Introduction & Overview of The Punjab Courts Act
This Blog is written by Himanshi Sharma from Delhi Metropolitan Education, GGSIPU, Noida. Edited by Ujjawal Vaibhav Agrahari.
The Punjab Courts Act has received the assent of the: Lieutenant- Governor of Punjab on 30th May 1918, Governor-General on 12th June 1918 and was first published in the Punjab Gazette on 12th July 1918. It is an act to validate all things done under the Punjab Courts Act, 1914 as amended by Punjab Act IV of 1914, to repeal the said acts or as so much of them as may be valid, and to enact a law relating to Courts in Punjab, which is free from defect as prescribed in the Preamble.
The Act extends to the whole of Punjab. The expression “the Punjab Courts Act 1914” signifies all the published information as the Punjab Courts Act 1914 in Part V of the Punjab Gazette on 22nd May 1914, and the term “Punjab Act IV of 1914” includes what was published as Punjab Act IV of 1914 and in Part V of the Punjab Gazette on 20th November 1914.
The provisions contained in Part II of the Punjab Courts Act were enacted and have been in effect on and from 1st August 1914 in the principal territories.
And in the transferred territories on and from 14th November 1957.
All the things done under the Punjab Courts Act 1914 as amended by Punjab Act IV of 1914 is deemed to be in every way as valid as if the Punjab Courts Act 1914, as amended by Punjab Act IV of 1914 has been in full force and in effect on and from 1st August 1914. Provided:
That any appeal which has been decided by the Chief Court as per jurisdiction to be exercised under Section- 39 (1) (b) of the Punjab Courts Act 1914 to have been validly decided and should not be in question by any reason.
That any appeal which has been presented to the Chief Court under Section- 39 (1) (b) of the Punjab Courts Act 1914 and which should not have been presented if the stated sub-section had run as set out in Section- 39 of Part II of the Act.
That any appeal which had been laid to the Chief Court under Section- 39 (1) (b) of the Punjab Courts Act 1914, but lies to the District Court under provisions of the Act and if presented to the Chief Court at the commencement of this Act would be within time.
Besides the Courts of Small Causes established under the Provincial Small Cause Courts Act 1887, and the Courts established under any other enactment, there shall be the following classes of Civil Courts:
1. The Court of District Judge
2. The Court of Additional District Judge
3. The Court of Civil Judge (Senior Division)
4. The Court of Civil Judge (Junior Division)
Usually, the High Court fixes the place or places at which any Court is to be held. The place or places fixed may be beyond the local limits of the jurisdiction of the Court, except as otherwise provided by any other Section, the Court under this may be held at any place within the local limits of its jurisdiction.
Rules made by the High Court under the powers conferred by Section- 46A which was inserted by Act IV of 1919 in the Punjab Courts Act 1918, declare all those persons shall be permitted to practice as petition writers in Courts and officers in Punjab. It also regulates the conduct of persons so practicing and determining the authority by which breaches of Rules shall be tried.
Petition here means a document which is written to be presented to a Court or a Judicial or Revenue Officer and includes a plaint and memorandum of association.
Form of License for a Petition-Writer
In the Court of the __________________________Judge of the __________________Certified that _________________son of______________ resident of _______________has this day been licensed as a petition-writer of the _______________grade, and is hereby permitted ______________to practice as such in the manner prescribed by rule 4, clause ________________of the rules relating to petition-writers in the Punjab and subject to the provisions of the said rules till the 31st day of August, 19_____. Given under my hand and the seal of this Court, this _____________day of _____________, 19________, at __________.
Note – Petition-writers are reminded that participation by them in any seditious or disloyal movement will be regarded as sufficient cause for dismissal, suspension, or reduction in grade under rule 34 of the rules made by the High Court under section 46-A of the Punjab Courts Act.
|Date of renewal of the license||Renewing Officer|
Register to be maintained by every licensed petition-writer
|Serial number of petition||The date on which the petition was written||Name, parentage, caste, and residence of the person at whose instance the petition was written||Description of petition||A brief abstract of the contents of the petition||Value of court-fee labels affixed to the petition||Fee charged for writing the petition||Remarks||Signature of petition-writer||Signature or thumb impression of the petitioner|
Citation: 2020 Latest Case law 287 SC
Judgment Date: 19 Mar 2020
Coram: L. Nageswara Rao and Hemant Gupta, JJ.
