Punjab-Haryana High Court
Nihal Kaur And Ors. vs Jugraj Singh And Ors. on 28 April, 1997
Equivalent citations: (1997)117PLR95
Author: H.S. Bedi
Bench: H.S. Bedi
JUDGMENT H.S. Bedi, J.
1. This is a defendant's Second Appeal and relates to the validity of the will Ex.P1, allegedly executed by Kartar Kaur on 15th February, 1972. The facts of the case are as under :-
2. One Karam Singh had two wives, Kartar Kaur since deceased, the testator, and Premo. Kartar Kaur had no child from her husband whereas Premo had one son Chanan Singh who was married to Nihal Kaur. Nihal Kaur had two daughters from her husband Chanan Singh i.e. Prito and Gurdas Kaur. After the death of her husband, Kartar Kaur had inherited about 188 kanals of land and a mutation was also sanctioned in her favour on that account. As per the case of the plaintiff-respondent Jugraj Singh, Kartar Kaur who was his father's sister executed a will in his favour on 15th February, 1972 leaving her entire property to him. Kartar Kaur was murdered on 6th September, 1972 allegedly by the sons of Prito and Gurdas Kaur, though these accused were acquitted under the judgment Ex.P5 for lack of evidence. As Jugraj Singh was a minor, he filed a civil suit through his mother Chand Kaur as his next friend claiming that he was owner in possession of the property (the subject matter of the will). A decree for declaration and permanent injunction was, accordingly, prayed for.
3. The suit was contested by all the defendant/appellants and they filed their written statement denying the claim of the plaintiff/respondent. It was also denied that Kartar Kaur had been murdered by defendant No.1 and sons of Prito and Gurdas Kaur. It was also denied that the plaintiff/respondent Jugraj Singh had ever been adopted by Kartar Kaur or that a will had been executed as had been alleged in the plaint. It was pleaded that they were entitled to succeed to the property as Kartar Kaur had died issueless. One Ujagar Singh who claimed to be a third degree collateral of Karam Singh-the husband of Kartar Kaur also filed a separate written statement denying the claim of the plaintiff/respondent to the suit property and infact, set up another will Ex.D1 dated 11th June, 1972 allegedly made by the deceased Kartar Kaur in his favour.
4. On the pleadings of the parties, the following issues were framed:-
1. Whether the plaintiff is the heir of Kartar Kaur deceased as alleged in paras No. 5 and 6 of the plaint ? OPP.
2. Whether the plaintiff is in possession of the property in suit ? OPP.
3. Whether Kartar Kaur executed a valid will in favour of defendant No. 2 4. Whether defendants No. 1, 4 and 5 are the natural heirs of the deceased Kartar Kaur ? OPD.
5. Relief.
5. On Issue No. 1, the trial Court found that the plaintiff/respondent had not been duly adopted by the deceased-testator and in the alternative, even the will Ex.P1 set up by him had been found to be a suspicious document and could not be believed. On Issue No. 2, it was held that the plaintiff/respondent had failed to prove that he had been put in possession of the property. On Issue No. 3, a finding was recorded that the will Ex.D1 allegedly executed in favour of Ujagar Singh-defendant No. 2 too, was a suspicious document and had not been proved as having been validly executed. On Issue No. 4, it was found that the defendants No. 1, 4 and 5 were the heirs entitled to succeed under the Hindu Succession Act. The suit was accordingly dismissed. Two appeals were taken before the District Judge, Faridkot, one by Ujagar Singh and the other by Jugraj Singh. The lower Appellate Court held that the will Ex.D1 was a suspicious document and unworthy of reliance. On Issue No. 2, it was found that in the meanwhile, the land in question had been attached Under Section 145 of the Cr.P.C. and was, therefore, not in the possession of either party. The finding on Issue No. 1 was reversed and it was held that Kartar Singh had made a valid 1 will in favour of Jugraj Singh and having held as above, allowed the appeal filed by the said appellant, whereas the appeal of Ujagar Singh was dismissed.
