Ajmer Singh & Ors. v. Gurdev Singh (dead) through L.Rs & Ors.

said Bishni in favour of the defendants-appellants. The appellants, on the other hand, claimed the estate of Bishni on the basis of the aforesaid Will. In their written statement, they also pleaded that prior thereto, there was some alienation by Bishni by way of a sale deed and that some portion of her estate was also under mortgage regarding which a suit had been filed on an earlier occasion inter se between them and the said mortgagees in which also, the validity of the Will in question had been gone into by the Civil Courts which had affirmed the genuineness of the same. It was further pleaded by them that this finding regarding the Will cannot be doubted and the same should be read in evidence in the instant suit as well. The trial Court framed the following issues:-

Whether the plaintiffs are the children of Mst. Jatan?

Whether Mst. Jatan was agnate of Mst. Bishni or her husband Sabhu?

Whether the plaintiffs are entitled to the property in suit?

Whether Mst. Bishni executed a valid will in favour of defendants No.1 to 4 on 22.8.1962?

Whether Mst. Bishni sold the land measuring 136 kanals 7 marlas by sale deed dated 31.5.1961 and registered on

3.6.1961 in favour of defendants No. 1 to 4 as referred in para No.1 of the written statement?

Whether 36 kanals of the land out of the said 136 kanals 7 marlas and other 44 kanal out of the said land was under R.S.A.No.1955 of 1983 -3- .... mortgage with Bakhtawar singh son of Mangu, Ujaggar Singh and sons of Prito and the same has been redeemed by defendants No. 1 to 4?

Whether 34 kanals out of the said 136 kanals 7 marlas was under mortgage with said Bakhtawar Singh and was redeemed by defendants No. 1 to 4?

Whether the suit is barred by res judicata and its principles?

What is the effect of the judgment and decree passed by the learned S.J.I.C. Bassi in a suit of Gurpal Kaur defendant and Ld. Additional District Judge, Patiala in the appeals of the said Gurpal Kaur defendants No.1 to 4?

Relief. In the first instance, the suit was dismissed by the trial Court on the ground that it was barred by the principle of res judicata, but in appeal its judgment was set aside and the matter was remanded back for decision on merits. Thereafter, the trial Court, after affording opportunities to the parties to lead their respective evidence, dismissed the suit while deciding Issue nos. 1 to 3 against the plaintiffs, whereas Issue nos.6 & 8 were decided in their favour. Issue nos.4 & 9 were decided against the appellants holding that the Will was not valid, but Issue no.5 was decided in their favour. Issue no.7 was decided as not pressed. The appellants as well as the plaintiffs had filed separate appeals which were dismissed by the first appellate Court. However, the R.S.A.No.1955 of 1983 -4- .... findings of the trial Court on issue nos. 5, 6 and 7 were not questioned by the plaintiffs before the first appellate Court. Feeling aggrieved by the findings of the Courts below, the appellants have filed the instant appeal. I have heard the learned counsel for the appellants and have gone through the whole record. It may be mentioned here that no one has put in appearance on behalf of the plaintiffs despite the fact that publication was resorted to and thus, they have chosen not to contest the appeal. However, on few occasions, Jaswant Singh, one of the plaintiffs, was represented, but thereafter he also defaulted leaving this Court with no other option but to proceed with the appeal when it was taken up for hearing. In my opinion, the following questions of law arise for determination in the present appeal:-

1. Whether the plaintiffs who are not related at all to the testator have right to file the suit for possession against the defendants?

2. Whether the Will can be challenged by the plaintiffs who are not legal heirs of the testator and have no right to succeed to the testator in any manner?

3. Whether the findings in the matter of Will directly and substantially involved in previous litigations and findings recorded by the courts with regard to its due execution are relevant and a valuable piece of evidence in subsequent R.S.A.No.1955 of 1983 -5- .... litigations though not inter parties of previous litigations?

4. Whether the courts below were wrong in ignoring the findings with regard to upholding the due execution and attestation of the Will in question recorded in previous judgments on record?

