RSA-1298-2019 (O&M) - 1 -

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

238

RSA-1298-2019 (O&M)

Kirpal Singh ...Appellant(s)

Vs.

Narinder Singh ...Respondent(s)

The date when the judgment is reserved: 10.02.2026

The date when the judgment is pronounced: 13.02.2026

The date when the judgment is uploaded on the

website:

13.02.2026

Whether only operative part of the judgment is

pronounced or whether the full judgment is

pronounced:

Full

judgment

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA

Present:-Mr. S.S.Rangi, Senior Advocate with

Mr. Didar Singh and Mr. G.S.Kohli, Advocates

for the appellant.

Mr. Deepak Bhardwaj, Advocate

for the respondent.

NIDHI GUPTA, J.

Defendant is in Second Appeal against the concurrent

judgments and decrees of learned District Courts; whereby suit filed by

the plaintiff/respondent for recovery of Rs.9,92,835/- on the basis of

Pronote and Receipt dated 18.09.2007, has been decreed by both District

Courts.

2. It was pleaded in the plaint that on 18.09.2007

defendant/appellant had borrowed a sum of Rs.8,53,000/- from Khem

Singh, father of the plaintiff. It was averred that appellant had executed

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Pronote and Receipt dated 18.09.2007 against the said loan amount.

Appellant had also agreed to pay interest of 2% per month. However,

Khem Singh, father of the plaintiff had died on 03.09.2008. During his

lifetime, Khem Singh had executed a Will dated 12.07.2008 on the

strength of which, plaintiff was entitled to recovery of the said amount. It

was alleged that plaintiff had visited defendant number of times with a

request to repay the amount but to no avail. Accordingly, present suit was

filed on 12.02.2009.

3. Upon notice, defendant had appeared and resisted the suit

by filing written statement; wherein it was admitted that the appellant

had borrowed a sum of Rs.8,50,000/- from Khem Singh. Defendant also

admitted that Pronote and Receipt dated 18.09.2007 were executed by

him in favour of Khem Singh. However, it was denied that the loan was still

outstanding. It was stated that sum of Rs.8,50,000/- was duly repaid by

the defendant to Khem Singh on 08.04.2008 in respect of which Writing

dated 08.04.2008 was executed by Khem Singh in the presence of the

witnesses. It was pointed out in the written statement that in the Writing

dated 08.04.2008, Khem Singh had duly mentioned that original Pronote

and Receipt were lost and in case original was found, no case would be

filed against the defendant as the amount already stood repaid. It was

contended that therefore, question of demanding amount by the plaintiff,

does not arise. Accordingly, dismissal of the suit was prayed for.

4. In replication, averments made in the written statement were

denied and those made in the plaint, were reiterated.

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5. From the pleadings of the parties, following issues were

framed by the learned Trial Court:-

“1- Whether defendant borrowed Rs. 8,51,000/- from Khem

Singh father of the plaintiff and executed pronote and

receipt? OPP

2- If issue no.1 is proved, plaintiff is entitled to recover the

suit amount along with interest, if so at what rate? OPP

3- Whether suit is bad for non joinder of parties? OPD

4- Whether suit is not maintainable? OPD

5- Relief.”

6. Upon appraisal of the pleadings and the evidence led by the

parties, issue No. 1 was decided in favour of the plaintiff and against the

defendant; issue No.2 in favour of the plaintiff and against the defendant;

issue No. 3 against the defendant and in favour of the plaintiff; issue No. 4

against the defendant and in favour of the plaintiff; and accordingly vide

judgment and decree dated 04.08.2012, the ld. Additional Civil Judge

(Senior Division), Kharar had decreed the suit of the plaintiff alongwith

interest @ 9% PA w.e.f. 19.9.2007 till the filing of the suit and pendent-lite

interest @ 6% PA from the date of filing of the present suit till date of

decree and future interest @ 6% PA from the date of decree till the actual

realization of decretal amount.

7. The Civil Appeal filed by the appellant was dismissed with

costs by the learned Additional District Judge, SAS Nagar (Mohali) vide

judgment and decree dated 30.05.2015. Hence, present second appeal by

defendant.