6. Two appeals have been filed in this Court i.e. R.S.A. No. 856 of 1979 filed by Nihal Kaur and other against Jugraj Singh and Ors. and R.S.A. No. 840 of 1979 filed by Ujagar Singh and Ors. against Jugraj Singh and Ors. Both these appeals are being disposed off by the present judgment. CM. No. 1394/C 95 filed in RSA 840/79 is allowed.
7. It has been argued by Mr. R.S. Bindra, the learned senior counsel appearing for Nihal Kaur and Ors. that there were a number of suspicious circumstances with regard to the will Ex. P1 which required to be taken note of and as such, the judgment of the lower Appellant Court, on the face of it, was erroneous. He has First and foremost pointed out that the will Ex. P1 was a suspicious document as it deprived Nihal Kaur and her children-the natural successors of the inheritance; that the non-examination of the second attesting witness i.e. Baljit Singh-Lambardar cast a doubt on the will as he was the only independent one and as the second attesting witness Malkiat Singh PW4 belonged to village Kot Kapura and was not residing at village Sandhwan (where the will had been executed), his presence was, therefore, somewhat unnatural. Mr. Bindra has further argued that it had come on record that Kartar Kaur was in a position to sign a document and that the thumb impression put on the will indicated that it had been put there after her death. In support of his arguments, he placed reliance upon Mst. Gullan Devi v. Mst. Puna alias Puran Devi and Ors., AIR 1989 Jammu and Kashmir 51. Mr. Bindra has also argued that as per the judgment reported as Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh and Ors., A.I.R. 1951 Supreme Court 120 as followed in Smt. Ishar Kaur v. Daulat Ram and Ors., A.I.R. 1952 Punjab 147 and Dinesh Kumar v. Khazan Singh and Ors., AIR 1988 Delhi 273, it was not open to the High Court to interfere on a finding of fact recorded by the trial Court and as such, on this very basis, the appeal was liable to succeed.
8. Mr. Gurcharan Singh, the learned counsel appearing in support of the other appeal i.e. filed by Ujagar Singh and Ors. has urged that it had come on record that Kartar Kaur had handed over the possession of the land which was subject matter of the will to Ujagar Singh and as he was admittedly a third degree collateral of her deceased husband Karam Singh, he bore a special relationship with the deceased testator and as such, the will Ex. D1 was a natural document and deserved to be relied upon.
9. Mr. Arun Jain, the learned counsel appearing for Jugraj Singh and Ors. has, however, argued that the thumb impression on the will in question were admittedly of the deceased Kartar Kaur and once that was admitted, the validity of the same stood substantially proved. He has urged that Jugraj Singh was admittedly the son of Thakur Singh the brother of the deceased Kartar Kaur and as per the evidence on record was about 12 years of age at the time when the will had been executed and Kartar Kaur was done to death and that he had been living with Kartar Kaur in village Sandhwan and had been admitted in school by her. He has urged that though the fact that the adoption of Jugraj Singh by Kartar Kaur had not been proved, yet the special relation-ship that she bore towards him, was proved on record.
10. I have heard the learned counsel for the parties and am of the opinion that there is no merit in either of the two appeals.
