Punjab-Haryana High Court
Kishan Chand vs Smt. Basanti Devi (Died) on 9 November, 1995
Equivalent citations: (1996)113PLR135
JUDGMENT N.K. Kapoor, J.
1. This is plaintiffs' appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendant was accepted thereby dismissing the suit of the plaintiffs.
2. Plaintiffs claimed themselves to have succeeded to the estate of their uncle Jumma Ram alias Jumma who was alleged to have died issueless on the basis of Will dated 1.9.1978 executed in their favour whereby he bequeathed the property in dispute to the plaintiffs. It so happened that on the death of Jumma Ram mutation was sanctioned in favour of Smt. Basanti alleged to be a widow of Jumma Ram and so the plaintiffs approached the Court for setting aside the mutation sanctioned in favour of Smt. Basanti and accepting their claim.
3. Smt. Basanti filed written statement contesting the plaintiffs' claim to succeed to the estate of Jumma Ram. She further denied that he died issueless and was not even married. On the contrary, it was asserted that she was lawfully wedded wife of Jumma and the Will set up by the plaintiffs is mere creation of the plaintiffs and, in fact, no valid Will came into existence'. Otherwise too, the Will is surrounded by mysterious circumstances and hence cannot be acted upon.
4. On the pleadings of the parties, following issues were framed (1) Whether deceased Jumma Ram executed a valid Will in favour of the plaintiffs on 1.9.1978 ? OPP (2) Whether the plaintiffs are in possession of the suit land ? OPP (3) Whether the plaintiffs are entitled to the declaration with consequential relief of permanent injunction ? OPP (4) Whether the suit is not maintainable in the present form ? OPD (5) Whether Basanti defendant is the widow of Jumma Ram deceased ? If so, its effect ? OPD (6) Relief.
5. Issue No. 1 was decided in favour of the plaintiffs. Under issue No. 2, it was held that the plaintiffs are in possession of the suit land after the death of Jumma. Consequently, issue No. 3 too was decided in favour of the plaintiffs. Issue No. 4 was not pressed by the defendant and so was decided against her. Under issue No. 5, it was held that Basanti is the wife of deceased Jumma Ram alias Jumma. Resultantly, the suit of the plaintiffs was decreed declaring them to be the owners in possession of the suit land after the death of Jumma Ram on the basis of Will dated 1.9.1978.
6. The lower appellate Court once again examined the matter on facts as well as on law. On carefully considering the evidence led, the Court came to the conclusion that the Will is surrounded by suspicious circumstances. Specific mention was made of the fact that in the Will there is no mention of his wife Smt. Basanti Devi nor she has been provided with any maintenance. This circumstance was considered to be suspicious. Similarly, the Court highlighted the fact that no reason has been given in the Will as to why Jumma Ram deprived his wife of her legitimate claim to succeed. The Court also noticed that out of the two attesting witnesses one belongs to another village and the other is a labourer i.e. none of the attesting witnesses is a Lambardar, Sarpanch or member of the village Panchayat which further creates a doubt with regard to the authenticity of the document set up by the plaintiffs. Accordingly, the Court held the Will to be invalid and so reversed this finding of the trial Court. Similarly, the Court came to the conclusion that there is no sufficient evidence on record to support the conclusion arrived at by the trial Court that the plaintiffs have come into possession of the suit property after the death of Jumma Ram. Accordingly, the appeal was accepted thereby dismissing the suit filed by the plaintiffs.
7. The appellants have termed the findings of the lower appellate Court to be conjectural and illegal and thus unsustainable in law. According to the counsel for the appellants, the Will dated 1.9.1978 stands duly proved by the statements of the attesting witnesses which otherwise is not surrounded by any suspicious circumstance. Any such testamentary disposition, in fact, displaces the normal course of inheritance but it being a wish of the deceased is honoured unless the same is proved to have been forged, fabricated or otherwise surrounded by suspicious circumstances. In the instant case, there is no such suspicious circumstance to ignore the last wish of the deceased. Merely for the reason that the executant did not make mention of Smt. Basanti who, in fact, was not legally wedded wife of Jumma Ram but only a keep by itself is no ground to discard such a document. Since Smt. Basanti was not a legally wedded wife, there was no basis to stipulate any maintenance amount for her upkeep by the testator.
8. I have heard learned counsel for the appellants, as well as perused the judgments of the Courts below as well as some of the evidence referred to by the counsel for the appellants. The trial Court on the basis of evidence came to the conclusion that Basanti is the widow of Jumma Ram alias Jumma which finding has also been affirmed by the Additional District Judge. This being a finding of fact and otherwise not vitiated is, in fact, not open to challenge in the second appeal. Thus, there is no manner of doubt that Smt. Basanti was legally wedded wife of Jumma Ram alias Jumma. Her status as a wife assumes significance in the context of the present case. Admittedly, plaintiffs are nephews of Jumma Ram and so in case of a normal succession, Smt. Basanti being Class I heir was entitled to succeed to the estate of Jumma Ram alias Jumma. It is in the light of these proved facts that the Will in question has been examined by the" lower appellate Court i.e. whether the same is surrounded by suspicious circumstances and its effect. The Will does not make mention of Smt. Basanti and hence for obvious reason no maintenance amount has been stipulated. It has been the consistent view of this Court as well as of the apex Court that a wife is entitled to maintenance from the estate of her husband. Reason to deny such a maintenance or otherwise to exclude her from her rightful claim not only is to be recorded in the document-Will-but to be justified as well. No such explanation has been given in the Will for her exclusion or for denying her right of maintenance. This by itself is sufficiently suspicious circumstance to ignore the Will. In the present case, the lower appellate Court also noticed that one of the attesting witnesses (not related) belongs to some other village whereas the other is a labourer thereby creating a further suspicion in the document set up by the plaintiffs. The apex Court in case reported as Smt. Jaswant Kaur v. Amrit Kaur and Ors., 1977 PLJ 54 has made mention of the earlier decision of the Court in case reported as H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors., (1959) Supp. 1 SCR 426 wherein the Court highlighted the point to be considered while evaluating the Will and held that though Will is to be proved like any other document yet in a case where the Will is surrounded by suspicious circumstances, it is for the propounder to remove all the legitimate suspicious circumstances before the document can be accepted as the last Will of the testator. The Court further held that it is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of judicial conscience has been evolved. Similarly, in case reported as Ram Piari v. Bhagwant and Ors., (1990-1)97 PLR 639 the Will was held to be surrounded by suspicious circumstances on the solitary ground that no reason had been assigned in the Will for disinheriting the daughter. In this context it was held that although freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. The facts of the case when tested in the light of the above cited judicial pronouncements leaves no manner of doubt that the Will was surrounded by suspicious circumstances and so was rightly held by the lower appellate Court. Consequently, finding no merit in the appeal, the same is dismissed.
No costs.