8. It is inter alia submitted by ld. Senior Counsel for the

appellant that the respondent/plaintiff has duly admitted in his evidence

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that Khem Singh was a regular money lender. It is submitted that

therefore, Khem Singh was required to have a moneylending license in

terms of Section 3 of the Punjab registration of Money Lenders Act, 1938

(hereinafter referred to as “the Act, 1938”). Admittedly, Khem Singh,

possessed no such license. As such, Civil Suit filed by the plaintiff was not

maintainable.

9. Learned Senior Counsel further submits that plaintiff is basing

his claim on the Will dated 12.07.2008 Ex.P3, as per which, respondent

alone was appointed as sole beneficiary. Ld. Senior Counsel contends that

first and foremost, the veracity of the said Will is seriously doubtful as the

same is not a registered Will. Furthermore, the said Will cannot be relied

upon also for the reason that plaintiff has failed to array the other legal

heirs of Khem Singh as co-plaintiffs. Moreover, the said Will was not

proved by the respondent in accordance with law. Even no legal issue was

framed by the learned Trial Court regarding the execution and validity of

the Will Ex.P3. Learned Senior Counsel argues that in view of the fact that

the plaintiff was basing his claim and filing the suit on the foot of the Will,

hence, it was mandatory on the part of the respondent to prove the same

in accordance with law.

10. Learned Senior Counsel further points out that the Will

makes for interesting reading as testator Khem Singh has anticipated his

accident and has written in the Will that “I do work of property dealing. In

this work I often have to go out in buses/cars. Nowadays there is a lot of

traffic on roads and loss of human life can occur at any point of time.”

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Learned Senior Counsel contends that this very writing points to the fact

that after the death of Khem Singh, the plaintiff manufactured this Will.

11. Learned Senior Counsel also points out that in the Will itself,

it is mentioned by Khem Singh that plaintiff is entitled to recovery of

money which testator has lent to anybody through Pronote or through

any other document. It is contended that from this fact also, it is

established that Khem Singh was money lender; and therefore, it was

essential and necessary for Khem Singh to have obtained license of money

lending from the concerned authorities under the Act, 1938.

12. Learned Senior Counsel further submits that plaintiff has also

failed to satisfy requirements of Section 214 of the Indian Succession Act.

For this reason, as well, the Civil Suit of the plaintiff was not maintainable.

It is argued that it is unquestioned proposition of law that pronote and

receipt relating to the loan money is moveable property. Under these

circumstances, it was must on the part of the respondent either to obtain

the letter of administration and succession obtained by certificate from

the court. But no such certificate was obtained by respondent. Therefore,

no relief could be given to respondent on the basis of pronote and receipt.

13. Learned Senior Counsel for the appellant submits that Scribe

of the Pronote PW2 has admitted that the Pronote does not bear the

signature of Khem Singh. It is submitted that Pronote Ex.P1 and the

Receipt Ex.P2 do not bear the signatures of Khem Singh. It is pointed out

that Scribe PW2 has categorically stated in his evidence that Khem Singh

had signed the Pronote; whereas Pronote Ex.P1 and Receipt Ex.P2

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produced by the plaintiff do not bear the signatures of Khem Singh; which

shows that Ex.P1 and Ex.P2 are fabricated. Learned Senior Counsel

contends that therefore, Pronote has been fraudulently produced by the

plaintiff and is not the same which was previously executed between the

appellant and Khem Singh.

14. Learned Senior Counsel lastly reiterates that the appellant

had paid loan amount of Rs.8,50,000/- to Khem Singh vide Writing dated

08.04.2008 Ex.D1. It is submitted that in the said Writing, Khem Singh had

duly recorded that the original Pronote is lost.

15. It is accordingly prayed that the present Appeal be allowed;

and the impugned judgments and decrees of District Courts be set aside.

