Punjab-Haryana High Court
Smt.Gurdip Kaur vs Sawinder Singh And Others on 27 July, 2010
Author: K.C.Puri
Bench: K.C.Puri
RSA No.201 of 1983 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.201 of 1983
Date of decision 27.07.2010.
Smt.Gurdip Kaur
...... Appellant.
versus
Sawinder Singh and others.
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present : Mr. Jagmohan Singh Chaudhary, Senior Advocate with
Mr. L.S.Virk, Advocate for the appellant.
Mr. J.R.Mittal, Senior Advocate with
Mr. Kashmir Singh, Advocate for respondent No.1.
Mr. G.S.Bhatia, Advocate .
K.C.PURI, J.
This is a regular second appeal directed by defendant-appellant against the judgment dated 20.12.1982 passed by Shri K.C.Diwan, learned Additional District Judge, Amritsar vide which the appeal preferred by the plaintiffs against the judgment dated 27.12.1978 passed by Mr. L.R.Roojam, Sub Judge Ist Class, Ajnala dismissing the suit of the plaintiffs, stood accepted.
Shorn off unnecessary details, the case of the plaintiffs as set RSA No.201 of 1983 2 forth in the plaint is that Sawinder Singh, Gurbachan Singh and Harbans Kaur filed civil suit for declaration to the effect that they were the owners in possession of the land, measuring 149 k 17 m described in detail in the heading of the plaint and for consequential relief of permanent injunction restraining the defendants from interfering into the lawful and peaceful possession of the plaintiffs of the suit land.
It has been pleaded by the plaintiffs that Makhan Singh son of Kushan Singh resident of village Ramdas was the owner of the suit land died on 5.12.1974. Makhan Singh had neither any wife nor any children. The plaintiffs pleaded that during the illness of said Makhan Singh and even before, the plaintiffs served him in view of the fact that plaintiffs no. 1 and 2 were his nephews while plaintiff No.3 was the wife of plaintiff No. 2. It was alleged that pleased with the services rendered by the plaintiffs, Makhan Singh deceased, executed two valid Wills on 26.11.1974 and 4.12.1974 in favour of the plaintiffs, while in sound disposing mind and in proper senses and by virtue of the said Wills, the plaintiffs became the owners of the entire estate left by Makhan Singh, deceased. It was averred that in the life time of Makhan Singh, he was served by the plaintiffs and even after his death also, all the ceremonies in connection with his death were performed by the plaintiffs. The plaintiffs alleged that during the life time of Makhan Singh, they were in cultivating possession of the suit land as tenants and some of his land was leased out to the plaintiffs by him and as such the plaintiffs were in possession of whole land of deceased-Makhan Singh alongwith his other property. Even on 4.12.1974 when Makhan Singh made the second Will in favour of the plaintiffs he had withdrawn a RSA No.201 of 1983 3 sum of Rs.3495/- from his post office savings bank account at Ramdas and handed over the said amount to the plaintiffs alongwith the passbook of the post office, for spending the same on his illness etc. The plaintiffs further asserted about the validity and correctness of the two Wills propounded by them. The defendant had alleged that she was the owner of the whole property left by Makhan Singh, deceased because of the Will dated 31.3.1971 executed by Makhan Singh in her favour. The factum and correctness of the said Will were denied and it was alleged that even if there was any such Will, the subsequent Wills dated 26.11.1974 and 4.12.1974 cancelled the same and in the said two Wills Makhan Singh had specifically mentioned that defendant was his pichhlag daughter from his first wife. It was further alleged that Wills dated 26.11.1974 and 4.12.1974 were made by Makhan Singh in his sound disposing mind and of his free consent. Mutation was however, sanctioned in favour of the defendant and the plaintiffs alleged the said sanction as wrong and inoperative.