5. Whether the Will can be executed by a testator in favour of persons serving her even if not related to him or her? On a perusal of the impugned judgments and the records, it transpires that the plaintiffs were clearly held to be not agnates and cognates of deceased-Bishni which finding they have not challenged by filing any appeal before this Court. Consequently, this finding has necessarily to be affirmed. The question then arises as to whether on the basis of the findings qua the Will executed by deceased-Bishni on 22.2.1962 which were arrived at in an earlier suit, although not inter se between the parties, the said document could be taken to be a valid piece of evidence or not and whether the same could be taken into consideration in the present proceedings or not and further, whether in the absence of any relationship between the plaintiffs & deceased-Bishni and also in the absence of any interest being shown by them in her property, could they be considered to be the persons having locus to legitimately challenge the said Will in favour of the appellants?

It is a settled principle of law that if a document has been considered by the Court of competent jurisdiction and a finding returned on R.S.A.No.1955 of 1983 -6- .... its authenticity, then it acquires high probative value which can be considered to be evidence under Section 13 of the Indian Evidence Act,1872. In this regard, reference can be made to the two judgments of the Apex Court and two judgments of this Court reported as AIR 1954 S.C. 379 – Srinivas Krishnarao Kango Versus Narayan Devji Kango and others; AIR 1998 S.C. 1132-Tirumala Tirupati Devasthanams Versus K.M.Krishnaiah; and AIR 1979 P&H 234 – Atma Ram Versus Smt. Parsini & others and 2008(3) R.C.R. (Civil) 448 (P&H) – Sohan Singh Versus Murti Rani and others. Paragraph 11 of the judgment in Srinivas Krishnarao Kango's (supra), in which relevant observations have been made by their Lordships, is reproduced below:- “11. It was next contended that certain documents which were tendered in evidence has been wrongly rejected by the Curts below and that the findings of self-acquisition reached without reference to those documents should not be accepted.

These documents are judgments in two sums for maintenance instructed by Rukminibai in the Sub-Court, Baijapur, C.S.No.445 of 1903 and C.S.No.177 of 1941 and in appeals therefrom, C.A.No.5 of 1905 and C.A.No.39 of 1942 respectively in the District Court, Bijapur. These documents were produced before the trial court on 17.7.1946 along with 26 other documents when the hearing was about to commence and were rejected on appeal, dealing with the complaint of the R.S.A.No.1955 of 1983 -7- .... plaintiff that these documents had been wrongly rejected, the High Court observed: `Apart from the fact that these documents were produced at a very late stage of the case ..... these judgments could have been admitted in evidence only if they could be shown to be relevant under any of the Sections 40 to 44 of the Indian Evidence Act. None of these Sections applied in this case. The trial Judge was, therefore, right in not admitting them in evidence'.

The argument of the appellant is that these judgments are admissible under Section 13 of the Evidence Act as instances in which there was an assertion that the suit properties belonged to the joint family. For the respondens, it is contended that the dispute between the parties in those litigations was only about the quantum of maintenance to be awarded, that no question of title to the properties was directly involved, and that Section 13 was inapplicable. We are unable to accept this contention. The amount of maintenance to be awarded would depend on the extent of the joint family properties, and an issue was actually framed on that question. Moreover, there was a prayer that the maintenance should be charged on the family properties, and the same was granted. We are of the opinion that the judgments are admissible under Section 13 of the Evidence Act as assertions R.S.A.No.1955 of 1983 -8- .... of Rukminibai that the properties now in dispute belonged to the joint family.” In Tirumala Tirupati Devasthanams Versus K.M.Krishnaiah (supra), reliance was placed on the afore-quoted judgment along with other judgments to hold on the similar lines.

Paragraphs 9 and 10 of the judgment are reproduced below:- “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango V. Narayan devji Kango, AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J., held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K.Mukherjea, J.(as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das V. Sant Ram, AIR 1954 SC 606, held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a `transaction' in which a right to property was `asserted' and `recognised'.

In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1902) ILR 29 Cal. 190 (198) (PC) that a previous judgment, not inter parties was R.S.A.No.1955 of 1983 -9- .... admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, (1895) ILR 22 Cal.533 (PC) by Sir John Woodroffe in his commentary on the Evidence Act (1931, p.181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157 : 61 IA 286.