16. Per contra, learned counsel for the respondent/plaintiff

controverts submissions of the appellant and submits that probate in

terms of Section 214 of the Indian Succession Act is not required in the

present case, as plaintiff had the Will dated 12.07.2008 in his favour. It is

submitted that respondent had derived his right from the said Will, and

therefore, probate in terms of Section 214 of the Succession Act, was not

required.

17. It is further submitted that in view of the fact that the

appellant has admitted the loan and has not denied the Pronote, the

contention of the appellant in respect of requirements of Section 3 of the

Act, 1938 are negated and also rendered irrelevant. It is further contended

that the Pronote is not required to bear the sign of the lender, and

therefore, Ex.P1 and Ex.P2 have been rightly relied upon by learned

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District Courts in decreeing the suit of the plaintiff. Learned counsel for

the respondent also submits that in any event, appellant has totally failed

to prove his case/the writing dated 8.4.2008 as the alleged witnesses of

the Receipt dated 08.04.2008 Ex.D1 Amar Singh and Swarn Singh and

DW1 and DW3 respectively had only submitted their Affidavits and had

not turned up for cross-examination. It is accordingly prayed that the

present Appeal be dismissed; and the judgments of the learned District

Courts be upheld.

18. Learned Senior Counsel for the appellant rebuts submissions

of learned counsel for the respondent by submitting that witnesses to the

Receipt Ex.D1 Amar Singh and Swarn Singh and DW1 and DW3

respectively had failed to turn up for cross-examination as they were won

by the plaintiff. It is submitted that the appellant has only admitted that

Pronote was executed; and has nowhere admitted the Pronote Ex.P1 and

Receipt Ex.P2 produced by the plaintiff. It is further submitted that no

finding has been given by both the Courts below regarding the Probate

and requirement of Section 214 of the Indian Succession Act. He reiterates

prayer that the present appeal be allowed; and the impugned judgments

and decrees of the learned District Courts be set aside.

19. No other argument is raised on behalf of learned counsel for

the parties. I have heard learned counsel and perused the case file

alongwith District Courts Record in minute detail. I find merit in the

submissions advanced on behalf of learned counsel for the appellant.

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20. The first contention on behalf of the appellant is that the

present suit is not maintainable as provision of Section 3 of the Punjab

Registration of Money Lender’s Act, 1938 has not been complied with.

Said Section 3, reads as follows: -

“3. Notwithstanding anything contained in any other

enactment for the time being in force, a suit by a money-

lender for the recovery of a loan, or an application by a

money- lender for the execution of a decree relating to a

loan, shall, after the commencement of this Act, be dismissed,

unless the money-lender--

(a) at the time of the institution of the suit or

presentation of the application for execution; or

(b) at the time of decreeing the suit or deciding the

application for execution-

(i) is registered; and

(ii) holds a valid licence, in such form and

manner as may be prescribed; or

(iii) holds a certificate from a Commissioner

granted under section 11, specifying the loan in

respect of which the suit is instituted, or the

decree in respect of which the application for

execution is presented; or

(iv) if he is not already a registered and licensed

money-lender, satisfies the Court that he has

applied to the Collector to be registered and

licensed and that such application is pending:

provided that in such - a case, the suit or

application shall not be finally disposed of until

the application of the money-lender for

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registration and grant of licence pending before

the Collector is finally disposed of.”

21. A bare reading of the above provision shows that for any

person, who lends money on regular basis, it is mandatory as per law to

obtain license of money lending from the concerned authorities. As per

Section 3 of the said Act, all suits and applications by money lender are

barred unless money lender is registered and licensed. It is admitted fact

on record that Khem Singh did not possess a money lending license.

Admittedly, respondent has never placed on record any money lending

license obtained by his father Khem Singh. It has been contended by the

plaintiff that Khem Singh was not a money lender. However, the

respondent while appearing as PW1 has admitted in his cross-examination

that “He used to lend money to people. I know only five to ten persons to

whom he has lend money as loan. …… I do not remember year, month and

date when I visited the house of Kirpal Singh with my father for making

demand of money.” From this deposition, it is clear that plaintiff himself

has admitted that Khem Singh used to lend money on regular basis. In this

view of the matter, it was mandatory as per law for Khem Singh to have

obtained money license under the Act, 1938. Therefore, as per Section 3

of the Act, 1938, suit of the plaintiff was barred.