The challenge in the present appeal is to an order passed by the High Court of Punjab & Haryana on 27th March 2014 whereby the concurrent findings of fact recorded by both the courts below were set aside and the suit filed by the respondent-plaintiff was decreed.
The High Court has framed the following two substantial questions of law:
1. Whether the Will dated 30.4.1980 Ex.D-3 was surrounded by suspicious circumstances and due execution thereof was also not proved, in accordance with the requirements of section 63 of the Succession Act.
2. Whether the learned courts below have completely misread, misconstrued, and misinterpreted the evidence available on record, particularly the Will Ex.D-3, because of which the impugned judgments cannot be sustained.
3. The admitted facts are that one Misri was the grandfather of Plaintiff-Sheo Ram and defendant No.5-Sohan Lal and defendant Nos.7-9 were his granddaughters. Chandu Ram was the father of the plaintiff and defendant Nos.5, 7-9 and the husband of Chand Kaur had inherited the suit land from his father, Misri.
4. The plaintiff filed a suit for declaration that he along with his mother, Chand Kaur, and his sisters, defendants Nos. 7-9, were the owners and in possession of equal shares of the suit land measuring 489 kanals 4 marlas. He asserted that he belonged to the Jat community and was governed by Punjab Customary Law. Further, that his brother, defendant No. 5, got a Will dated 30th April 1980 executed in favor of his sons, from Chandu Ram. Such a Will contravened Jat Customary Law and was the result of fraud and misrepresentation. Defendant No.5 and his sons, the beneficiaries under the Will filed a common written statement and asserted that the custom had been abrogated after passing of the Hindu Succession Act, 1956 and that Chandu Ram had separated all his sons during his lifetime and given a sufficient amount to his daughters, defendant Nos.7-9, in the shape of dowry and other ceremonial and customary festivities. In this regard, sufficient land had also been given to the plaintiff, therefore, there was no Joint Hindu Family. The Will had been executed by Chandu Ram out of his natural love and affection and was without any inducement or fraud or misrepresentation.
5. The learned trial court framed as many as 12 issues but to decide the present appeal, Issue Nos. 1, 3, and 7 are relevant which read as under:
- Whether the plaintiff and the proforma defendants are the owners and in possession of the property in dispute?
- Whether the Will dated 30.4.1980 was validly executed by Chandu Ram in favor of defendants No. 1 to 4
- Whether deceased Chandu had separated all his sons during his lifetime and had given sufficient amount to his daughters in the shape of dowry etc. and land to his sons as alleged in preliminary objection no. 5 of the written statement? If so to what effect?”
6. The learned First Appellate Court affirmed the findings recorded by the trial court and dismissed the suit filed by the plaintiff vide judgment and decree dated 11th May 1987. It was held that the Will had been executed by Chandu Ram in favor of the defendant Nos. 1 to 4, i.e. the sons of Defendant No.5, Sohan Lal and was not surrounded by suspicious circumstances.
7. In the second appeal, the learned High Court allowed the appeal filed by the plaintiff holding that the Will dated 30th April 1980 was surrounded by suspicious circumstances. The substantial question of law framed by the High Court was only to this effect. It was argued by the defendants that the finding that the Will stands executed and was not surrounded by suspicious circumstances and has been illegally interfered by the High Court.
8. The High Court had held that only Maha Singh was examined as attesting witness as DW-3 whereas the second attesting witness Azad Singh was not produced, therefore, the Will was not proved. It also held that the Will had been completely misread, misconstrued, and misinterpreted. The High Court found that in the Will, there was no mention of Chandu Ram’s wife and the other son i.e. the Plaintiff, and therefore, such fact was a suspicious circumstance to doubt the genuineness of the Will. The High Court referred to the judgment of the trial court dated 7th December 1981 filed by Chandu Ram to prove that the house and agricultural land were ancestral property though no substantial question of law on the said aspect relating to the nature of the land was framed. In fact, the judgment dated 7th December 1981 (Ex- D-17) in the suit filed by Chandu Ram, has been produced by the respondent with the present appeal. A perusal of the judgment shows that Chandu Ram had asserted partition of the property about 8-10 years back. Plaintiff-Sheo Ram had asserted that he is in joint possession of the property. In the said suit, a decree for permanent injunction was passed restraining the defendant from interfering with the disputed property after returning a finding on Issue No. 5 that a family partition had taken place and that the property cannot be said to be the joint property of the parties. The High Court has not referred to the findings recorded in the suit filed by the Plaintiff-Sheo Ram.
