Jeewan Kumar and Anr v. Rama Rani and Anr

IN T

Jeewan Kumar a Rama Rani and

CORAM : HO

Present: Mr

Ms

for

Mr

Res

Vid MANDEEP PA

1.

Thi Jeewan Kumar, the learned Firs allowed the app judgment and plaintiff's suit b the suit land and favour of the ap appellate Court' which the muta proved in accord THE HIGH COURT OF PUNJ AT CHANDIGA -.-

RS

Re Da

and Another

VERSUS Another

ON'BLE MS. JUSTICE MAND r. Vipin Mahajan, Advocate and s. Chandanpreet Kaur Ahluwalia the appellants. r. Aayush Goyal, Advocate for re spondent No.2 was proceeded ex de order dated 28.02.2023. -.-

ANNU,J. is Regular Second Appeal is impugning the judgment and d st Appellate Court. By that jud peal preferred by respondent–pla decree dated 16.11.2016 of t by declaring the plaintiff to be ow d by setting aside Mutation No. ppellant. The appellant challeng 's decree and maintains that the ation was sanctioned is a genu dance with law.

JAB AND HARYANA ARH SA-5252-2018 (O&M) served on:-15.09.2025 ate of Decision : 16.09.2025

....Appellants

....Respondents DEEP PANNU , Advocate espondent No.1. x parte preferred by the appellant, S decree dated 07.03.2018 passed dgment, the First Appellate Co intiff, Ms. Rama Rani, reversed the Trial Court and decreed wner in possession of 1/10th share 3198 which had been sanctioned ges the correctness of that learn Will dated 17.12.1995 (Ex.D-2) uine testamentary instrument d

- Shri d by ourt e in d in ned ) on

Factual Backgr

2.

19 marlas fully Gurdaspur, as p history of whic leaving widow B Kamla and Punn heirs in equal Devi/testatrix di (daughter), and share of Punni respondents clai had empowered Power of Attorn Later, on obtai plaintiff found column, instead name of defend dated 17.12.199 The plaintiff al connivance with cancelled the P declaration and

3.

was that the te round e relevant facts, in brief are that detailed in plaint, situated in V per jamabandi for the year 20 ch is material. The common an Banti, two sons Ram Lubhaya an ni alias Shakuntla Devi. The est shares, i.e., each got 1/5th sh ied on 24.01.1996 leaving behin Naval Kishore (son) (responde devolved upon her two child imed 1/10 share. The plaintiff/r d her maternal uncle, Ram Lubh ney dated 12.06.2002 to get th ining certified copies from re her name and that of her broth d Mutation No.3198 dated 24.07 dant No.1 (appellant), son of Ra 95 (Ex.D-2) allegedly executed b lleged that the Will was a forg h witnesses and scribe and that Power of Attorney on 03.01. injunction. e defendants denied the allegat estatrix validly executed the W

t the suit land comprises 88 kan Village Dodwan, Tehsil and Dist 002-2003. The protracted fam ncestor, Nikka Ram, died in 19 nd Som Prakash, and two daught tate devolved upon these five le hare. Smt. Punni alias Shakunt d two children, namely, Rama R ents-herein). On succession the dren in equal shares and thus respondent further pleaded that haya (defendant No.2), by a gene he inheritance mutation sanction venue record on 30.11.2010, her not recorded in the owners .2006 recorded the suit share in am Lubhaya, on the basis of a W by Punni in favour of the appella gery effected by the defendants Mutation No.3198 was illegal. S .2011 and filed the suit seek ion of forgery. Their pleaded c Will dated 17.12.1995 (Ex.D-2)

- nals trict mily ters egal tala Rani she eral ned. ship Will ant. s in She king case ) in

favour of the ap two witnesses, t was no fraud. T upon attesting w

4.

On may be summar

1. (OP

2.

3.

4. (OP

5.

5.

the year 2002-0 Attorney Ex.P-3 plaintiffs closed

6.

attesting witness testatrix) as DW and was involve produced on rec Findings of the

7.