22. In this regard, reference may be made to a judgment of this

Court in Balbir Singh v. Raj Krishan (P&H) : Law Finder Doc Id # 666069,

the relevant paras of which read as under: -

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“21. Another aspect of this case in the light of case set up by

the complainant is that he used to advance loan to such

agriculturalists, who sell or promise to sell their agricultural

produce through him and interest was charged as per

prevalent rate in the area of Mandi Abohar. It means that the

complainant was dealing in money lending business to the

public at large, however, is not having the money lender's

licence. It would be apposite to reproduce

Sections 3 and 4 of the Punjab Money- Lender's Act, 1938 :-

"Suits and applications by money-lenders barred, unless

money-lender is registered and licensed.

3. Notwithstanding anything contained in any other enactment

for the time being in force, a suit by a moneylender for the

recovery of a loan, or an application by a money-lender for the

execution of a decree relating to a loan, shall after the

commencement of this act, be dismissed, unless the money-

lender-

(a) at the time of the institution of the suit or presentation of

the application for execution; or

(b) at the time of decreeing the suit or deciding the application

for execution-

(i) is registered; and

(ii) holds a valid licence, in such form and manner as may be

prescribed; or

(iii) holds a certificate from a Commissioner granted under

section 11, specifying the loan in respect of which the suit is

instituted, or the decree in respect of which the application for

execution is presented; or

(iv) if he is not a registered and licensed moneylender, satisfies

the Court that he has applied to the Collector to be registered

and licensed and that such application is pending; provided

that in such a case, the suit or application shall not be finally

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disposed of until the application of the money-lender for

registration and grant of license pending before the Collector is

finally disposed of.

Registration of Money-lenders

4. Every money-lender may apply for registration of his name

at the office of the Collector of the District; and his name shall

be registered on furnishing such particulars as may be

prescribed and on payment of a fee of L 5."

22. The said sections provide that no money lender shall carry

on the business of advancing loans unless he gets himself

registered under sub-section (i). Any money lender, who

contravenes these provisions, shall be liable on conviction to a

fine not exceeding one thousand rupees for the first offence

and two thousand rupees for every subsequent offence in this

direction. As per the above referred provisions, a person is only

competent to advance agricultural loan if he holds the valid

licence/registration certificate under the provisions of the

Punjab Money Lender's Licence Act, 1938. In the present case,

the complainant is not having any such licence. Without having

the aforesaid licence, the advancement of loan by the

complainant to the petitioner-accused is not only illegal, but at

at the same time, he can also be prosecuted. The contention of

learned counsel for the respondent that petitioner cannot raise

a issue for the first time before this Court that the respondent

is not having any licence under the Money-Lender's Act, is not

sustainable, as this is a legal issue and can be raised any any

stage. It has been admitted by the respondent in the complaint

that he used to advance loans to the agriculturalists, who sell

or promise to sell their agricultural produce through him and

interest was charged as per prevalent rate in the area of Mandi

Abohar.”

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23. The above said view has been reiterated by this Court in

Mewa Singh v. Vipin Kumar, (P&H) : Law Finder Doc Id # 794806. The

relevant paras of the said judgment are as under: -

“10. Having considered the submissions made by learned

counsel for the parties, this Court is of the considered view

that the following substantial questions of law arise for

determination in the present appeal:-

(i). Whether the plaintiff-firm was required to obtain the license

under the Punjab Registration of Money Lender's Act, 1938

Act?

(ii). Whether the plaintiff firm was in fact, carrying on money

lending business without the required license?

(iii). Whether both the Courts below mis-appreciated the

evidence which resulted into erroneous findings?

XXXXXXXXXXXXXXXX

14. Undisputedly, the plaintiffs are doing the business of

Commission Agent under the name and style of 'M/s Satya

Traders' and used to advance loan to such agriculturists who

used to sell or promise to sell their agriculture produce

through it and they used to charge interest thereon. It is

common practise that farmers used to put signatures/thumb

impression on blank papers and cheques at the asking of

Commission agents.