The suit was resisted by the defendant Gurdip Kaur. In her written statement, she took preliminary objections that the plaintiffs were not in possession of the land in suit or any part of it and as such, the suit was not maintainable in the present form. It was admitted that Makhan Singh was the owner of the suit land but it was denied that he died on 5.12.1974. It was pleaded that he died on 4.12.1974. the defendant alleged herself to be the daughter of said Makhan Singh. It was denied that the plaintiffs served the deceased Makhan Singh. She also denied the relationship of the plaintiffs with Makhan Singh deceased as alleged in the plaint. It was averred in the written statement that the defendant being the RSA No.201 of 1983 4 daughter of Makhan Singh used to serve him. The factum, the execution and validity of the Will propounded by the plaintiffs were denied. It was alleged that Makhan Singh, deceased, was very ill and was not in his senses before his death. It was pleaded that Makhan Singh after the year 1971 grew old and feeble and was lonely and the plaintiffs by exerting undue influence, may have procured the Will under that influence. The Wills propounded by the plaintiffs were alleged to be most unnatural and unconscionable. The defendant propounded a Will dated 31.1.1971 in her favour validly executed by Makhan Singh and got registered.
The learned trial Court framed the following issues:-
1. Whether Makhan Singh, deceased, executed a valid Will in favour of the plaintiffs on 4.12.1974? OPP.
2. Whether Makhan Singh, deceased, executed a valid Will on 31.1.1971 in favour of defendant. If so, its effect? OPD
3. Whether defendant is daughter of Makhan Singh? If so to what effect? OPD
4. Whether the plaintiffs are in possession of the suit land?
OPP
5. If issue No. 4 is not proved, whether the present suit is maintainable in the present from? OPP
6. Whether the plaintiff is entitled to the injunction prayed for?
7. Relief.
The parties have led their respective evidence on the aforesaid issues and after appreciating the same and hearing the learned counsel for RSA No.201 of 1983 5 the parties, the trial Court dismissed the suit of the plaintiffs.
Feeling dissatisfied with the judgment dated 27.12.1978, the plaintiffs preferred appeal before the First Appellate Court.
The said appeal was allowed by learned District Judge, Amritsar vide judgment dated 20.12.1982 and the suit of the plaintiffs stood decreed.
Feeling dissatisfied with the judgment dated 20.12.1982, the defendant-appellant has preferred the present regular second appeal.
I have heard learned counsel for the parties and have gone through the records of the case.
From the submissions made by both the sides, following substantial questions of law have arisen : -
1. Whether the judgment of the First Appellate Court suffer from perversity inasmuch the First Appellate Court has misinterpreted the evidence in respect of Wills dated 26.11.1974 and 4.12.1974 alleged to be executed by Makhan Singh ?
2. Whether the judgment of the First Appellate Court suffers from perversity in respect of misinterpreting and misreading in respect of relationship of Gurdip Kaur and Makhan Singh as pichhlag daughter ?
The learned counsel for the appellant has submitted that the trial Court has given a well reasoned judgment holding that Wills dated 26.11.1974 and 4.12.1974 were not proved and that these documents are surrounded by suspicious circumstances. It is contended that the detailed reasoning for discarding Wills dated 26.11.1974 and 4.12.1974 are given in para Nos.11 to 15 of the judgment. The reasoning given by the trial Court, in these paras have not been met with by the First Appellate Court. The RSA No.201 of 1983 6 First Appellate Court has even misread and misinterpreted the evidence on the file, while returning the finding that the said two Wills stood proved. The First Appellate Court has also misread and misinterpreted the evidence regarding the relationship of Gurdip Kaur with Makhan Singh. It is contended that both the Courts