Punjab-Haryana High Court
Piara Singh And Others vs Harjinder Singh And Others on 14 August, 2013
Author: Surinder Gupta
Bench: Surinder Gupta
RSA No. 688 of 1993(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA HIGH COURT
AT CHANDIGARH
Date of Decision: 14.08.2013
RSA No. 688 of 1993 (O&M)
Piara Singh and others
----Appellants
Versus
Harjinder Singh and others
-----Respondents
CORAM: HON'BLE MR. JUSTICE SURINDER GUPTA Present: - Mr. Bikramjit Arora, Advocate for the appellants.
Mr. Kuldeep Sanwal, Advocate For the respondents 1 To be referred to the Reporters or not?
2 Whether the Judgment should be reported in the Digest? SURINDER GUPTA, J This Regular Second Appeal has arisen out of the judgment dated 16.12.1992 passed by the First Appellate Court allowing the appeal filed by defendants-respondents against the judgment dated 07.05.1988 passed by the Trial Court whereby the suit of the plaintiffs- appellants was decreed.
(2) Bhajan Kaur wife of Labh Singh @ Teja Singh (since deceased) now represented by the LRs Piara Singh and others-appellants in the present Regular Second Appeal, had filed the suit for joint possession of 1/3rd share out of the land in dispute measuring 205 Kanals 4 Marlas situated in village Sarhali Kalan, Tehsil Taran Tarn as fully detailed in the head note of the plaint. As per the plaintiffs, the suit land was Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -2- owned by Labh Singh @ Teja Singh, who was earlier married with Santo. The said Santo died in the year 1945 and thereafter, Labh Singh @ Teja Singh married Bhajan Kaur in the year 1946. From this marriage a son, namely, Bhagwant Singh was born. The pedigree table given below will help to explain the relationship of the parties to the suit:
Labh Singh @ Teja Singh Santo Bhajan Kaur (wife) (pre-deceased widow) Sito Amar Kaur Bhagwant Singh Daughter Daughter (deceased) Paramjit Singh Harjinder Balwinder Angrej Singh Singh Singh (3) Labh Singh @ Teja Singh died on 12.09.1984 and the plaintiff has inherited her 1/3 share in the suit property. Paramjit Singh, Harjinder Singh, Balwinder Singh and Angrej Singh-
defendants (respondents) alleged that Labh Singh @ Teja Singh executed a Will in their favour with regard to the suit land. They have also got the mutation with regard to the land of Labh Singh @ Teja Singh entered and sanctioned in their favour at the back of the plaintiff and on the basis of that mutation the aforesaid defendants No. 1 to 4 started threatening to alienate the suit land.
(4) The defendant No. 7 did not appear to contest the suit and was proceeded ex-parte. Defendant No. 5-Sito denied the assertions made in the plaint but admitted the death of Labh Singh @ Teja Singh. Defendant No. 1 initially appeared but later on, he was proceeded ex-parte. The defendants No. 2 to 4 in the Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -3- written statement denied the marriage of Labh Singh @ Teja Singh with the plaintiff. They propounded a Will dated 04.09.1984, alleged to have been executed by Labh Singh @ Teja Singh in favour of defendant Nos. 1 to 4. The pleadings of the parties led to the framing of the following issues:
"1. Whether Bhajan Kaur lawfully wedded to Labh Singh in 1946? OPP
2. Whether Piara Singh is lawful attorney of Bhajan Kaur? OPP
3. Whether the plaintiff is entitled to joint possession of 1/3rd share of the suit land? OPP.
4. Whether Teja Singh executed a registered will dated 04.09.1984 in favour of defendants No. 1 to
4. If so, its effect? OPD.
5. Relief."
(5) The suit of the plaintiff was decreed by the Trial Court and defendant Nos. 1 to 4 were restrained from alienating the suit land. Bhajan Kaur was held to be legally wedded wife of Labh Singh @ Teja Singh and the Will of Labh Singh @ Teja Singh dated 04.09.1984 was held to be a suspicious document and was discarded.
(6) Defendant Nos. 1 to 4 preferred an appeal against the judgment and decree of the Trial Court and vide judgment dated 16.12.1992, the First Appellate Court accepted the appeal and dismissed the suit of the plaintiff. However, the marriage of Bhajan Kaur with Labh Singh was held to be legal. The Will dated 04.09.1984 was held to be legal and valid Will executed by Labh Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -4- Singh @ Teja Singh bequeathing the entire suit land on defendants No. 1 to 4.
(7) I have heard learned counsel for the parties. The dispute in this case relates to the estate of Labh Singh @ Teja Singh. The relationship of the parties to the suit is not in dispute. Labh Singh @ Teja Singh was earlier married with Santo and had two daughters from that marriage. He died on 12.09.1984. The only dispute in between the parties is, as to whether the inheritance of Labh Singh @ Teja Singh has to devolve upon all the legal heirs on the basis of natural succession or on the basis of the Will dated 04.09.1984.