15. As per provisions of Sections 3 and 4 of the Act, no money

lender shall carry on business of advancing loan unless he gets

himself registered under the Act. Such a view was taken by a

Co-ordinate Bench of this Court in Balbir Singh v. Raj Krishan,

2015(2) RCR [Criminal] 812 and while referring to

Sections 3 and 4 of the Act, this Court observed as under:-

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"22. The said sections provide that no money

lender shall carry on the business of advancing loans

unless he gets himself registered under sub-section (i).

Any money lender, who contravenes these provisions,

shall be liable on conviction to a fine not exceeding one

thousand rupees for the first offence and two thousand

rupees for every subsequent offence in this direction. As

per the above referred provisions, a person is only

competent to advance agricultural loan if he holds the

valid licence/registration certificate under the provisions

of the Punjab Money Lender's Licence Act, 1938. In the

present case, the complainant is not having any such

licence. Without having the aforesaid licence, the

advancement of loan by the complainant to the

petitioner-accused is not only illegal, but at the same

time, he can also be prosecuted..."

16. In the present case, the plaintiffs are not having any such

license and without having the aforesaid license, the

advancement of loan by them to the defendant is illegal. Both

the Courts below have completely misread and mis-

appreciated the evidence and completely ignored the legal and

factual position which resulted into erroneous findings.

Accordingly, the substantial questions of law posed in para

No.10 of this judgment are answered in favour of the appellant

and against the respondents.”

24. Thus, the suit of the plaintiff was prima facie not

maintainable. However, this aspect of the matter has not been dealt with

by the learned District Courts, at any stage.

25. Contention of learned counsel for the respondent that the

suit was not barred under Section 3 of the Act, 1938 as appellant had

admitted loan as well as the Pronote and Receipt Ex.P1 and Ex.P2

respectively, is misplaced; as appellant has only admitted that loan was

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taken and Pronote was executed; and has nowhere admitted the Pronote

and Receipt Ex.P1 and Ex.P2 respectively, produced by the plaintiff. On the

contrary, in para 3 of the written statement, appellant has categorically

stated as follows: -

“3. That para no 3 is wrong and not admitted to be correct. In

fact the father of the plaintiff has executed a receipt dated 8-

4-08 of remaining all dues of pronote and receipt dated 1-9-

07 of Rs. 8,50,000/- as payment of pronote and receipt was

lost somewhere with promise that in case original is found no

case will be filed. So the question of demanding amount with

father is wrong and fake one.”

26. Thus, attempt of the respondent to obfuscate the issue is

misguided.

27. Furthermore, plaintiff has sought recovery from the appellant

on the basis of Will dated 12.7.2008 Ex.P-3 allegedly executed by Khem

Singh in favour of the plaintiff. It is to be noted that in the said Will Khem

Singh has admitted lending money to people on regular basis. The Will

Ex.P3 makes for interesting reading. The same is reproduced as under: -

“I, Khem Singh son of Hakam Singh son of Partap Singh am

resident of Village Jhingran Khurd, Tehsil Kharar, District

Mohali.

That currently my age is about 60 Years. I have 3

daughters namely Ravinder Kaur, Amrit Kaur and Rajwinder

Kaur. All three of them are married and are residing at their

matrimonial houses. My son Narinder Singh is also married.

He and his wife look after me and my wife and I am very

happy with care and affection of my son and daughter-in-law.

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That I do work of property dealing. In this work I often have

to go out in buses/cars. Nowadays there is lot of traffic on

roads and loss of human life in accident can occur at any

point of time. Thus, I am executing this will deed on the name

of my son Narinder Singh. Only my son Narinder Singh shall

have right over my property situated in area of Village

Jhingran Khurd and Rurki Kutchi, Tehsil Kharar, District

Mohali. If in future I acquire any other property in Punjab or

in India then my son shall have right over that property also.

