctioning of the mutation
on 01.04.1980 based upon the Will of Puran, plaintiff-Prem Singh did not
make any protest. As such, he is estopped from challenging the Will or filing
the suit.
Page 3 of 17 3 of 17 ::: Downloaded on - 13-03-2025 04:36:43 ::: Neutral Citation No:=2025:PHHC:033130 RSA-991-1993 2025:PHHC: 033130 11.2 It is further contended that Prem Singh scribe has been
examined so as to prove the Will and he proved the due attestation thereof
also and that the appellate Court has observed that he was also one of the
attesting witnesses to the Will. Ld. counsel has also drawn attention towards
the testimony of the defendant, as per which the other attesting witness
Gurdev had sided with the plaintiff and so, was not supporting the case of
defendants.
11.3 Ld. counsel further submits that defendants cannot be faulted
for non-production of the original Will, inasmuch as the same had been
produced for sanctioning of mutation before the revenue authorities as has
been observed by the ld. Appellate Court and as such, suit has been rightly
dismissed.
11.4 With the above submissions, ld. counsel contends that there is
no scope for interference in the concurrent findings of facts as recorded by
the Courts below. Prayer is made for dismissal of the appeal.
12. This Court has considered submission of both the sides and has
appraised the record carefully.
13. Admittedly, the original Will dated 15.02.1980 was not produced
in evidence. However, trial court record reveals that permission to prove said
Will by way of secondary evidence was granted by trial court vide order dated
23.04.1987. Contention of learned counsel for the appellant is that said
permission was wrongly granted in the absence of proof of loss of the Will.
14. Section 65 of the Indian Evidence Act, 1872 (for short, `the
Evidence Act‘) deals with the cases, in which secondary evidence relating to
the documents may be given. It reads as under:-
“65. Cases in which secondary evidence relating to document may be
given.
Secondary evidence may be given of the existence, condition or contents of
a document in the following cases :
(a) when the original is shown or appears to be in the possession or
power of the person against whom the document is sought to bePage 4 of 17
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proved, or of any person out of reach of, or not subject to, the process
of the Court, or of any person legally bound to produce it, and when,
after the notice mentioned in section sixty-six, such person does not
produce it;
(b) xxxxxxxxxxxxxxx
(c) When the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not
arising from his own default or neglect, produce it in reasonable time;
(d) to (g) xxxxxxxxxxxxxx
In cases (a), (c) and (d), any secondary evidence of the contents of the
documents is admissible.
xxxxxxxxxxxxx.”
15. As far as existence of WILL is concerned, it may be noted that
mutation No.204 dated 01.04.1980 (Ex.D1/Ex.P3) was sanctioned in favour of
Ajmer, Jagir & Ram Singh on the basis of Will dated 15.02.1980. The mere fact
that mutation has been sanctioned on the basis of Will in itself proves the
existence of the Will. In Joga Singh and another Vs. Gurwinder Singh and
others, 2017(2) Law Herald 1279, mutation of inheritance was sanctioned on
the basis of registered Will. It was held by this court that existence of the Will
was proved and, therefore requirement of Section 65 of the Evidence Act for
granting permission to lead secondary evidence was duly complied with.
16. Further, loss of Will is also proved by evidence available on
record. Trial Court record shows that Harender, Office Kanango was
summoned to produce the Will, as it had been earlier produced by Ajmer
Singh at the time of sanctioning of the mutation. However, as per the
statement of Harinder, Office Kanango, the original Will was taken away by
Ajmer Singh. Jagir Singh, one of the defendants, appeared in the witness box
as AW2 and stated that he made all possible search for the original Will at his
house and also at the house of Ajmer Singh, who has since expired, but could
not trace the same. As per his testimony, at the time of mutation, it is Ajmer,
who has produced the Will and had taken the same with him but later on did
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not return it back. In these circumstances and in the absence of any evidence
in rebuttal to the contrary, it is held that loss of Will is duly proved.
17. It is also important to notice that it is the plaintiff, who was going
to gain by the non-production of the Will because in case Will is not proved,
the property will go by natural succession and plaintiff will get 1/6th share in
the suit property. On the other hand, if Will is produced and proved on
record, it is only Ajmer, Jagir & Ram Singh (predecessor of defendant No.1 to
4; and defendants N: 5 & 6), who being the beneficiary of the Will, are to get
the entire property. Therefore, there was absolutely no reason for
defendants to have concealed the original Will.
18. In Dhanpat Vs. Sheo Ram (Deceased) Through LRs & Ors.,
2020(2) RCR (Civil) 437, there was oral evidence of the defendants that
original Will was lost. Certified copy of the Will was produced. It was held
that defendants had made out sufficient ground for leading of the secondary
evidence.