(8) The Trial Court while recording the findings with regard to genuineness of the Will dated 04.09.1984 has observed as follows:
(a) There is no mention of Bhajan Kaur-plaintiff, who was wife of Labh Singh, in the Will and no reason has been given for discarding her.
(b) Labh Singh @ Teja Singh was 70/75 years of age at the time of the execution of the Will and died due to paralysis in the house of Tralok Singh Sarpanch of Village Ratoke as stated by Joginder Singh marginal witness of the Will (DW-1)
(c) Labh Singh @ Teja Singh was not enjoying good health before his death and as per defendant Agrej Singh (DW-2), he remained ill for 3-4 days before his death.
Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -5-
(d) There is no pleadings or evidence that defendants No. 1 to 4 have either been serving Labh Singh @ Teja Singh or residing with him.
(e) Sito d/o Labh Singh @ Teja Singh has denied the execution of the Will and termed it as fictitious.
Paramjit Singh her son is one of the beneficiaries of the Will and there was nothing on file to suggest that she was not on good terms with her son.
(9) The First Appellate Court held the Will executed by Labh Singh @ Teja Singh as valid with the observation as follows:
(a) The testator died 8 days after the execution of the Will and this is quite sufficient period in between the execution of the Will and his death.
(b) That there is no evidence that the testator was not in sound disposing mind at the time of the execution of the Will.
(c) The fact that Bhajan Kaur has not been given any share in the property, is not a suspicious circumstance as it is normal tendency of the agriculturists in Punjab that their land go only to the male descendants.
(10) Learned counsel for the appellant has argued that the Will dated 04.09.1984 is not a registered document but is surrounded by suspicious circumstances, which the propounder of the Will has failed to dispel. This fact is admitted that the deceased had two daughters, namely, Sito and Amar Kaur. The Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -6- deceased had referred to his daughters Amar Kaur and Sito in the Will. Sito had appeared as witness and has denied the execution of the Will by her father even though her son Paramjit Singh is the beneficiary, as per Will of Labh Singh @ Teja Singh. Sito has stated that she is on good terms with Paramjit Singh. DW-1 Joginder Singh one of the marginal witnesses of the Will has stated that Labh Singh @ Teja Singh died in Village Ratooke in the house of Tralok Singh Sarpanch due to attack of paralysis. Tralok Singh Sarpanch is the father-in-law of Harjinder Singh, one of the beneficiaries of the Will. He was present at the time of the execution of the Will as stated by Angrej Singh DW-2, who is also one of the beneficiaries of the Will and brother of Harjinder Singh.
The points raised by the trial Court terming the Will as suspicious, have not been referred by the First Appellate Court. It is mentioned in the Will that Labh Singh @ Teja Singh was residing with beneficiaries of the Will and they had been serving him. This fact is neither pleaded nor there is evidence to this effect. He has relied upon the judgment of Hon'ble the Supreme Court in the 135 Ram Piari case of Bhagwan Kaur v. Kartar Kaur 1994 (5) SCC 135; v. Bhagwant and others 1990(3) SCC 364;
364 Guro v. Atma Singh.
1992 (2) SCC 507 and Sardara Singh and others v. Atma Singh and others 1990 (1) CurLJ 668.
668(11) Learned counsel for the respondents has argued that the First Appellate Court in para 11 and 12 of the judgment has elaborately dealt with suspicious circumstances pointed out by the trial Court. The Court has taken note of the fact that it is a tradition in the agriculturists, in Punjab that they prefer the property to remain with the male heirs instead of giving the same Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -7- to the female heirs. He has even disinherited his daughters Amar Kaur and Sito, despite making their mention in the Will (12) The substantial question of law which arises in this appeal is whether the finding about the genuineness of the Will as recorded by the First Appellate Court are perverse and not based on proper appreciation of law and facts of the case? (13) As to whether the Will is genuine document or not has to be decided on the facts of each case. The facts of the case and surrounding circumstances coupled with the quality of evidence are the factors to be taken into consideration while assessing the authenticity and genuineness of the Will. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 Hon'ble the Supreme Court has observed as under:
"It is obvious that for deciding material questions of fact which arise, in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -8- nature and quality of the evidence adduced by the parties."
(14) The Will dated 04.09.1984 is a registered document and the defendants have examined Joginder Singh DW-1 marginal witness of the Will and Jaspal Singh DW-4, the scriber of the Will. In the case of Dharamadas Mondal and others v. Kashi Nath De, AIR 1959 Calcutta 243, 243 it was observed as under:
"115. The mere registration of a Will leads only to a presumption about the validity of the proceedings which took place before the Registrar. It does not have any reference to antecedent proceedings regarding the actual writing of the Will or the mental capacity of the testator or the signing of the Will by the attesting witnesses.