My son Narinder Singh shall also have right on my bank

balance, balance/deposits in post office and money which I

have lended to anybody through pronote or through any

other document. I assign duty to my son Narinder Singh to

recover my money from borrowers either with mutual

consent or through court. After my death my son Narinder

Singh shall fulfill his duties towards his mother and sisters.

After hearing and admitting the contents of this

will deed as correct I have given my signature in presence of

witnesses.

Date: 12.07.2008

Deed Writer: Sd/- Balwinder Singh S/o Darbara Singh

Executant: Sd/ Khem Singh

Witness No. 1:- Sd/-& Seal/- Lambardar Singhpura 101

Witness No. 2: Sd/ Kulvinder Singh S/o Bir Singh R/o Village

Jhingran Khurd, Mohali.”

(Emphasis mine)

28. It is spooky that the Will was allegedly executed on

12.07.2008; whereas testator had died less than two months thereafter

on 03.09.2008 in a road accident. Therefore, Khem Singh would have to

be a clairvoyant to record in the Will dated 12.07.2008 that “Nowadays

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there is lot of traffic on roads and loss of human life in accident can occur

at any point of time.” Furthermore, admittedly, the said Will is not

registered therefore, presumption of truth cannot be attached to the

same. It is also my view that as the plaintiff was basing his claim upon the

said Will, it was necessary for him to prove the same as per provision of

Indian Evidence Act. All these factors lend credence to the version of the

appellant that the Will dated 12.07.2008 Ex.P3 has been fabricated by the

plaintiff after the death of Khem Singh.

29. Further, ld. Senior Counsel for the appellant has thwarted

reliance of the respondent on the Will dated 12.7.2008 Ex.P-3 in view of

Section 214 of the Indian Succession Act, 1925 which reads as under: -

“214. Proof of representative title a condition precedent to

recovery through the Courts of debts from debtors of

deceased persons.-(1) No Court shall-

(a) pass a decree against a debtor of a deceased

person for payment of his debt to a person claiming on

succession to be entitled to the effect of the deceased

person or to any part thereof,

(b) proceed, upon an application of a person claiming

to be so entitled, to execute against such a debtor a

decree or order for the payment of his debt, except on

the production, by the person so claiming of-

(i) a probate or letters of administration

evidencing the grant to him of administration to

the estate of the deceased, or

(ii) a certificate granted under section 31 or

section 32 of the Administrator- General's Act,

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1913 (3 of 1913), and having the debt

mentioned therein, or

(iii) a succession certificate granted under Part X

and having the debt sepcified therein, or

(iv) a certificate granted under the Succession

Certificate Act, 1889) (7 of 1889), or

(v) a certificate granted under Bombay

Regulation No. VIII of 1827, and, if granted after

the first day of May, 1889 having the debt

specified therein.”

30. Thus, in light of Section 214 of the Indian Succession Act по

suit is maintainable against debtor of deceased person unless the person

claiming to be so entitled, furnishes a Probate, or Letter of Administration,

or a Succession Certificate granted under Part X of the Indian Succession

Act. It is not denied by learned counsel for the plaintiff that all the above

said conditions as contained in Section 214(1)(b) have not been complied

with by the respondent. Contention of learned counsel for the plaintiff

that Probate under Section 214 was not required as the respondent has

derived his right from the Will, is misplaced and contrary to the express

mandate of the above said provision. For this reason, as well, suit of the

plaintiff was not maintainable.

31. This is especially so in view of the fact that the appellant in

his written statement has taken a clear objection as follows: -

“2. That para no 2 is wrong regarding 'will' in case of will the

plaintiff can't file present suit without having probate or

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succession certificate and without impleading L.R's of Khem

Singh.”

32. Thus, even though a specific objection had been taken by the

appellant in respect of the Will relied on by the respondent, no issue in

this regard was framed by the learned Trial Court; and even no finding in

respect of this objection has been returned by both the learned District

Courts. Thus, both the learned District Courts have failed to deal with an

important aspect of the matter. The impugned judgments and decrees

cannot be sustained for this reason as well.