Af that the Will Ex ppellant for reasons stated in the that mutation No.3198 was duly The defendants led oral evidenc witnesses. n the pleadings, the Trial Court rized as follows: Whether the plaintiff is entitl PP) Whether the suit is not maint Whether the suit of the plaint Whether the suit is bad for PD) Relief. e plaintiff examined herself as P 3 Ex.P-1, copy of mutation (cha 3 and Deed of Cancellation dated d their evidence. e defendants examined Jeewan s of the Will dated 07.12.1995 a W-3 and Ram Lubhaya, who als ed in obtaining mutation as DW cord as Ex.D-2. Thereafter the de e Trial Court fter evaluating oral and documen x.D-2 had been proved in accord

e Will, that the Will was attested sanctioned and valid, and that th ce in support of Ex.D-2 and rel framed the principal issues wh led to the declaration as prayed f tainable in the present form? (OP tiff is barred by limitation? (OPD r non-joinder of necessary parti PW-1 and exhibited Jamabandi allenged) Ex.P-2, General Power d 03.01.2011 Ex.P-4. Thereafter n Kumar as DW-1, Dalip Sin as DW-2, Naval Kishore (son of so testified as a witness to the W W-4. The Will dated 17.12.1995 w efendants closed their evidence. ntary evidence the Trial Court h dance with Section 63 of the Ind

- d by here lied hich for? PD) D) ies? for r of ngh, f the Will was held

Evidence Act, DW-2 and DW execution of the mind and that sh witnesses. The cogent evidence the plaintiff Consequently, t the appellant an Findings of the

8.

Fee Appellate Cour Appellate Court suspicious circu execution. The A

(a) wh doc

(b) of ind

(c) Jee Nav 1872. The Trial Court recorde W-4 had been examined and th e Will by the testatrix while she w he had affixed her thumb impre Trial Court further found that e to prove forgery or fraud and without corroborative materi the Trial Court upheld Mutation d dismissed the plaintiff's suit vi e First Appellate Court eling aggrieved, the plaintiff rt re-examined the record and t took the view that the Will Ex. umstances and that the evidenc Appellate Court's reasoning can The Will did not specify the ag hich thumb impression was affix cument. Evidence disclosed that the Wi testatrix Sh. Naval Kishore D dependence of its preparation. Material recitals in the Will ab ewan Kumar were belied by o val Kishore who had actually a

d that two attesting witnesses at their testimony established was possessed of a sound dispos ssion and signed in the presence the plaintiff had failed to prod that, mere assertions of forgery ial evidence were insufficie n No.3198 sanctioned in favour ide judgment dated 16.11.2016. preferred an appeal. The F d reversed the Trial Court. T D-2 was surrounded by a cluster ce did not satisfactorily prove be summarised as follows: ge of the testatrix nor did it spec xed; the Will was an unregiste ill had been typed/described by DW-3, which cast doubt on bout services allegedly rendered oral evidence showing that it w attended and cared for the testat

- viz due sing e of duce y by ent. r of First r of due cify ered son d by was trix,

not

(d) (24 day

(e) Cou wa Pun to b def Ap Submissions of

9.

Lea Appellate Cour without proper attesting witnes execution of the the testatrix, h execution rather the Evidence A witnesses and t satisfied. Once t fabrication lies beneficiary (appellant) was sho t in attendance. There was an inordinate delay o Will (17.12.1995) and the date

4.07.2006); during this interval y," which raised suspicion. Taken cumulatively, these cir urt to disbelieve the documentar s not a genuine instrument. By nni devolved upon her two child be owner in possession of 1/10 fendant No.1 (appellant) was se pellate Court was rendered on 07 f learned counsel for the partie arned counsel for the appellant rt erred in reversing the concu reason. It was pointed out that sses DW-2 and DW-4 who ha e Will dated 17.12.1995 and tha had also given evidence which r than disproved it. Learned cou Act requires that a Will be pro that if two attesting witnesses the primary evidence has been so on the party asserting it and

own to be employed elsewhere of eleven years between the date when the mutation was sanction the Will "did not see the light rcumstances caused the Appel ry exhibit and to hold that the W natural succession the 1/5 share dren and the plaintiff was decla 0 share; the mutation in favour et aside. The impugned decree

7.03.2018. s ts vehemently urged that the F urrent finding of the Trial Co the defendants had examined t ad positively deposed to the at DW-3 Naval Kishore, the son h, properly considered, suppor unsel emphasised that Section 63 oved by the evidence of attest are examined the requirement o led, the burden to show forgery that such party must lead cog

- and e of ned t of late Will e of ared r of by First ourt two due n of rted 3 of ting t is y or

evidence of frau of evidence and overturn a trial consider materia

10.

Lea Appellate Cour circumstances w pressed the poin were inconsisten remained conce cancellation of t after-thought o where strong an

11.

I h record.

12.

