Punjab-Haryana High Court
Gurdial Kaur And Another vs Chand Kaur (Deceased) Through L.Rs on 2 March, 2012
Author: Sabina
Bench: Sabina
RSA No. 1728 of 1984 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Regular Second Appeal No. 1728 of 1984
Date of Decision: 02.3.2012.
Gurdial Kaur and another .......Appellants
Vs.
Chand Kaur (deceased) through L.Rs. .....Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. B.S.Bhalla, Advocate
for the appellants
Mr. R.S.Aulakh, Advocate
for L.Rs of the respondent.
.....
SABINA, J.
Plaintiffs Gurdial Kaur and Harbans Kaur filed suit for possession of 1/3rd share out of the suit property as described in the head note of the plaint against Chand Kaur defendant.
The case of the plaintiffs, in brief, was that Naranjan Singh was owner to the extent of 1/3rd share in the suit property. Naranjan Singh had died about two years prior to the filing of the suit and after his death, plaintiffs being his only legal heirs were liable to succeed to his estate. The will set-up by the defendant was not a genuine document.
Defendant, in her written statement, admitted the factum of death of Naranjan Singh. However, it was denied that the plaintiffs were the legal heirs of deceased Naranjan Singh. It was averred that the defendant was in possession of the suit RSA No. 1728 of 1984 -2- land on the basis of the Will dated 1.4.1975 executed by Naranjan Singh in her favour.
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether the plaintiffs are heirs of Naranjan Singh deceased? OPP
2. Whether Naranjan Singh deceased executed a valid Will in favour of the defendant on 1.4.75? If so, its effect? OPD
3. Relief."
Trial court vide judgment and decree dated 7.12.1981 decreed the suit of the plaintiffs. It was held that the plaintiffs being natural heirs of the deceased Naranjan Singh were entitled to succeed to his share in the suit property. Aggrieved by the said judgment and decree, defendant preferred an appeal. The first appellate court vide judgment and decree dated 27.2.1984 allowed the appeal filed by the defendant and consequently, the suit filed by the plaintiffs was ordered to be dismissed. Hence, the present appeal by the plaintiffs.
Learned counsel for the appellants has submitted that during the pendency of the appeal, appellant Gurdial Kaur had died. Appellant No.2, only legal heir of Gurdial Kaur, was already on record. Learned counsel has further submitted that the relationship between the deceased and the plaintiffs was not in dispute. The learned first appellate court had erred in holding that the Will in question was a genuine Will. In fact, Will dated 1.4.1975 could not be termed as a genuine Will as no reference had been made in the said Will qua the plaintiffs. There was no RSA No. 1728 of 1984 -3- occasion for Naranjan Singh to have executed the Will in favour of the defendant, his sister, in preference to his wife and daughter.
Learned counsel for the respondent, on the other hand, has submitted that the first appellate court had given cogent reasons for upholding the Will in question. The Will in question was a registered Will and had been duly thumb marked by the executant. The relations between the executant and his wife were not cordial and due to this reason, he had executed a Will in favour of the defendant as he was being looked after by her.
The substantial question of law that arises in this case is:-
"Whether the Will dated 1.4.1975 (Ex. D-3) is a genuine document?"
It is not in dispute that plaintiff Gurdial Kaur was wife of deceased Naranjan Singh and plaintiff Harbans Kaur is the daughter of deceased Naranjan singh. Defendant Chand Kaur is the sister of the deceased Naranjan Singh. Defendant has placed reliance on Will dated 1.4.1975 alleged to have been executed by Naranjan Singh in her favour. A perusal of Will (Ex. D-3) reveals that it was executed on 1.4.1975 and was got registered on the same day. The Will (Ex. D-3) is thumb marked by the executant and has been attested by witnesses Avtar Singh and Gurdev Singh. In order to prove the due execution of the Will, defendant examined DW-2 Daya Nand (scribe of the Will) DW-3 Avtar Singh and DW-4 Gurdev Singh (attesting witnesses of the Will). The said witnesses have deposed qua execution of the Will by the RSA No. 1728 of 1984 -4- executant Naranjan Singh in favour of Chand Kaur.
A Will is a sacred document and speaks of the mind of the executant after his death. The executant of the Will is never available for deposing as to under what circumstances he had executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus lies on the propounder of the Will to establish that it is genuinely executed document. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one of the attesting witnesses is required to be examined to prove its due execution. It is a settled preposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. The test emphasis that in determining the question as to whether an instrument produced before the court is genuine Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. In case a person intends to pass his property to his natural heirs, then there is no necessity at all of executing a Will. It is true that propounder of the Will has to remove all suspicious circumstances.
In the present case, the natural heirs have been RSA No. 1728 of 1984 -5- excluded by the executant while executing the Will. No reasons have been given by the executant as to why he was depriving his natural heirs from inheritance and executing the Will in favour of his sister. Rather, no mention has been made by the executant qua his natural heirs in the Will. In normal circumstances, it was expected by the executant to have at least made a mention qua his natural heirs and give some reasons for depriving them from inheritance. The plaintiffs are none other than the widow and daughter of deceased Nararnjan Singh. In case, the executant was not having cordial relations with his wife then he could have easily mentioned the said fact while executing the Will in favour of his sister as a reason to deprive his wife from inheritance. The executant had no reason to deprive his real daughter from inheritance. No reasons have been given as to why he did not want his daughter to inherit his property. Rather, no mention has been made by the executant in the Will qua his wife or daughter. This renders the Will a suspicious document. Although registration of a Will goes a long way in proving the execution of the Will but in the facts and circumstances of the present case, the Will in question cannot be said to be a genuine Will of the testator. Though the defendant, propounder of the Will, had been successful in technically proving the execution of the Will by examining the scribe, attesting witnesses and an expert to establish that the Will was duly thumb marked by the deceased, yet the Will in question is surrounded by suspicious circumstances. In these circumstances, learned first appellate court had erred in holding the Will to be a genuine document. Rather, the Will in question RSA No. 1728 of 1984 -6- is surrounded by suspicious circumstances and cannot be described as a genuine document. The substantial question of law that arises in this case stands answered accordingly.
Accordingly, this appeal is allowed. The impugned judgment and decree passed by the first appellate court dated 27.2.1984 are set aside. Consequently, the judgment and decree passed by the trial court dated 7.12.1981 are upheld.
(SABINA) JUDGE March 02, 2012 Gurpreet