below have given a concurrent finding that registered Will dated 31.3.1971 stands proved and further held that the plaintiffs have admitted that document. There is a clear cut recital in the Will dated 31.3.1971 that Gurdip Kaur now appellant is his daughter. The First Appellate Court has also ignored the evidence of other witnesses, who have special knowledge under Section 50 of the Indian Evidence Act regarding relationship of Gurdip Kaur with Makhan Singh as daughter and not pichhlag daughter. It is further contended that the First Appellate Court has wrongly held that the evidence produced before the mutation proceedings in respect of the Will cannot be taken into account that the said finding is factually incorrect. Those statements of the witnesses were not recorded in the mutation proceedings but in respect of the registration of both the Wills dated 26.11.11974 and 4.12.1974, the said evidence has been ignored giving wrong reasoning, that evidence produced before the mutation proceedings, is not to be taken into account. The reliance of the plaintiff is upon the registration of Will dated 4.12.1974. So, the proceedings conducted before that Sub Registrar, while registering the Will is a relevant piece of evidence. It has been ignored by the First Appellate Court on flimsy grounds. It is further contended that no reasoning have been given by the plaintiff for executing second Will during the span of one week i.e. between 26.11.1974 and 4.12.1974. Makhan Singh died RSA No.201 of 1983 7 intervening night of 4.12.1974-5.12.1974. It is further submitted that according to the witnesses produced by the plaintiff they went to the office of Sub Registrar on 26.11.1974 for registration of the Will. Makhan Singh knew the importance of registration of Will and in case he would have actually executed the Will on 26.11.1974 and 4.12.1974 and in that case he must have got registered the same. Through both these Wills, the registered Will dated 31.3.1971 has been cancelled. The witnesses produced by the plaintiffs are highly discrepant regarding not registering Will on 26.11.1974. One of the witnesses has stated that the Sub Registrar was not present whereas the other witness has stated that Sub Registrar has shown inability to register the Will as he has to go to Jail. No reasoning has been given for not registering the Will on 26.11.1974 to 4.12.1974. The reasoning given by the First Appellate Court for executing two Wills is imaginary. The First Appellate Court has stated that two Wills were executed by the deceased to make doubly sure that his enheritance would go according to his wish. That reasoning given by the First Appellate Court does not appeal to the prudent mind. The deed writer register has not been produced to prove that Will dated 26.11.1974 was actually executed on the same day. It is further contended that from the Will dated 26.11.1974, it is revealed that the last lines of that Will have been narrowed down to adjust the thumb impression of Makhan Singh. The other detailed reasoning given by the trial Court in paragraphs No.11 to 15 have not been duly met with by the First Appellate Court. So, in these circumstances, the First Appellate Court has misread and misinterpreted the evidence regarding the Wills dated 24.11.1974 and 4.12.1974 and regarding the relationship of Gurdip Kaur RSA No.201 of 1983 8 with deceased Makhan Singh as his daughter. The beneficiary has taken active part in the occurrence which makes the unregistered Will suspicious. The plaintiffs have themselves admitted that Makhan Singh was living separately and as such there was no occasion for Makhan Singh for executing the Will in favour of plaintiffs. The evidence regarding conducting last ceremony has been manipulated just to create evidence for the decision of the case in order to grab the property of Makhan Singh.
Learned counsel for the appellant in support of his submissions has relied upon the following authorities : -
(1) H.Venkatachala Iyengar vs. B.N.Thimmajamma and others AIR 1959 Supreme Court 443 ;