19. Considering the legal as well as factual position in this case, it is
held that no illegality was committed by trial court in granting permission to
prove the Will by way of secondary evidence.
20. Before moving further as to whether the Will dated 15.02.1980
of Puran is proved or not as per the requirement of law, it is noticed that
there is also dispute amongst the parties regarding the date of death of
Puran. According to plaintiff, Puran had expired on 01.04.1980, as is evident
from death certificate issued by the Registrar, Birth and Death (Ex.P1). This
certificate is also proved by PW1-Suresh, an official of CMO Office. On the
other hand, contention of the defendants is that Puran had expired on
19.03.1980, as recorded by Patwari in the mutation sanctioned on the basis
of Will.
21. In this regard, it has been noticed by the Appellate Court that
entry of 01.04.1980 regarding the death of Puran was made by Chowkidar,
whereas the entry regarding date of death of Puran to be on 19.03.1980 was
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made by Patwari in the mutation. The Patwari Sheo Ram DW1 appeared in
the witness box and proved that he had recorded the date of death of Puran
after ascertaining the said date from the Village. As against it, Chowkidar, on
whose entry, birth and death certificate Ex.P1, was issued, has since expired.
It is noticed that there is consistent evidence produced by the defendants on
record showing that Chowkidar belonged to another village and was
uneducated and that he used to visit their village only once in a month and
used to write the dates, whatever were told to him by the people and it was
not always correct.
22. In the abovesaid facts and circumstances, it is no doubt true that
exact date of death of Puran has not come on record, but at the same time, it
is not believable that Puran had expired on 01.04.1980. There is another
reason for holding so. Perusal of the mutation No.204 Ex.D1/Ex.P3 would
reveal that this mutation, based upon the Will of Puran, was entered by the
Patwari on 23.03.1980, stating therein that Puran had expired on 19.03.1980
and that on 23.03.1980 the Will was produced by Ajmer for sanctioning. The
said mutation was verified by Kanango on 24.03.1980 and then, ultimately it
was sanctioned on 01.04.1980. In case Puran had expired on 01.04.1980,
there could be no question for the Patwari to enter on 23.03.1980 the date of
his death as 19.03.1980. In these circumstances, on the basis of
preponderance of probabilities, it is held that date of death of Puran is
19.03.1980 and not 01.04.1980. As such, the finding of the Courts below in
this regard is upheld.
23. Proceeding to the most material issue involved in the case, as to
whether the Will dated 15.02.1980 (Ex.DW2/A) is proved or not?, it may be
noted that as per legal position, the mode of proving a WILL does not
ordinarily differ from that of proving any other document except as to the
special requirement of attestation prescribed in the case of a WILL by Section
63 of the Indian Succession Act, which reads as under:-
“63. Execution of unprivileged wills. – Every testator, not being a soldier
employed in an expedition or engaged in actual warfare) or an airman soPage 7 of 17
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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.”
24. Apart from above, Section 68 of the Evidence Act is quite
relevant regarding proving the execution of a WILL. This reads as under:
“68. Proof of execution of document required by law to be attested. — If a
document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of
the execution of any document, not being a will, which has been registered in
accordance with the provisions of the Indian Registration Act, 1908 (16 of
1908), unless its execution by the person by whom it purports to have been
executed is specifically denied.”
25. The conjoint reading of above provisions makes it quite clear
that at least one out of the two attesting witnesses must be called to prove
due execution of the WILL. Further, it is required for the attesting witness to
prove that he had seen the testator sign or affix his mark to the WILL in his
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presence; or that he received from the testator a personal acknowledgment
of his signature or mark of the signature of such other person and each of the
witnesses shall sign the WILL in the presence of testator. Reliance can be
placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam 2006(1)
C.C.C.563, wherein it has been held by Hon’ble Supreme Court that to prove
due execution of Will, attesting witness must state that each of the two
witnesses has seen the executor sign or affix his mark to the instrument or
has seen some other person sign the instrument in his presence and by the
direction of the execution. Witness should further state that each of the
attesting witness signed the instrument in the presence of the executant.
Hon’ble Supreme Court held that these are the ingredients of attestation and
they have to be proved by the witnesses.
26. Further, it is the settled proposition of law that it is the
propounder of the Will, who has to prove its due execution. Besides, mere
proving the signatures of the testator on the Will is not sufficient. Reference
in this regard can be made to Ganpat Vs. Siri Chand 1992(1) LJR 252 and
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(2) LJR 646, wherein
it has been held that due and valid execution of the Will cannot be proved by
simply proving that the signatures on the Will was that of the testator. It must
be proved that attestations were also made properly as required by clause (c )
of Section 63 of the Succession Act, 1925.