10. For the aforesaid reasons, we reject the contention of the learned counsel for the respondent-plaintiff and hold that the TTD could rely on the judgment in OS 51/37 as evidence to prove its title in regard to the suit property, even though the present plaintiff was not a party to that suit. Point No.1 is held accordingly against the respondent.” A Division Bench of this Court in Atma Ram Versus Smt. Parsini and others (supra), also laid down that the findings recorded by the courts in the previous litigation about a fact, although the same was not inter parties, the same are relevant and valuable piece of evidence. The relevant observations in this regard made in paragraph 8 of the judgment are extracted below:- “......... From the aforesaid decisions, we find the recognised rule of law that previous decisions although not inter parties are not only relevant but have high probative value and are valuable pieces of evidence.

To say in other words, they are in R.S.A.No.1955 of 1983 -10- .... a way good precedents and deserve to be followed in this litigation. While doing so, we hold that documents D-3 to D-7 are relevant pieces of evidence under S.13 of the Evidence Act and have great value as aforesaid. Therefore, relying on the same, we hold that the execution and validity of the will is duly proved. It is worth mentioning that Smt. Parsini plaintiff appeared as a witness in the previous litigation for Ram Chand and Ram Piara and denied the execution of the will and waited to file the present suit after those persons lost in the previous litigation up to the Supreme Court.” In Sohan Singh Versus Murti Rani and others (supra), a Coordinate Bench, while placing reliance on Tirumala Tirupati Devasthanams Versus K.M.Krishnaiah (supra), a learned Single Judge expressed a similar view. On the basis of the aforementioned law and the evidence on record, there is little hesitation to conclude that the Will in question, whose veracity was tested by the Court of competent jurisdiction in civil proceedings between the appellants and the mortgagees of some of the land which belonged to deceased-Bishni, the same was valid and genuine.

It is also necessary to mention here that the person, who had scribed the Will was examined as a Court witness and relevant questions including the spacing of the lines, were put to him and after considering the entire evidence, a finding was returned in the previous litigation that the Will was a valid piece of evidence and in appeal also, the findings regarding the R.S.A.No.1955 of 1983 -11- .... validity of the Will were upheld, even though the matter was compromised between the parties at the appellate stage. The factum of the scribe having been examined regarding the spacing of the writing in the Will assumes significance because this is one of the factors of suspicion on which the Will was discarded in the instant proceedings. In these proceedings, the son of the scribe was examined, who had brought the register which bore the signatures of deceased-Bishni. In such an eventuality, the probative value of the Will as a piece of evidence in the given set of circumstances assumes an exalted position which which cannot be diminished by holding that the same was a fictitious document.

The Courts below ought to have evaluated this piece of evidence in its right perspective. Therefore, I am of the opinion that the finding regarding the validity of the Will which was directly in question in earlier proceedings and whose validity was upheld should not have been discarded by the Courts below, more-so when all these reasons which have been held to discard the Will were almost identically questioned in the earlier proceedings. Besides, the plaintiffs have been held to be having no relation with the deceased-Bishni and, therefore, it cannot be said that they had any locus to challenge the Will, more-so when they were not found in any way directly connected with the estate of deceased-Bishni. In Malkiat Singh Versus Kahsmiri Lal, 2000(1) Civil Court Cases 151 (P&H), a learned Single Judge of this Court held that a stranger who is not entitled to any natural or testamentary succession or any interest in the property has no locus standi to challenge the Will.

R.S.A.No.1955 of 1983 -12- .... There is also, no doubt, that a Will can be executed by a testator even in favour of a stranger. Accordingly, the questions of law which have been framed above, are answered to hold that the Will whose validity has been determined in the earlier proceedings, has a high probative content and was a valid piece of document to be considered as evidence under Section 13 of the Indian Evidence Act,1872 and for the reasons which have been given above, was wrongly discarded by the Courts below. Besides, the plaintiffs, who had already accepted the finding regarding their having no relation with deceased-Bishni because they have not questioned that finding by filing any appeal and this appeal has largely gone uncontested, had no locus to challenge the Will in question and merely because the appellants were not related to deceased-Bishni, would not make any difference because a testator can bequeath his property even to a non-relative if such a testament is made in accordance with law and is free from suspicion. The appeal is, therefore, accepted and the impugned judgments and decrees in which findings against the appellants have been recorded, are set aside. February 23,2010 “SCM” ( Mahesh Grover ) Judge