2. Smt.Jaswant Kaur vs. Smt. Amrit Kaur and others AIR 1977 Supreme Court 74 ;
3. Balbir Singh vs. Kashmir Singh and others 2004(3) P.L.R. 35 ;
4. Ram Piari vs. Bhagwant and others AIR 1990 Supreme Court 1742 ;
5. Satya Pal Gopal Das vs. Smt.Panchubala Dasi and others AIR 1985 Supreme Court 500 ;
6. Ajit Singh vs. Madha Singh (1971) 2 I.L.R. 246 (Punjab and Haryana ) ;
7. Inderjit Kaur alias Jagir Kaur vs. Bhag Singh 2000(2) Civil Court Cases 13 (P&H ) ;
8. Sat Pal Singh vs. Smt. Harminder Kaur 1992 Civil Court Cases 390 (P& H) ;
9. Kashibai & Anr. vs. Parwatibai & Ors. 1995(2) Civil Court Cases RSA No.201 of 1983 9 717 (S.C.) ;
10. Smt. Guro vs. Atma Singh 1992 Civil Court Cases 329 (S.C.) and
11. Hardev Singh vs. Gurmail Singh (Dead) by L.Rs. 2007(1) RCR (Civil) 876.
The counsel for the plaintiff now respondents has supported the judgment of the First Appellate Court. It is submitted that Wills dated 26.11.1974 and 4.12.1974 stand proved by examining marginal witnesses. The mere fact that scribe of Will dated 26.11.1974 has not been examined, does not establish that the Will is suspicious. All the last rites were performed by the plaintiffs. Gurdip Kaur was a married lady living in a separate village. After the execution of the Will dated 31.3.1971, she has not cared for Makhan Singh, which forced him to change his view regarding his inheritance. Mere fact that Makhan Singh died on the intervening night of 4.12.1974 and 5.12.1974 does not make it a suspicious document. Mere taking part by the beneficiary does not make it a suspicious document. Makhan Singh deceased was being looked after by the plaintiffs and both Wills were executed to give reward of the services rendered by the plaintiff to Makhan Singh during his life time. However, the fact remains that last Will has to be prevailed. The First Appellate Court has rightly held that even to pichhlag daughter some time daughter is mentioned. So, recital in Will dated 31.3.1974 describing Gurdip Kaur as daughter does not prove her relationship with Makhan Singh. The First Appellate Court has rightly held that Gurdip Kaur is the pichhlag daughter of Makhan Singh. The First Appellate Court has rightly held that no evidence having the special knowledge under Section 50 of the Evidence RSA No.201 of 1983 10 Act has been produced proving the relationship of Gurdip Kaur with Makhan Singh. The Will is executed twice.
No doubt, although the relationship of Gurdip Kaur with Makhan Singh as that of a daughter is strongly denied, but even if the said relationship is proved, genuinely, the Will is always executed to deprive the legal heirs from the natural succession. So, on that account also the said Wills dated 26.11.1974 and 4.12.1974 stand fully proved and Will prevail. The Will is not a compulsorily registrable document. The First Appellate Court has rightly held that two Wills were executed by Makhan Singh to be doubly assured that the property must go to the beneficiary.
The learned counsel for the respondents has relied upon the following authoritative pronouncements in support of his contention :-
1. Sridevi vs. Jayaraja Shetty 2005(2) S.C.C. 784 ;
2. Sundhri (Dead) through Lrs. vs. Lala Ram (Dead) through LRs. 2005 (2) P.L.R. 493;
3. Mst. Sugani vs. Rameshwar Das & Anr. 2006(4) R.C.R. (Civil) 319 ;
4. Pentakota Satyanarayana & Ors. vs. Pentakota Seetharatnam & Ors. 2005(8) S.C.C. 67 ;
5. Amar Kaur vs. Paramjit Kaur 2003(3) Civil C.C. 645 ;
6. Joginder Singh alias Rajinder Singh vs. Dharuv Singh 2003(3) P.L.R. 545 ;
7. Madhukar D. Shende vs. Tarabai Aba Shedage 2002 (1) R.C.R. (Civil) 724 ;
8. Ramabai Padamkar Patil (D) through Lrs. And others vs. Rukminibai Vishnu Vekhande 2003(3) Civil Court Cases 592 RSA No.201 of 1983 11
9. Tirath Singh vs. Sajjan Singh 1997(2) Civil Court Cases 299 (P&H) ;
10. Chanchal Singh vs. Rattan Kaur (Deceased) through L.R's Charan Singh and others 1988 Civil Court Cases 447 (P&H) ; &
11. Jagsir Singh and another vs. Punjab Kaur and others 1989 Civil Court Cases 347 (P&H) ;
I have given my thoughtful consideration to the rival submissions made by both the learned counsel for the parties and have gone through the records of the case.
The Will is a secret document, which takes effect after the death of the executor. The testator is not alive to state whether the Will is a genuine document or not. In the present case, the defendant has alleged registered Will dated 31.3.1971 in her favour whereas the plaintiffs have alleged unregistered Wills dated 26.11.1974 and 4.12.1974 in their favour. Death of Makhan Singh has admittedly taken place on the intervening night of 4-12-1974 to 5-12-1974. Both the latter unregistered Wills are in favour of plaintiff/respondents.