It i must be prove witnesses are ex instrument as p surrounded by s of the propound are raised, a Co the primary evi examine the sur Trial Court afte ud. Reliance was placed on the T d on the settled principle that an court's findings unless perver al evidence is demonstrated. arned counsel for the responde rt and urged that the Will was which, taken together, rendered th nts that the Will had been typed nt with material facts about atte ealed for a long period befo the Power of Attorney and the c r fabricated documentation. C nd cogent, can outweigh mere att have heard learned counsel for is well established that a Will i ed in accordance with the Ev xamined and their testimony is s proved. At the same time the suspicious circumstances the ten der of the Will as heavier. In oth ourt must scrutinise the evidenc idence i.e. attesting witnesses rrounding facts. Where findings er appreciating evidence of witn

Trial Court's thorough appreciat n appellate court should not ligh rsity, misappreciation or failure ents supported the approach of s indeed surrounded by suspici he Will unreliable. Learned coun by son of testatrix, that the reci endance and services, that the W re mutation and that subsequ conduct of defendants suggested Counsel submitted that suspici estation. the parties and gone through is a testamentary instrument wh vidence Act. When two attest satisfactory, a court may accept law recognises that if a Will ndency is to treat the proof requi her words, where reasonable dou e carefully. The Court must we and the document itself and a s of fact have been recorded by nesses and seeing their demean

- tion htly e to ous nsel itals Will uent d an ion, hich ting l is ired ubts eigh also

and where ther substituting its v

13.

Th upon by the Firs analysis of the r to them by th cumulatively to Court's credibili Absence of testa

14.

express statemen whether a right view, while such testatrix's exact affixed is not p statutory requir instrument must are whether the presence of atte had requisite t testatrix's intent two attesting w the contents to b thereafter the w formalities of ex re is no perversity, the Appe view. his Court now proceeds to discus st Appellate Court and the respo record, these circumstances eithe he Appellate Court or they o displace the direct evidence o ity findings. atrix's age and the question of t e Appellate Court emphasised nt of the age of the testatrix and t or left thumb impression had h descriptive details may someti t age or the precise description per se a ground to declare a W rement that a Will must conta t specify which thumb was impr e document bears the formalit esting witnesses and their corrob testamentary capacity, and th t. In the record before this Cou witnesses (DW-2 and DW-4) wh be correct and then put her thum witnesses signed. That testimon xecution. The absence of an age

ellate Court must be cautious ss in detail each circumstance rel ndent, and explain why, on crit er do not carry the weight attribu are insufficient either singly of attesting witnesses and the T thumb impression particulars that the Will did not contain d that the Will did not clearly rec been affixed. This Court is of mes assist a Court, the absence o n of which thumb impression w Will invalid or forged. There is ain the testator's age or that ressed. The decisive considerati ties of testamentary execution borating testimony, that the testa hat the instrument expresses urt there is positive testimony fr ho stated that the testatrix admit mb impression in their presence ny directly addresses the essen recital therefore constitutes at m

- in lied ical uted or Trial an cord of a was ions i.e. atrix rom tted and ntial

a peripheral irre concrete indicia The unregistere

15.

by the Appellate in law. Many pr executed and a evidential consi weight of authe Therefore the u circumstance o witnesses. Typing/descript

16.

described by N suspicious circu Ordinarily, one possibility of se reverse. Naval K he would have Ex.D-2 expressl nephew of the t Will but also ap his mother. egularity and not evidence of f a of non-genuineness. ed nature of the Will e fact that the Will was unregis e Court. It must be emphasised th rivate Wills are never registered attested. The principal conseque iderations ie. registered docume enticity but absence of registrat unregistered status of Ex.D-2 f sufficient force to overthrow tion of the Will by the son of the e First Appellate Court observe Naval Kishore (DW-3), son of t umstance. In the view of this might treat involvement of an h elf-interest, however, in the pres Kishore was a natural heir of Pu inherited one-half of her 1/5 ly disinherited him and bequeath estatrix. Despite this, Naval Kis ppeared as DW-3 and admitted t

fabrication in the absence of ot stered was given some significa hat registration of a Will is optio d and yet are perfectly valid if d ence of non-registration relates ents ordinarily carry an evidenti tion does not make a Will inva cannot itself constitute suspici w positive testimony of attest e testatrix (DW-3/Naval Kishore ed that the Will had been typed the testatrix, and treated this a s Court, this reasoning is flaw eir in preparing a Will as creatin sent case the factual position is unni and, under normal successi share in the estate. Yet, the W hed the property to the appellan shore not only did not challenge that the Will had been executed

- ther ance onal duly s to iary alid. ious ting e) d or as a wed. ng a ion, Will nt, a

17.

