Punjab-Haryana High Court
Smt. Amar Kaur vs Tara Singh And Others on 22 March, 2012
Author: L.N. Mittal
Bench: L.N. Mittal
Regular Second Appeal No. 1376 of 2012 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Regular Second Appeal No. 1376 of 2012
Date of decision : March 22, 2012
Smt. Amar Kaur
....Appellant
versus
Tara Singh and others
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. Gaurav Mohunta, Advocate, for the appellants
L.N. Mittal, J. (Oral)
Plaintiff Amar Kaur who was substantially successful in the trial court but has been non-suited by the lower appellate court has filed this second appeal.
It is another case where the dispute is among the family members. Plaintiff-appellant and defendant-respondent no. 4 Atma Kaur are daughters of Swaran Kaur whereas defendant-respondents no. 1 and 2 are husband and son respectively of Swaran Kaur. The dispute relates to inheritance of Swaran Kaur.
Regular Second Appeal No. 1376 of 2012 -2-
Plaintiff-appellant has set up registered Will dated 20.5.1977 allegedly executed in her favour by Swaran Kaur whereas defendants have claimed natural inheritance.
Trial court accepted the aforesaid Will and accordingly decreed the suit partly regarding the properties mentioned in the Will but did not decree the suit regarding land of village Taragarh which was not mentioned in the Will. Defendants no. 1, 2 and 4 filed first appeal against the judgment and decree of the trial court whereas plaintiff preferred cross- objections in the said appeal. Learned Additional District Judge (Adhoc), Fast Track Court, Hoshiarpur vide impugned judgment and decree dated 15.2.2012 dismissed the cross-objections preferred by the plaintiff and allowed the appeal preferred by defendants no. 1, 2 and 4 and thereby dismissed the suit of the plaintiff in toto. Feeling aggrieved, plaintiff has filed the instant second appeal.
I have heard learned counsel for the appellant and perused the case file.
Counsel for the appellant at the out set contended that even if the Will is discarded, the plaintiff-appellant is still entitled to 1/4 th share in the properties of Swaran Kaur being one of her four natural class-I legal heirs and therefore, suit of the plaintiff-appellant could not be dismissed in toto. The contention is a bit misconceived. Natural inheritance of Swaran Regular Second Appeal No. 1376 of 2012 -3- Kaur was not in dispute at the hands of defendants. The defendants themselves pleaded natural inheritance of the suit properties of Swaran Kaur meaning thereby that defendants never disputed that as natural heir plaintiff- appellant also has proportionate share in the suit properties. Mutation has also been sanctioned accordingly. So there is no dispute in this regard. However, it is expressly clarified that the plaintiff shall be entitled to her share in suit properties as per natural inheritance of Swaran Kaur.
As regards Will, counsel for the appellant vehemently contended that plaintiff-appellant has examined Gurnam Singh PW8, an attesting witness of the Will and he has proved the same. It was also contended that signatures of scribe (since deceased) on the Will have also been got proved by examining another deed writer. It was also submitted that the Will is registered one adding to its authenticity. It was submitted that Will has been erroneously discarded by the lower appellate court on the basis of alleged suspicious circumstances. Reliance has been placed on judgment of this Court in Usha Rani and others vs. Lakhbir Singh and others, 2011 (1) Land. L.R. 466. It was also contended that Will is executed to deviate from natural inheritance and it is not a suspicious circumstance, as held by this Court in Jaswinder Singh and others vs. Kartar Singh and others, 2004(2) HLR 347.
I have carefully considered the aforesaid contentions but find Regular Second Appeal No. 1376 of 2012 -4- myself unable to accept the same. There are so many suspicious circumstances surrounding the Will but the same have not been explained by the plaintiff-appellant. It is undisputed that Swaran Kaur left behind two daughters, a son and husband as her natural legal heirs. The alleged Will is in favour of plaintiff only, one of the daughters of Swaran Kaur. However, it is not explained in the Will as to why the Will was being executed in favour of the plaintiff alone to the exclusion of respondents no. 1, 2 and 4. It is correct that Will is executed to deviate from natural inheritance, but at the same time, reason for such deviation is assigned and if there is no reason, then it is certainly a grave suspicious circumstance. In the instant case, no reason has been assigned to deviate from natural inheritance. It has come in the testimony of Gurnam Singh PW8 himself that Swaran Kaur had cordial relations with defendants no. 1, 2 and 4. In this view of the matter, the aforesaid suspicious circumstance becomes more grave and there was no reason for disinheriting defendants no. 1, 2 and 4. Swaran Kaur has disinherited defendants no. 1, 2, and 4 without any reason. The contention of counsel for the appellant that the plaintiff -appellant was serving the deceased and therefore, the Will was executed in her favour, cannot be accepted because it has come in evidence that the deceased was also staying with defendants. Thus, it is a grave suspicious circumstance about the Will that there was no reason for excluding defendants no. 1, 2 Regular Second Appeal No. 1376 of 2012 -5- and 4 from natural inheritance.
Another grave suspicious circumstance surrounding the Will is that it was recited in the Will that the plaintiff is the only daughter of the deceased Swaran Kaur. However, it is not disputed that defendants no. 1, 2 and 4 are husband, son and daughter respectively of Swaran Kaur. There is no reference at all to them in the Will.
Gurnam Singh PW8 star witness of the plaintiff-appellant has completely demolished her case about the alleged Will. He has stated that the Will was dictated to the scribe by the plaintiff-appellant whereas Swaran Kaur remained completely silent. It shows that the plaintiff-appellant not only participated in the execution of the alleged Will but in fact the plaintiff- appellant herself got the Will scribed on behalf of Swaran Kaur. Swaran Kaur herself took no part in the contents of the Will. In view of this statement of Gurnam Singh PW8, it can be safely said that the Will was not executed by Swaran Kaur because she did not state even a word about the contents of the Will to the scribe.
Gurnam Singh also stated that the Will was not even read over to him. He has also not categorically stated that the Will was read over to testatrix Swaran Kaur. These circumstances also go against due execution of the Will.
Gurnam Singh also stated that he had affixed signatures on the Regular Second Appeal No. 1376 of 2012 -6- Will. However, admittedly the Will purports to have been thumb marked and not signed by Gurnam Singh.
All the aforesaid suspicious circumstances surrounding the Will have not been explained or dispelled by plaintiff-appellant who is propounder of the Will. Consequently, the Will has been rightly discarded by the lower appellate court. Judgment in the case of Usha Rani (supra) is completely distinguishable on facts.
For the reasons aforesaid, I find that there is no perversity or illegality in the finding of the lower appellate court discarding the Will set up by the plaintiff-appellant. The said finding is also not shown to be based on misreading or misappreciation of evidence. On the contrary, the said finding is the only reasonable finding that can be arrived at on the basis of the evidence led by the parties. Consequently, the said finding does not warrant any interference. No question of law, much less substantial question of law, arises for adjudication in this second appeal. The appeal is meritless and is, therefore, dismissed in limine.
( L.N. Mittal )
March 22, 2012 Judge
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