So far as the execution of Will dated 31.3.1971 is concerned, there is concurrent finding of fact of both the Courts below that Will dated 31.3.1971 executed by Makhan Singh in favour of the present appellant Gurdip Kaur. Otherwise also, the execution of the Will has been admitted by the plaintiff/respondents inasmuch as they have pleaded that the said Will was revoked by two unregistered Wills dated 26.11.1974 and 4.12.1974. The Will dated 31.3.1971, which is an admitted and proved document is a registered Will whereas the other two Wills are unregistered. Otherwise RSA No.201 of 1983 12 also, the registration of Will itself dispel the minor suspicious circumstances, if any. Regarding registration of Will dated 26.11.1974, the witnesses of the plaintiffs are discrepant, as observed by the trial Court. One of the marginal witnesses of the Will dated 26.11.1974 has stated that they went to the office of Sub Registrar but Sub Registrar had to go to Jail whereas the other marginal witness has stated that Sub Registrar was not found present. Even if, the stand of the defendant is taken as correct that Sub Registrar was not available on 26.11.1974, no reasoning has been given for not registering the Will on 27.11.1974 to 4.12.1974. The plaintiffs also knew the importance of registration of Will and only on that account they stated that they went to the office of Sub Registrar on 26.11.1974 for registration. Mere proving thumb impression of the executant of the Will does not prove the execution of Will. The Will has to be proved volunteered deposition made by the deceased bequeathing his property in favour of the beneficiary. The findings of the trial Court, which are in detailed have been ignored by the First Appellate Court by misreading and misinterpreting the evidence. The First Appellate Court has observed that statement of the witnesses were recorded in mutation proceedings, which are discrepant in nature and as such the same are liable to be ignored. That finding of the First Appellate Court are factually incorrect and this fact has been admitted by the learned counsel for the respondents. These statements of the witnesses, which were discrepant in nature, were recorded at the time of registration of the Will after the death of the testator. The very fact that Will has been registered after the death of testator also proved the fact that the plaintiffs knew the importance of the registration of the Will. RSA No.201 of 1983 13 The First Appellate Court has observed that two Wills dated 26.11.74 and 4.12.74 were executed by Makhan Singh to be doubly sure that the property goes to the beneficiary. That findings are also erroneous. In case Makhan Singh has actually executed the Will dated 26.11.74, in that case there was absolutely no necessity for him to again execute the Will dated 4.12.1974. PW-2 Hazara Singh deposed that he cannot say whether registered Will in favour of Gurdip Kaur was cancelled vide Will dated Ex.P-1. Both the witnesses produced by the plaintiff have stated that Makhan Singh was not having good health and on that account he was admitted in Hospital.
The learned trial Court has observed that plaintiffs have made a calculated move to create evidence in their favour. The photographer was arranged. The Will was registered after death of testator. The detailed reasoning have been given by the trial Court in paragraphs No.5 to 12 of its judgment. It has been observed that all the amounts lying in the saving bank of Makhan Singh had been withdrawn leaving a balance of Rs.5/- on 4.12.1974. The trial Court observed that Makhan Singh was living in his own house and died there. So, there was no question of rendering services by the plaintiffs to Makhan Singh deceased. The trial Court has observed that Dilbag Ram clerk of Post Office had come to the house of Makhan Singh for facilitating withdrawal of the amount and that speaks volumes against the execution of the Will in favour of the plaintiff. The finding of the trial Court to the effect that Dilbag Rai (PW-12) and Chanan Ram (PW-
11) have colluded with the plaintiff to procure the thumb impression of Makhan Singh on the Will. The very fact that only Rs.5/- was left in the account clearly shows that withdrawal was not by Makhan Singh but by the RSA No.201 of 1983 14 plaintiff so as to have a monitory benefit. Sawinder Singh, while appearing as (PW-16) has admitted that Makhan Singh has died in his own house. The trial Court also observed that the evidence of the plaintiff showed that deceased was living separately in a separate house. Sawinder Singh, (PW-
16) has further stated that Makhan Singh has brought up Gurdip Kaur. There is a recital in admitted Will dated 31.3.1971 that Gurdip Kaur is daughter of Makhan Singh. The First Appellate Court, after ignoring the admitted document, reached to the conclusion that she is a pichhlag daughter of Makhan Singh. The material witness produced by the plaintiff has not denied the fact that Gurdip Kaur is the daughter of Makhan Singh. PW-2 Hazara Singh in his cross-examination has stated that he does not know whether Makhan Singh has performed the marriage of Gurdip Kaur. He has further stated that he does not know whether she had been coming to Makhan Singh for living with him as his daughter. This witness has also feign ignorance about execution of the registered Will in favour of Gurdip Kaur. The learned trial Court has rightly held that since Makhan Singh was seriously ill and as such was not in a position to execute the Will. PW-2 Hazara Singh, the star witness of plaintiff in his cross-examination has admitted that Makhan Singh was in a feeble health. The plaintiff has relied upon the testimony of PW-6 Vijay Pal regarding the execution of Will Ex.P-
2. This witness has stated that he had no dealing with Makhan Singh. To execute a Will, the executant would normally call for a person in whom he can repose confidence, so that the Will actually takes effect after the death. Since, PW-6 Vijay Pal has no dealing with Makhan Singh, so the deceased would be the last person to choose such a person as a witness for RSA No.201 of 1983 15 execution of the Will. Vijay Pal (PW-6) has also admitted that he was not on visiting terms with the deceased. PW-6 Vijay Pal has also stated in the cross-examination that he does not know whether Gurdip Kaur is the daughter of Makhan Singh.