Thi the son of the te dispute its genu casting suspicio instrument lend fabricated to the to object, but he case of the appe The recital of s actual caregivin

18.

On an apparent con rendered certain actually the test Court treated thi

19.

Thi carefully separa whom she choo reasons of comp disposition. The person at some another relative proportion to se instrument itself is is a very material circumstanc estatrix, who would have lost a ineness. On the contrary, he sup on on the Will, the involvemen ds support to the case of the p e detriment of Naval Kishore, h e did not. Instead, he confirmed i ellant and goes to support its genu services rendered to the testatrix ng ne of the primary grounds relied ntradiction between a recital in n services to the testatrix and the tatrix had been served by her s is contradiction as undermining is raises two distinct legal an ated. First, a testator has comple oses, and gratitude for services panionship or preference can law e fact that the testatrix may h e period does not legally precl e. The law does not require the ervices rendered nor to explain f.

ce because it demonstrates that ev direct share under the Will did pported it in his testimony. Far fr nt of Naval Kishore in typing propounder. If the Will had b he would have been the first per its execution, which strengthens uineness. x by appellant and the evidence d upon by the Appellate Court w n the Will that the appellant h oral evidence which suggested t son, Naval Kishore. The Appel credibility of the Will. nd factual points which must ete freedom to bequeath property rendered many years earlier or wfully be a motive for testament ave received more care from lude her from choosing to ben e testatrix to distribute property n every motivation in detail in

- ven not rom een rson e of was had that late be y to for tary one nefit

20.

For contemporaneou forgery. Delay between d

21.

time i.e. approx which mutation delay in produc no plausible e production at a l

22.

revenue record f Power of Attorn 2006. The Powe mutation may h often consume additional proof not suffice to pe Cancellation of

23.

which facilitated (Ex.P-4), and a documents were prove that a test r these reasons the alleged incon us caregiving evidence cannot b date of Will (17.12.1995) and m e Appellate Court attached par ximately eleven years, between t n was sanctioned on its basis. U ing a Will may be suspicious, p explanation for the delay and later date improbable. But cautio ere are many legitimate reason for many years. In the present ca ney (Ex.P-3) was executed in 2 er of Attorney route itself provid have been delayed, administrativ years. The mere numerical gap f that the Will was fabricated d ersuade the Court that the Will is f the Power of Attorney (03.01.2 e plaintiff relies upon the fact th d mutation was subsequently can argues that such cancellation e procured by fraud. Cancellation tamentary document executed e

nsistency between the recital and be treated as a decisive indicator mutation (24.07.2006) rticular importance to the lapse the date of the Will and the date Undoubtedly, an unexplained lo particularly if the propounder off d contemporaneous events m on is required. ns why a Will may remain out ase, the record shows that a Gene 2002 and that mutation occurred des a plausible explanation for w ve steps followed by revenue act p between 1995 and 2006, with during the intervening period, d s false. 2011) and conduct after mutatio hat the Power of Attorney (Ex.P ncelled by a deed dated 03.01.20 supports a conclusion that ini n of an instrument does not by it earlier was forged. The cancellat

- r of e of e on ong ffers make t of eral d in why tion hout does n P-3) itial self

proves that a d unsurprising in i Credibility and

24.

testimony of tw Lubhaya). The T entitled to re-ap the trial court, it manifestly contr

25.

On both DW-2 an acknowledged th and they signed that these witne forensic eviden fails to produce must be afforde impugned as p evidence. Cumulative asse

26.

cumulatively. W court may right however, the so status, typing by dispute arose between parties la intra-family property matters. evidentiary weight of attestation e decisive evidentiary element wo attesting witnesses DW-2 Trial Court accepted their eviden preciate the evidence, but to ove ts conclusion must demonstrate t rary to the materials on record or n re-reading the materials of the nd DW-4 gave consistent ac he contents to be correct and put d as witnesses. There is no dire esses lied, indeed the plaintiff pr ce to disprove their testimony. contradictory credible evidence d weight. The Trial Court's acce perverse when the record othe essment of suspicious circumsta e law instructs courts to ex Where numerous independent i ly decline to accept a Will desp o-called suspicious circumstance y son of testatrix, the recital abo

ater, the existence of a dispute ns (DW-2 and DW-4) in favour of the Will rests on (Dalip Singh) and DW-4 (R nce. The First Appellate Court w erturn concurrent factual findings that the trial court's assessment w r vitiated by legal error. e attesting witnesses, one finds t ccounts. They stated that Pu t her thumb impression before th ect evidence in the record show roduced no independent witness Where the party alleging forg e, the attesting witnesses' testimo eptance of their evidence cannot erwise shows no cogent negat ances xamine suspicious circumstan indicia of fabrication converge pite attesting evidence. In this ca es i.e absence of age, unregiste out services, delay in mutation,

- e is Ram was s of was that unni hem wing s or gery ony t be tive nces e, a ase, ered

subsequent canc constitute a suf acceptance of a cogent counter-clarity as to ou Court's findings Burden and sta

27.