116. A similar view expressed by a Division Bench of this Court in Prem Chand v. Mool Chand etc. 1983 RLR 522. It was held that the presumption about the validity of a registered will can be displaced by proof of suspicious circumstances."
(15) The mere fact that the will dated 04.09.1984 is a registered document, ipso-facto is not a reason to believe it to be a genuine document depicting the wish of Teja Singh with regard to inheritance of his estate.
(16) One of the witnesses examined by defendants, namely DW-5, Gurbax Singh has stated that 'Labh Singh @ Teja Singh knew how to sign and read newspapers'. The will in question bears the thumb impression of Labh Singh @ Teja Singh. Though Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -9- there is no evidence that Labh Singh @ Teja Singh was having feeble health but the factual circumstances reflect that he was not keeping the good health at the time of execution of the Will. He had died due to attack of paralysis that too in the house of Tralok Singh, Sarpanch who is none-else than father-in-law of Harjinder Singh, beneficiary of the Will. He died within 8 days of the execution of the Will. All these facts and circumstances coupled with the fact that in the Will there is no mention of Bhajan Kaur wife of testator, create a suspicion that the Will is not a genuine and valid document. This argument may have some substance that the agriculturists in Punjab avoid giving share in their landed properties to female heirs. No share was given to Sito and Amar Kaur daughters of deceased but the fact to be noted is that names of both daughters are mentioned in the Will and the property has been given to their children. If this was in the mind of Labh Singh @ Teja Singh that he had not to give his property to any female legal heirs, in that case he could certainly mention the name of his wife Bhajan Kaur in the Will and deny any share in his property by giving reasons on the same pattern as he had done with regard to his daughters but at the same time, made some arrangement for her subsistence. In the case of Gurdial Kaur & another v. Chand Kaur (deceased) through LRs 2012 (3) CCS 111, 111 the executants had deprived of his widow and daughter in the Will executed in favour of his sister and the Will was held as surrounded by suspicious circumstances. In Bhagwan Kaur's Kaur's case (supra), (supra) no provision was made in the Will for the widow of the testator, the same was held to be a suspicious circumstance. In Ram Piari's case (supra), the daughter was disinherited in the Will executed by Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -10- the father a day before his death and same was held to be a suspicious circumstance. In that case also the property was bequeathed in favour of sons of her only sister. In Guro's case (supra), (supra) it was held to be a suspicious circumstance that the Will did not bear the signature of the legatee despite the fact the he was literate and had died within 8 days of the execution of the Will.
(17) In the Will (Ex-D-1) the testator has given the reason for executing the Will in favour of Harjinder Singh and others as he was living with them and that they were serving him. This fact is totally missing either in the pleadings or evidence that the deceased was living with any of the beneficiary or they were serving him. It is nowhere the case of the beneficiary that the deceased had strained relation with his wife Bhajan Kaur and was living away from her. This reflects that the recitals in the Will are not genuine and beyond suspicion. This fact in itself is a good ground to discard the Will.
(18) From the above discussion of the facts and circumstances leading to the execution of the Will (Ex. D-1), I am of the considered opinion that the propounder of the Will have utterly failed to dispel the suspicious circumstances surrounding the execution of the Will. This Will cannot be described as genuine document reflecting the testament of the deceased regarding the inheritance of his Estate. The argument raised by the First Appellate Court dispelling suspicious circumstance surrounding the Will, are not tenable. Even if an agriculturist in Punjab has the instinct to keep the landed property with the male Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh RSA No. 688 of 1993(O&M) -11- heirs in the family, he will not leave his wife in lurch, particularly when he has no son or daughter from that wife to take care of her after his death. In this case, Labh Singh had no living son or daughter from his second wife, Bhajan Kaur and his entire property, as per will had bestowed on the sons of his daughters making no provision for his wife's subsistence, give credence to the observations of the trial Court that the Will dated 04.09.1984 is not reflective of genuine testament of the deceased Labh Singh. (19) Even Sito one of the daughters of the testator has described the Will to be a fictitious document despite the fact that her son Paramjit Singh is also one of the beneficiaries. She could have no reason or motive to term the will of her father as a fictitious one.
(20) In view of the discussion above, I am of the considered opinion that the judgment & decree of the First Appellate Court, suffers from legal and factual infirmities. The substantial question of law as framed, is decided in favour of the appellants. The judgment and decree dated 16.12.1992 passed by the First Appellate Court is set aside and that of the Trial Court is upheld.
The Regular Second Appeal is allowed with costs.
(SURINDER GUPTA) JUDGE 14.08.2013 Atul Atul Kumar Tripathi 2013.08.16 12:25 I attest to the accuracy and integrity of this document Chandigarh