11. It is true, as has been contended by Mr. Bindra, that Baljit Singh the second attesting witness had not been examined, but I am of the opinion that no adverse inference can be drawn from such omissions. Admittedly, Malkiat Singh - PW4 the other attesting witness was examined and in the light of the fact that the thumb impression of Kartar Kaur was admitted on the will Ex. P1, is another circumstances which makes the non-examination of Baljit Singh redundant, It is equally true, as has been contended by Mr. Bindra that there are documents on the record to indicate that Kartar Kaur was in a position to put her signatures on the document, but from this circumstances by-itself, it cannot be inferred that because only a thumb impression had been put, the will could not be relied upon. It has been observed by the lower Appellate Court (and I see no reason to differ) that it is not uncommon that people in the villages often put their thumb impressions in preference to their signatures as the science of Finger-print is an exact one, when the same cannot be said with regard to the identification of handwriting. It has come in the evidence of Malkiat Singh - PW 3 and that the testator had thumb marked the document in their presence and the thumb impression was further proved by Dewan K.S. Puri - PW9, Finger Print Expert from Patiala, who is very well regarded in judicial circles. The trial Court had found that the scribe and the attesting witness could not be believed for the reason that they did not belong to the village of the deceased - testator and that they were closely related or connected with appellants' family. To my mind, this argument, is without force in the case of an execution of a will, only such persons who are in the confidence of the testator can be relied upon for the purpose of attestation of a will. Moreover it is quite probable that Kartar Kaur being a Jat had married into a Jat family and was issueless was conscious of the fact that a big chunk of land (about 188 kanals) would be a very great draw for parents and her in laws' family and it is, therefore, extremely probable that she sought to execute the will in a confidential way. Moreover, it has come inevidence that Jugraj Singh respondent was only a lad of 12 years at the time of the execution of the will, and that he had been living with Kartar Kaur for a period of time as she had admitted him to School in village Sandhwan. It is, therefore, likely that she bore a special attention for him. It is equally significant that Nihal Kaur's grandsons were arraigned as accused in Kartar Kaur's murder (though acquitted) and this fact indicates that she bore no love for that family. The judgments cited by the learned counsel for the appellant in different set of facts cannot be relied upon.
12. Faced with this situation, Mr. Bindra, has argued that the will itself was a suspicious document and it appeared that the thumb impression had been taken on the will after the alleged murder of Kartar Kaur as it was the admitted case that her dead body had been transported to her parental home for cremation. In this connection, he has pointed out that a casual glance at the will would indicate that the quality and colour of the ink used in writing various portions of the will that at-least two pens had been used and the signatures of Malkiat Singh - PW4 appeared to come over the thumb impression was a clear pointer to the facts. It has also been argued that the common practice was that the right thumb impression of a woman was taken on a document, whereas in this case it was the left thumb impression of Kartar Kaur the had been taken and the evidence that this too was when the document had been put on the thigh of Malkiat Singh, which was difficult to believe.
13. I have considered this, argument and find no merit in it. Even a glance at Ex. P1, the will, would indicate that it had been written by one and the same person and the words and the lines shows that it was written at the same time by one person in the same ink. It is true that some of the words are in a slightly darker shade but it is apparent that the dark portion appeared after the pen was dipped into an ink bottle to replenish the ink on the nib. It is also true (as has been contended by Mr. Bindra) that ordinarily the right thumb impressions of a woman are taken on document but this is a matter of practice and not rule of law and in the light of the fact that the thumb impression of Kartar Kaur does actually exist on the will Ex. P1, this matter is of no significance. It has also come in evidence that Kartar Kaur was about 70 years of age at the time of the execution of the will and at this age, therefore, one of the village elders, the fact that the will was lying on the thigh of Malkiat Singh when she marked it could well be believed.
14. The arguments of Mr. Gurcharan Singh with regard to the will Ex. D1 are equally without merit. It has not been proved that Ujagar Singh was ever in possession of the property or that Kartar Kaur had ever handed over the possession of the suit land to him. Ujagar Singh was admittedly a third degree collateral of Kartar Kaur's deceased husband Karam Singh and as is well known, a woman even after the marriage continues to have a big affection for her parental home in preference to her in laws.
15. Mr. Bindra has finally argued that in appeal, the Court should not ordinarily interfere on the finding of fact recorded by the trial Court, meaning thereby that the District Judge ought not to have interfered in an appeal in favour of Jugraj Singh. For this assertion. Mr. Bindra, has relied upon the above noted authorities.
16. After having gone through the authorities cited by the learned counsel, I am of the opinion that they are not applicable to the facts of the case in hand and even otherwise, the observations of the Hon'ble Supreme Court (read in Mr. Bindra's way) reveal that this is only a practice, and if the Appellate Court has reasons to differ, it may do so.
17. For the reasons recorded above, I am of the opinion that no interference is called for in these appeals. Dismissed.