33. Further, the District Courts have wrongly relied upon Will of

Khem Singh Ex.P-3 when the compliance of Section 68 of Indian Evidence

Act read with Section 63 of the Indian Succession Act has not been made;

as no attesting witness of the Will has been examined. Both the ld. Courts

have wrongly accepted the admission by PW-4 Pritam Kaur (widow of

deceased Khem Singh). It is a well settled rule of law that compliance of

Section 68 of Indian Evidence Act is mandatory, and Section 58 of Indian

Evidence Act would not overrule Section 68 of Indian Evidence Act. PW-4

Pritam Kaur has only accepted the Will and not the due execution of Will.

Hence, Section 214 of Indian Succession Act read with Order 7 Rule 4 of

CPC would reveal that this suit is not maintainable; and hence Issue no.4

has been wrongly dealt with by both the learned Courts below.

34. Furthermore, another specific objection has been raised by

the appellant from the very inception that the suit is bad for non-joinder

of necessary parties when respondent cared not to array the legal heirs of

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Khem Singh as co-plaintiffs. Both the Courts brushed aside this objection

of the appellant by assigning reasons that Khem Singh during his lifetime

executed Will dated 12.07.2008 Ex. P-3 under which respondent alone

was appointed as sole beneficiary and in face of this Will it was not

necessary and essential on the part of the respondent to join the legal

heirs of Khem Singh deceased. Further according to both the courts

below, respondent examined his mother PW-4 Pritam Kaur. Pritam Kaur

was also the attorney holder of her 3 daughters; and said Pritam Kaur

while mounting the witness box made a statement that her 3 daughters

are agreeable to the execution of Will Ex.P-3 in favour of the respondent.

Thus, according to the District Courts, in the face of Will Ex.P-3 and the

statement of PW-4 Pritam Kaur it was not desired from the respondent to

co-array the other legal heirs of Khem Singh as co-plaintiff. But this

reasoning given by both the Courts below is not sound reasoning. Firstly.

no legal issue was framed by the trial court regarding the execution and

validity of the Will Ex. P-3. It is to be appreciated that it was open to the

appellant to question the execution and validity of Will Ex P-3 when

respondent was basing his claim of filing the suit at the foot of Will Ex. P-3.

Moreover, Ex. P-4 is the photocopy of the Special Power of Attorney

allegedly executed by three daughters of Khem Singh in favour of Pritam

Kaur. But said Power of Attorney does not carry even a whisper about the

execution of the Will by Khem Singh in favour of the respondent.

Moreover, the said POA also carries no reference about the admission on

the part of the executants (3 daughters of Khem Singh) regarding the Will

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Ex.P-3. Thus, it was mandatory on the part of the respondent to join the

other legal heirs of Khem Singh as co-plaintiff; and the suit in the absence

of legal heirs is definitely bad, the said legal heirs being the necessary

party.

35. Furthermore, it was the clear and unambiguous defence

taken by the appellant in the written statement that he had returned the

loan money to Khem Singh on 08.04.2008 and in this regard Writing Ex.D1

was drawn, which was duly signed by Khem Singh. Ex.D1 reads as follows:-

“I, Khem Singh son of Sh. Hakam Singh son of Sh. Partap Ram

am resident of Village Jhingran Khurd, Tehsil Kharar, District

Mohali. That I had lended Rs. 8,50,000/-(Rupees Eight Lac

Fifty Thousand Only) to Sh. Kirpal Singh son of Sh. Kura Singh

son of Kandhara Singh resident of Village Budhanpur, Tehsil

Rajpura, District Patiala through pronote dt. 18.09.2007. I

have misplaced the original pronote somewhere at home, but

I have received the afore-mentioned amount of Rs.8,50,000/-

(Rupees Eight Lac Fifty Thousand Only) from afore-mentioned

Sh.Kirpal Singh in cash in presence of witnesses. If in future I

find the original pronote then I shall hand it over to afore-

mentioned Sh. Kirpal Singh and on the basis of said original

pronote I shall not initiate any kind of legal action against Sh.