The propounder of the Will has taken active part in the execution of the Will. So that circumstance also to make the Will suspicious. So that circumstance also made the Will suspicion, coupled with other circumstances. In the Will Ex.P-1, space in the last lines narrow down than the other portion of the Will. The plaintiffs knew the fact that in the registered Will, Makhan Singh has described Gurdip Kaur as his daughter. To overcome with that difficulty, in both the Wills, it is mentioned that Gurdip Kaur is the pichhlag daughter of Makhan Singh. The scribe of Will Ex.P-2 has not been produced. The said Will, according to the plaintiff, was executed on 4.12.1974 whereas the death has taken place on the intervening night of 4.12.1974 and 5.12.1974. The First Appellate Court has not discussed all the reasoning given by the trial Court in discarding the will. The learned trial Court observed that Parshotam Lal scribe of the Will at the time of registration of the Will after the death of Makhan Singh appeared before Shri Pritam Singh, Naib Tehsildar/Sub Registrar. This witness stated that he scribed the Will at the instance of Gurbachan Singh. Makhan Singh was also lying ill and he was unable to move from his bed. Parshotam Lal has also stated that Vijay Kumar, Municipal Commissioner, of Ramdas was not present at the time of execution of the Will. Parshotam Lal also stated before the Sub Registrar that only Hazara Singh Lamberdar has put his signatures on the Will in his RSA No.201 of 1983 16 presence. The said statement of Parshotam Lal has been marked as Ex.PW- 9/3. The trial Court observed that according to his opinion Parshotam Lal scribe was the material witness and his non-examination is fatal to the case of the plaintiff. The trial Court has further observed that by non-examining Parshotam Lal, the value of statement of Vijay Kumar (PW-5) and Hazara Singh (PW-2) has materially impaired. The trial Court has further observed that Vijay Kumar has even conceded in the present case that when he reached, the Will was already scribed. The First Appellate Court has ignored those findings observing that the statement of Parshotam Lal was recorded in mutation proceedings and that fact is factually incorrect. Statement Ex.PW-9/3 of Parshotam Lal was not recorded in mutation proceedings but before the Sub Registrar at the time of registration of the Will Ex.P-2. So, the First Appellate Court has misread the evidence to reach to the conclusion that Will dated 26.11.1974 and 4.12.1974 are found correct.
The learned trial Court has also observed that plaintiff has made a crude attempt to create prospective evidence in their favour by withdrawing the amount of Rs.3495/- from the Post Office, Ramdas with the active connivance of official of the said Post Office. The trial Court has rightly held that thumb impression of Makhan Singh was taken at his back side to help the plaintiff to withdraw the amount of Rs.3495/- from the Post Office Saving account. The trial Court has further observed that Hazara Singh admitted in his cross-examination that postal employee was called in the house. The learned trial Court has rightly observed that all the evidence has been created by the plaintiff to disinherit Gurdip Kaur, the real RSA No.201 of 1983 17 daughter of Makhan Singh. The learned trial Court has rightly observed that evidence of Jaswant Singh photographer has been maneuvered to show the presence of the plaintiff at the time of performing Bhog Ceremony etc. The learned trial Court has rightly observed that it seems that Sawinder Singh plaintiff with the help of Gurbachan Singh and Hazara Singh wanted to grab the property of Makhan Singh and Sawinder Singh has made master plan for the said purpose.