27. In the light of abovesaid legal position, it is required to be seen
as to whether the due execution of the Will dated 15.02.1980 set up by
defendants, has been proved in this case or not.
28. As per the legal position discussed above, though attestation of
the Will by at least two witnesses is required but in order to prove the Will, at
least one of the attesting witnesses is required to be examined, who should
prove due execution of the WILL as per requirement of Section 63 of the
Indian Succession Act. However, the question is that in case attesting
witnesses are dead or not available for any reason, or in case the attesting
witnesses become hostile to the beneficiary by colluding with the opposite
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party, whether the beneficiary of the Will can be deprived of the fruits of the
Will or whether in such a situation, Will can be proved in any other mode.
29. Section 69 of the Evidence Act deals with the situation, when no
witness is found; whereas Section 71 of the Evidence Act deals with the
situation, when attesting witness denies the execution. These provisions read
as under:-
“69. Proof where no attesting witness found.
If no such attesting witness can be found, or if the document purports to have been
executed in the United Kingdom, it must be proved that the attestation of one
attesting witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.
71. Proof when attesting witness denies the execution.
If the attesting witness denies or does not recollect the execution of the document,
its execution may be proved by other evidence.”
30. In the present case, perusal of the Will dated 15.02.1980, copy
of which has been produced on record as Ex.DW2/A would reveal that it is
purported to be scribed by Prem Singh and attested by two witnesses namely
Chetu Ram and Gurdev. Chetu Ram has admittedly expired. Gurdev has not
been examined on the ground that he had sided with the plaintiff after taking
money from him. In order to prove the said Will, defendants have only relied
upon the testimony of scribe Prem, who examined as DW2 proved that he
had scribed the Will on the dictation of Puran and had read over the contents
thereof to Puran and after understanding thereof, Puran had signed the same
and other two attesting witnesses had attested the same.
31. Though this witness i.e. DW2-Prem Singh proved the legal
requirements so as to prove the Will, but the question is as to whether his
testimony can be considered to be that of an attesting witness, when it is
noticed that attesting witness Gurdev has not been examined despite being
available. It has been conceded during arguments before this Court that no
effort was made so as to summon witness Gurdev by the defendants. As per
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the testimony of Jagir DW4, one of the defendants, this witness i.e. Gurdev
had sided with the plaintiff after taking money, due to which he has not
examined.
32. Here itself, it may be noticed that though ld. appellate Court has
referred DW2 Prem Singh to be scribe as well as attesting witness but said
observation is absolutely wrong. Perusal of the Will (Ex.DW2/A) will clearly
reveal that Prem Singh has been referred as ‘likhne wala’. Meaning thereby,
he had only scribed the Will. Even in his testimony as DW2, Prem Singh
clearly stated that he had scribed the Will. He nowhere stated that he had
attested it as an attesting witness. As such, statement of DW2 Prem Singh
cannot be considered to be that of attesting witness to the Will.
33. Now the question is when one of the attesting witnesses is dead
and other attesting witness has not been examined by the propounder of the
Will, whether the Will can be held to be proved, even if the contention of the
propounder of the Will i.e., defendants is that the other attesting witness had
sided with the plaintiff, due to which he has not been examined.
34. Perusal of the Section 69 of Evidence Act would reveal that it
only comes to operation, when no attesting witness can be found. However,
in the present case from the evidence on file, it is quite clear that one of the
attesting witnesses namely Gurdev was alive but neither he has been
examined nor any effort was made by the defendants, the propounder of the
Will, to summon him on the pretext that he had sided with the plaintiffs. As
such, Section 69 is not applicable.
35. Section 71 of the Evidence Act will be applicable only in case the
attesting witness denies or does not recollect the execution of the document
and it is only in that situation that the execution of the Will may be proved by
the other evidence. It has been observed by Hon’ble Supreme Court in Janki
Narayan Bhoir (Supra) as under:
“Section 71 of the Evidence Act is in the nature of a safeguard to the
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it is not possible to prove the execution of the will by calling attesting
witnesses, though alive. This Section provides that if an attesting witness
denies or does not recollect the execution of the will, its execution may be
proved by other evidence. Aid of Section 71 can be taken only when the
attesting witnesses, who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence. Section 71 has no
application to a case where one attesting witness, who alone had been
summoned, has failed to prove the execution of the will and other attesting
witnesses though are available to prove the execution of the same, for the
reasons best known, have not been summoned before the court. It is clear
from the language of Section 71 that if an attesting witness denies or does
not recollect execution of the document, its execution may be proved by
other evidence. However, in a case where an attesting witness examined fails
to prove the due execution of will as required under clause (c) of Section
63 of the Succession Act, it cannot be said that the Will is proved as
per Section 68 of the Evidence Act. It cannot be said that if one attesting
witness denies or does not recollect the execution of the document, the
execution of will can be proved by other evidence dispensing with the
evidence of other attesting witnesses though available to be examined to
prove the execution of the will. Yet, another reason as to why other available
attesting witnesses should be called when the one attesting witness
examined fails to prove due execution of the Will is to avert the claim of
drawing adverse inference under Section 114 illustration (g) of Evidence Act.