9. It may be noticed that in view of the Constitution Bench judgment of this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. , substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. The said question was examined by this Court in Randhir Kaur v. Prithvi Pal Singh and Others, , wherein, the scope for interference in the second appeal under Section 41 of the Punjab Courts Act applicable in the States of Punjab and Haryana was delineated and held that- A perusal of the aforesaid judgments would show that the jurisdiction in the second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact.
10. In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of a clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as a witness.
11. In support of the findings recorded by the High Court, Mr. Manoj Swarup, learned senior counsel for the plaintiff-respondent argued that in terms of section 69 of the Indian Succession Act, 1925, a Will is required to be attested by two witnesses who have seen the testator and in which the testator and two of the attesting witnesses sign in presence of each other. It is argued that Maha Singh, DW-3 had not deposed that all three were present at the same time, therefore, the finding of the High Court has to be read in that context, when the Will was found to be surrounded by suspicious circumstances as the second attesting witness was not examined. It is also argued that the original Will has not been produced and no application for leading secondary evidence was filed. Therefore, the secondary evidence could not be led by the defendant to prove the execution of the Will.
12. Section 65(c) of the Indian Evidence Act, 1872 is applicable in the facts of the present case as the defendants asserted that the original Will is lost.
13. The defendants produced a certified copy of the Will obtained from the office of the Sub-Registrar. The defendants also produced the photocopy of the Will scribed by DW 4- D.S. Panwar.
14. In another judgment reported as Aher Rama Gova & Ors. v. State of Gujarat , the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. This Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.
15. Even though the aforesaid judgment is in respect of the loss of a sale deed, the said principle would be applicable in respect of a Will as well, subject to the proof of the Will in terms of Section 68 of the Evidence Act. In the present case as well, the Will was in possession of the beneficiary and was stated to be lost. The Will is dated 30th April 1980 whereas the testator died on 15th January 1982. There is no cross-examination of any of the witnesses of the defendants in respect of loss of original Will. Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff, but the only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence.
16. In a judgment reported as M. Ehtisham Ali for himself and in place of M. Sakhawat Ali, since deceased v. Jamna Prasad , the appellants-plaintiffs filed a suit on the basis of a sale deed. During the trial, the stand of the plaintiffs was that the original sale deed was lost but since it was registered, secondary evidence by way of a certified copy prepared by the office of the Registrar was produced. It was not disputed that the copy produced was not the correct copy of the registered document. The suit was dismissed for the reason that the plaintiffs have not succeeded in satisfactorily establishing the loss of the original sale deed. The Court held as- It is, no doubt, not very likely that such a deed would be lost, but in ordinary cases, if the witness in whose custody the deed should be deposed to its loss unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. There is no doubt that the deed was executed, for it was registered, and registered in a regular way, and it is the duty of the registrar, before registering, to examine the grantor or someone whom he is satisfied is the proper representative of the grantor before he allows the deed to be registered.”
17. In the present case, a close reading of the will indicates its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons is apparent from the will itself…”
18. In view of the above, we find that the High Court has erred in law in interfering with the concurrent findings of fact recorded by both the Courts below. The entire judgment runs on the misconception of law and is, therefore, not sustainable in law. The same is set aside and the decree of the First Appellate Court is restored. Accordingly, the appeal is allowed and the suit is dismissed.
. Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors., (2016) 6 SCC 157.
. Randhir Kaur v. Prithvi Pal Singh and Others, Civil Appeal No. 5822 of 2019 decided on 24th July 2019.
. Aher Rama Gova & Ors. v. State of Gujarat, (1979) 4 SCC 500.
. M. Sakhawat Ali, since deceased v. Jamna Prasad Ors., AIR 1922 PC 56.