BHAG SINGHversusJASKIRAT SINGH & ORS.

                   [2009] 16 (ADDL.) S.C.R. 586
                                                                           \.
A                          BHAG SINGH
                                 v.
                      JASKIRAT SINGH & ORS.
                (Civil Appeal Nos. 650-651 of 2003)
                       DECEMBER 16, 2009
B
     [P. SATHASIVAM AND ASOK KUMAR GANGULY, JJ.]
                                                                       ;.   .
       Code of Civil Procedure, 1908 - s. 100 - Second appeal
  - Substantial question of law, raised as regards validity of two
c Wills - High Court dismissing the appeal in limine without
  adverting to factual details, salient features and validity of the
  Wills - On appeal, held: In view of the two Wills, there exist
  substantial questions of law to be decided by High Court -
  Matter remitted to High court to decide the second appeals
D in the light of the substantial questions of law - Will -            ).


  Succession Act, 1925 - s. 63(c).

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 650-
    651 of 2003.
E       From the Judgment and Order dated 14.5.2002 of the High
    Court of P_unjab and Haryana at Chandigarh in R.S.A. No. 4 &
    5of2001.

          Manoj Swarup, Akash Deep and Devesh Kumar Tripathi
                                                                                r
F   for the Appellant.

        K.K. Mohan (N.P.) for the Respondent.

        The Judgment of the Court was delivered by

G       P. SATHASIVAM, J. (1) These civil appeals were directed
    against the judgment and order dated 14.05.2002 of the High        f        ..
    Court of Punjab and Haryana at Chandigarh in R.S.A. Nos. 4
    & 5 of 2001, in and by which the High Court, by separate
    orders, confirmed the findings recorded by both the Courts
H                                586
              SHAG SINGH v. JASKIRAT SINGH & ORS.                   587
                      [P. SATHASIVAM, J.]

        below and dismissed the second appeals.                            A

            (2) Heard Mr. Manoj Swarup, learned counsel for the
        appellant.

             (3) In view of the questions raised and the course which
        we are going to adopt, there is no need to refer all the factual   S
        matrix in both the second appeals. According to learned
        counsel for the appellant, though substantial questions of law
. '""   that arose for consideration before the High Court was to the
        validity of the Wills dated 07.12.1979 and 11.08.1986, the High
        Court without adverting to factual details, salient features and   C
        validity of those wills dismissed the s~cond appeals without
        giving adequate reasons.

            (4) It is seen from the materials placed that one Natha
       Singh owned two houses - one in Punjab and other in Haryana. 0
 - "" He bequeathed his house in Gurdaspur, Punjab by way of Will
      dated 07.12.1979 in favour of his son Shag Singh, the appellant
      in both the appeals. It is further stated that he is alleged to have
      executed another Will dated 11.08.1986 bequeathing his house
      in Kalka, Haryana in favour of his second son, through his grand E
      son, Jaskirat Singh. It is the further case of the appellant that
      after the death of Natha Singh, Jaskirat Singh filed Civil Suit
      against the appellant and his own grandmother for possession
    ~ of the house at Kalka, Haryana which had been bequeathed
      to him as per the Will dated 11.08.1986 executed by his F
      grandfather.               1
                                J
            (5) It is pointed out that the trial Court as well as the first
      appellate Court relied upon the Will dated 11.08.1986 even
      though no attesting witness was examined. This was done
      merely on the testimony of the scribe. It is further pointed out G
      that the status of scribe cannot be equated to that of an attesting
, 'r
      witness. It is further highlighted that Kirpal Singh and Iqbal -
      Singh, brothers of the appellant filed another civil suit in the trial
      Court against the Appellant seeking declaration to the effect
      that the appellant and respondents are owners in possession H
    588 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A of the house at Gurdaspur, Punjab having 1/4th share each as               ~   .
  legal heirs of deceased Natha Singh. The appellant had
  defended the suit on the ground that the said house at
  Gurdaspur, Punjab had been bequeathed to him by his father
  through Will dated 07.12.1979. It is also highlighted by the
B appellant that the trial Court and the first appellate Court
  disbelieving the Will dated 07.12.1979 decreed the suit of the
  respondents. It is pointed out that the High Court by two
  separate impugned orders passed on the same day dismissed
  the second appeals filed by the appellant even though
                                                                         ..
c substantial questions of law arose in both the appeals.

        (6) Learned counsel for the appellant submitted that in view
  of the controversy between the parties in respect of the suit
  properties, particularly, in view of the execution of two Wills, the
  following substantial questions of law that arose before the High
D Court were:
                                                                         :~


          (i)     Whether testimony of a scribe can be treated as
                  testimony of an attesting witness for proving
                  execution of a Will and hence compliance with the
E                 statutory requirements of Section 63 clause (c) of
                  the Indian Succession Act, 1925?

          (ii)    Whether High Court could have dismissed the
                  Regular Second Appeals, in limine when mixed
                                                                         J
                  questions of fact and law arose as to construction
F                 and genuineness of Will affecting substantive rights
                  of the parties?

          (iii)   Whether High Court could have upheld the validity
                  of one Will and rejected the other Will, when
G                 contents of one Will referred to the contents of the
                  other Will?

         (7) Learned counsel appearing for the appellant
                                                                         {       '
    strenuously contended that in the light of the execution of two
    Wills, compliance with the statutory requirements of Section
H
             BHAG SINGH v. JASKIRAT SINGH & ORS.                 589
                     [P. SATHASIVAM, J.]
· ~ 63(c) of the Indian Succession Act, 1925 and the construction A
    and genuineness of the Wills have to be gone into since it
    affects the substantive rights of the parties, it is but proper for
    the High Court to deal with the issues in a better consideration
    than dismissing the same without adverting to any of the
    relevant materials.                                                 B

             (8) In the light of the controversy and the stand taken by
·- _., the parties with reference to the Wills dated 07.12.1979 and
        11.08.1986, it cannot be said that there is no substantial
       question of law to be decided by the High Court. In such
       circumstances and to render substantial justice to both parties, C
       we set aside both the orders of the High Court dated
        14.05.2002 and remit the same to the High Court for fresh
       disposal. We request the High Court to re-hear both the second
       appeals in the light of the substantial questions of law referred 1
       to above and decide the same one way or the other based on D
   ,._ the materials available. It is made clear that we have not
       expressed anything on the merits of the claim made by both
       the parties and it is for the High Court to consider and dispose
       of the second appeals by affording opportunity to both the
       parties as expeditiously as possible uninfluenced by any of the E
       observations made above.

        (9) Both the appeals are allowed to the extent mentioned
  \ above. No costs.

    K.K.T.                                  Appeals partly allowed.     F