Placing the best possible evidence, in the given circumstances, before the
Court for consideration, is one of the cardinal principles of Indian Evidence
Act. Section 71 is permissive and an enabling Section permitting a party to
lead other evidence in certain circumstances. But Section 68 is not merely an
enabling Section. It lays down the necessary requirements, which the Court
has to observe before holding that a document is proved. Section 71 is
meant to lend assistance and come to the rescue of a party who had done
his best, but driven to a state of helplessness and impossibility cannot be
let down without any other means of proving due execution by “other
evidence” as well. At the same time Section 71 cannot be read so as to
absolve a party of his obligation under Section 68 read with Section 63 of
the Act and liberally allow him, at his will or choice to make available orPage 12 of 17
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not a necessary witness otherwise available and amenable to the
jurisdiction of the court concerned and confer a premium upon his
omission or lapse, to enable him to give a go bye to the mandate of law
relating to proof of execution of a will.”
[Bold portion emphasised by this court]
36. Similarly, in Ram Ratan Misra And Anr. vs Smt. Bittan Kaur AIR
1980 Allahabad 395, it has been observed as under by Allahabad High Court:
“7. Section 71 of the Act makes it clear that if the attesting witness denies
or does not recollect the execution of the document, its execution may be
proved by other evidence. This rule provides an exception to the rule
enunciated in Section 68. But to make this provision applicable it is evident
that the attesting witness will have to appear in Court as a witness. Until
he appears as a witness there is no question of his denying the execution
of the document, or not recollecting the execution of the document. If the
witness sits at home and is not examined because there is an apprehension
that he may not support the execution of the mortgage deed, in that event
there is a failure to produce the evidence which is required under Section
68 of the Act. Consequently, Section 71 cannot come into play. There is no
question of leading any other evidence about the due execution of the
document in such a case. Other evidence can be led only when the attesting
witness who has been called, fails to prove the execution of the document
by reason of the denial of his own signature or that of the executor or having
no recollection about the execution of the document. Consequently, until
that stage is reached no other evidence can be led or relied upon to prove
the due execution of the mortgage deed. In the present case the courts
below have fallen into this error. They have proceeded to examine other
evidence and rely on it without the attesting witness, who is alive and
available, having entered the witness box and denied the execution of the
document. The evidence of the scribe in the circumstances of the case could
not be relied upon for the proof of the due execution or the mortgage deed.
8. A witness can become hostile only when he makes a statement contrary
to the case taken by the party who has summoned him. It is then open to
the party examining him to pray to the court to declare him hostile and seekPage 13 of 17
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the permission of the Court under Section 154 of the Evidence Act for cross-
examining him. The party may then through the cross-examination elicit
from him the proof of his case. Section 71 makes it clear that if the attesting
witness repudiates his signature or that of the executor or does not recollect
the execution of the document, then other evidence may be led to prove the
due execution of the document. Consequently, the courts below were not
right in allowing the party to lead or in relying on the other evidence in proof
of the due execution of the document. The contention that the plaintiff was
certain that the attesting witness had been won over and would not give
evidence in her favour is not a sufficient ground for the consideration of
other evidence. In view of what has been stated above the due execution of
the mortgage deed cannot be held to have been proved……”
[Bold portion emphasised by this court]
37. The aforesaid authority was also followed by Karnataka High
Court in Robert D’ Mello Vs. Henry D’ Mello, AIR 2004 Karnataka 78. In this
case, the execution of the Will was denied by one of the attesting witness;
whereas other attesting witness was not called at all to depose though
available. In these circumstances, execution of the Will was held to be not
proved on evidence of the Sub-Registrar and Scribe.
38. It is, thus, clear that in order to make Section 71 of the Evidence
Act, applicable, it is required that attesting witness has to appear in the Court
as a witness. Until he appears as a witness, there is no question of his
denying the execution of the document or not to recollect execution of the
document. If the witness has not been produced on the apprehension that he
may not support the execution of the Will, in that event there is a failure to
produce the evidence as required under Section 68 of the Evidence Act and
consequently, Section 71 of the Evidence Act cannot be applied.