Kirpal Singh through Panchayat, police or court for recovery

of amount. Both parties have get scribed this

agreement/compromise with mutual consent to make afore-

mentioned pronote dt. 18.09.2007 null and void, for the

purpose of proof. Contents read over, heard, understood and

admitted correct. Date:- 08.04.2008

Executant/Party No. 1: Sd/- Khem Singh

Party No. 2: Sd/- Kirpal Singh

RSA-1298-2019 (O&M) - 21 -

Witness No. 1: Sd/- Swaran Singh son of

Sukhdev Singh resident of Village Budhanpur

Witness No.2:-Sd/- Amar Singh son ofJoginder Singh resident

of Village Budhanpur.”

36. However, the above said Writing has been rejected by both

the learned District Courts on the ground that witnesses Swaran Singh and

Amar Singh, who have witnessed the execution of this document, had

only tendered their affidavits by way of examination-in-chief; however,

they had not stepped into witness box for cross-examination; and,

therefore, the learned District Courts held that affidavits of these

witnesses could not be read into evidence. However, in holding as above,

both the learned District Courts ignored the evidence that Sale Deed

Ex.D2 was admittedly executed by Khem Singh and bears the signatures of

Khem Singh, which signatures tally with the signature of Khem Singh on

Ex.D1. This is visible from the naked eye that the signature on Ex.D1 tallies

with the admitted signature of Khem Singh on Ex.D2. The learned District

Courts have also ignored the fact that Writing Ex.D1 has been executed on

a stamp paper which was purchased by Khem Singh himself.

37. It is also my view that the learned Trial Court was in error in

not framing a specific issue regarding the return of loan money by the

appellant. It is trite law that the primary object of framing issues in a suit

is to ascertain the controversy and rival contentions between the parties.

However, on account of omission on part of the learned Trial Court to

frame a specific issue on the point of return of loan money, the impugned

judgments cannot be upheld. In the absence of a specific issue in this

RSA-1298-2019 (O&M) - 22 -

regard, learned District Courts have failed to appreciate that burden of

proving Ex.D1 could not have been solely put upon the appellant; and

appellant was only required to raise preponderance of probability, which

he discharged by exhibiting Ex.D1. It has also come on record that Ex.D1

was duly put to the plaintiff PW1 as also to Scribe PW3, both of whom

have feigned ignorance regarding the same. In any event, irrespective of

the fact, whether appellant was able to or not able to prove Ex.D-1, case

of the plaintiff has to stand on its own legs and cannot derive from any

weakness of the defendant. In the present case, in view of the factors as

already noticed above, it is clear that suit of the plaintiff was not

maintainable, and therefore, could not have been decreed.

38. As regards the Pronote and Receipt Ex.P1 and Ex.P2

respectively, learned District Courts have also ignored the fact that Scribe

of the Pronote and Receipt namely Balwinder Singh PW2 has categorically

admitted in his cross-examination that “I have seen Ex.P1 and Ex.P2 which

does not bear the signature of Khem Singh.” Contention of learned

counsel for the respondent that is not necessary for the Pronote to bear

the signatures of lenders, is misguided. This would lend credence to the

case set up by the appellant and supported by Khem Singh in his Writing

Ex.D1 that original Pronote and Receipt were lost, and, therefore, Ex.P1

has been fabricated by the plaintiff.

39. This Court is well aware of the legal position that findings of

fact cannot be disturbed by this Court in Second Appeal. However, as is

evident from the discussion above, in the present case the findings of the

RSA-1298-2019 (O&M) - 23 -

District Courts are patently perverse, contrary to the evidence on record,

and based on a flagrant misreading of the evidence on record, while also

ignoring relevant provisions of law. Such findings cannot be sustained.

40. In view of the above discussion, the present Regular Second

Appeal is allowed; and the impugned judgments and decrees of the District

Courts are set aside. Resultantly, the suit of the plaintiff stands dismissed.

41. Pending applications, if any, stand disposed of.

13.02.2026 (NIDHI GUPTA)

Divyanshi JUDGE

Whether speaking/reasoned: Yes/No

Whether reportable: Yes/No