It m the propounder. the receiving pa fabrication or fr are insufficient. contemporaneou witness testimo material in pro evidence of the CONCLUSION

28.

On attesting eviden findings are reco

(i) by Tri atte Act cellation of Power of Attorney fficiently tight or compelling c attesting witnesses. The centra evidence. On the whole, the sus utweigh the positive testimony o s. ndard of proof must be reiterated that the primar If the propounder proves the W arty asserting forgery must disc fraud. Mere assertions and infer The plaintiff here failed to lead us documents, handwriting or ony contradicting the attesting w oving forgery. The Trial Cour propounders as legally sufficient N n the basis of the evidence on re nce, and the detailed analysis of orded: The Will dated 17.12.1995 ( two witnesses whose testimon al Court. That evidence satisf esting witnesses as contemplate t. The Trial Court's acceptance

y when analysed in detail, do cluster to upset the Trial Cou al evidence remains unrefuted spicions are not of such strength of DW-2 and DW-4 and the T ry burden to prove the Will rests Will by attesting witness testimo charge a burden of proof to sh rences drawn from peripheral fa independent evidence, for exam forensic evidence, or independ witnesses which would have b rt, therefore, correctly treated nt. ecord, the careful re-examination f each circumstance, the follow (Ex.D-2) was produced and attes ny was heard and accepted by fied the requirement of proof ed by Section 63 of the Evide e of DW-2 and DW-4's testimo

- not urt's by h or Trial s on ony, how acts mple dent een n of wing sted by nce

wa evi

(ii) (su spe age if a fab

(iii) cre dire from in t Had to o

(iv) hav disp per doe

(v) mu s not shown to be perverse or dence.

The arguments based on per uch as absence of the testatri ecified) are not legally decisive. e must be recorded or that regis any, are minor and do not, wit brication, invalidate a duly atteste ) The involvement of the heir ate a possibility of self-interes ect share in the Will despite be m casting the suspicion of Will, typing the instruction lends supp d the Will been fabricated, the h object. Therefore, typing/descrip suspicion regarding the genuinen ) The recital in the Will descri appellant, when contrasted wi ve been served by her son, Nav Will invalid. A testatrix m positions in favour of any person rsonal preference, past services, es not establish that the recital w The delay between the date utation, and the subsequent canc

r vitiated by a misappreciation ripheral omissions in the instrum ix's age or the particular thu There is no legal requirement t tration is mandatory. Such defe thout additional direct evidence ed Will. in preparing the will shall factua t. But in this case, the son los eing the one preparing it. Thus, , the involvement of Naval Kish port to the case of the propound heir should have been the first ption of the Will by the son crea ness of the instrument. ibing services allegedly rendered ith evidence that the testatrix m val Kishore, does not in law ren may lawfully make testament n for reasons of gratitude, choice or other considerations. The rec was a deliberate falsehood. of the Will and the sanctioning ellation of a power of attorney,

- n of ment umb that ects, e of ally st a far hore der. one ates d by may nder tary e or cord g of

fac fab

(vi) ide ma Tri

29.

In v Judgment and d hereby set aside Court dismissin No.3198 sanctio proved Will (E dismissed.

30.

Pen

September 16, 2 tripti

Wh

Wh ts that require explanation but a brication. ) For all these reasons, the c ntified by the Appellate Court atrix before this Court, attain the al Court's acceptance of the Wil view of the above, the present R decree dated 07.03.2018 passed e. The judgment and decree dat ng the plaintiff's suit are res oned in favour of the appellant s Ex.D-2). The plaintiff's claim nding application(s), if any, also 2025

(M

hether speaking/non-speaking : Speaki hether reportable : Yes.

are not, on this record, evidence cluster of suspicious circumstan does not, in the particular fact e necessary cogency to overturn ll. Regular Second Appeal is allow d by the First Appellate Court ted 16.11.2016 passed by the T stored. In consequence, Mutat stands held valid on the basis of for declaration and injunction stands disposed of. MANDEEP PANNU) JUDGE ing

- e of nces tual wed. are Trial tion f the