39. In the present case, as Gurdev, one of the attesting witnesses,
despite being alive, having not been examined by the propounder of the Will
i.e., defendants, therefore, it is held that Courts below committed grave error
in holding the Will to have been proved. Section 71 of the Evidence Act is not
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at all applicable in the facts of the present case. As such, finding of the courts
below in this regard is hereby reversed.
40. It is contended by Ld. counsel for the respondents that at the
time of sanctioning of the mutation, plaintiff had not raised any protest and
so, Will is assumed to be admitted by him. Contention has no merit. It is
noticed that only Ajmer had produced the will for sanctioning of the
mutation on 23.03.1980. Mutation was sanctioned on 01.04.1980 in the
presence of Ajmer, who had produced it and in the presence of both the
attesting witnesses and the Lambardar. The proceedings of the sanctioning of
the mutation as recorded by the Assistant collector 2nd Grade, as mentioned
on the mutation would reveal that presence of plaintiff Puran is nowhere
shown. As such, it cannot be held that Puran had admitted the execution of
the Will or had consented for sanctioning of the mutation on the basis of the
Will.
41. It is lastly argued by ld. counsel for the respondents that both
the courts below have upheld the validity of the Will and that this court
cannot interfere in the concurrent findings of facts recorded by the Courts
below.
42. There is no merit in the contention. No doubt that High Court
has limited scope to interfere in the concurrent findings of facts, but there
are certain exceptional circumstances, when the High Court can intervene.
One of such circumstances is where there is complete misappreciation of
evidence or ignorance of the material evidence on record on the part of the
Courts below. In Gurbachan Singh Versus Gurcharan Singh 2023 SCC OnLine
SC 875, it has been held by Hon’ble Supreme Court:
“14. As already noted above, another ground of objection taken by the
Appellant is the fact of the impugned judgment entering into a
reappreciation of evidence. While it is true that ordinarily, in second appeal,
the court must not disturb facts established by the lower court or the first
appellate court. However, it is also equally well recognised that this rule is
not an absolute one or in other words, it is not a rule set in stone. In NazirPage 15 of 17
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Mohamed (2020) 19 SCC 57, this Court has recognised three conditions in
which a court in such jurisdiction, may disturb findings of fact. They are:–
“(i) the courts below have ignored material evidence or acted on no
evidence; or (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. A decision based on no evidence, does not
refer only to cases where there is a total dearth of evidence, but also
refers to case, where the evidence, taken as a whole, is not
reasonably capable of supporting the finding.”
15. A Bench of three learned Judges, recently in Balasubramanian v. M.
Arockiasamy (Dead) Through LRs, (2021) 12 SCC 529., had referred to, with
approval judgment rendered in Ramathal v. Maruthathal , (2018) 18 SCC
503 (two-Judge Bench) wherein it was observed that the restraint in
interfering with questions of fact under the jurisdiction of second appeal, is
not an absolute rule. Where the court is of the view that the conclusions
drawn by the court below do not have a basis in the evidence led or it is of
the view that the appreciation of evidence “suffers from material
irregularity” the court will be justified in interfering with such findings.”
43. In Easwari Vs. Parvathi and others, 2014 AIR (SCW) 4406, it has
been held by Hon’ble Supreme Court that there is no absolute ban on the
High Court in the Second Appeal to interfere with the facts. High Court
cannot be precluded from reversing the order and judgment of the Lower
Court if there is perversity in the decision due to misappreciation of the
evidence. Similar view has also been taken in State of Rajasthan and others
Vs. Shiv Dayal and another, 2019 (3) PLR 635.
44. In the present case, courts below not only mis-appreciated the
evidence on record, they also failed to correctly apply the legal position
regarding proving of the Will in dispute. As such, High Court can certainly
intervene in such circumstances.
45. On account of entire discussion as above, it is held that the
judgments as passed by the Courts below cannot be sustained in the eyes of
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law. Both these judgments are hereby set aside. The present appeal is hereby
allowed. It is held that Will dated 15.02.1980 (Ex.DW2/A) is not proved in
accordance with law. As such, the suit filed by the plaintiff-appellant is
hereby decreed by holding that plaintiff (appellant herein through his LRs) is
entitled to 1/6th share in the suit property on the basis of natural succession
and by discarding the Will of Puran, which is held to be not proved as per law.
Plaintiff is further held entitled to the decree for possession of the land to the
extent of his share as indicated above. Parties are left to bear their own cost.
Decree sheet be prepared accordingly.
(DEEPAK GUPTA)
10.03.2025 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? Yes
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