So far as the relationship of deceased with Gurdip Kaur is concerned, the trial Court has given a finding that she is the daughter of Makhan Singh. The said finding has been upset by the First Appellate Court by ignoring and misinterpreting the evidence on the file, as discussed above. There is recital in the Will dated 31.3.1971 that Gurdip Kaur is daughter of Makhan Singh. It is nowhere mentioned that she is the pichhlag daughter of Makhan Singh and the said document is admitted by both the parties. The recital in that document cannot be ignored lightly as done by the First Appellate Court. The trial Court observed that Sawinder Singh plaintiff has conceded that Makhan Singh has brought up Gurdip Kaur. The other witnesses of the plaintiff have also admitted that fact that Gurdip Kaur was brought up by Makhan Singh deceased. The First Appellate Court has observed that there is no evidence as per Section 50 of the Evidence Act, but that finding is contrary to the record. Defendant Gurdip Kaur while appearing as her own witness has stated that she is the daughter of Makhan Singh. Kishan Singh Lamberdar is from the brotherhood of the parties and he has categorically stated that Gurdip Kaur is the daughter of Makhan Singh. So, he has the special knowledge about the relationship of RSA No.201 of 1983 18 Makhan Singh with Gurdip Kaur. His testimony has been discarded on flimsy grounds by the First Appellate Court. DW-3 Bua Ditta has also stated that Gurdip Kaur is the daughter of Makhan Singh and Makhan Singh arranged the marriage of Gurdip Kaur. His testimony has also not been even discussed by the First Appellate Court. So, I have no hesitation in holding that the judgment of the First Appellate Court is the result of misreading and misinterpreting the evidence regarding the execution of the Will dated 26.11.1974 and 7.4.1974 and regarding relationship of Gurdip Kaur with Makhan Singh deceased and it is held that plaintiffs have failed to prove the Will dated 26.11.1974 and 4.12.1974 and these Wills are surrounded by suspicious circumstances and cannot be given effect.
It is further observed that Gurdip Kaur is daughter of Makhan Singh and finding of these two Wills dated 26.11.1974 and 4.12.1974 and relationship stand reversed by answering the substantial question of law in favour of the appellant.
The basic authority regarding execution of Will is
H.Venkatachala Iyengar's case (supra). In the said case, it has been
held that onus of proof of the Will is always upon the propounder. In para graphs No.20 to 22 of the said judgment are reproduced as under :-
"20.There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature: the RSA No.201 of 1983 19 condition of the testator's mind may appear to be very feeble and debilitated: and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator: the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy: and: unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true, that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators: but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them RSA No.201 of 1983 20 substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference of judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. 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 it there are any suspicious RSA No.201 of 1983 21 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 board principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties."
In authority Smt. Jaswant Kaur's case (supra), the Hon'ble Apex Court in paragraphs No.9 and 10 held has under :-
"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by that testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this court in R. Venkatachala Lyengar vs. B.N. Thimmajamma (1959) Supp (1) SCR 426 = (AIR 1959 SC 443). So, the said authority has been relied upon in the later authority.RSA No.201 of 1983 22
In authority Balbir Singh's case (supra) it has been held that active participation and dictating terms of the Will by the beneficiary, exclusion of the natural heirs without any reason creates strong doubts and suspicion on execution of the Will.
In authority Ram Piari's case (supra), the Hon'ble Apex Court has held that even if the daughter is married and financial well off, creates a doubt in execution of the Will.
In authority Satya Pal Gopal Das's case (supra), lays down the law that the testator died after four years of the execution and registration of the Will but taking no step to cancel the Will, circumstances dispels any suspicion that may attach to the will.
This authority has been pressed into service by the learned counsel for the appellant to support the Will dated 31.3.1971. However, the validity of that Will is not in dispute.
In authority Ajit Singh's case (supra), it has been held that active prominent part in the execution of the Will by the beneficiary makes it suspicious document.
In authority Inderjit Kaur alias Jagir Kaur's case (supra), it has been held that the testator died within eight days of executing the Will. This factor by itself makes the document a suspicious one.
In the present case, executant died on the next day of the execution of the Will dated 4.12.1974.
In authority Sat Pal Singh s case (supra) this Court ignored the registered Will as the son was ignored and testator died within two days of the registration of the Will.RSA No.201 of 1983 23
In authority Kashibai & Anr.'s case (supra), the Hon'ble Apex Court has held that attesting witness is a person who in the presence of an executant of a document puts his signature or make after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or signature or mark or the signature or mark of such other person.
In authority Smt.Guro's case (supra), Hon'ble Apex Court held that where the testator is seriously ill and died within 8 days of its execution, the beneficiary has also taken active part and the signatures were shaky in that case, the Will is suspicious document.
In authority Hardev Singh's case (supra), the Hon'ble Apex Court has held that Will is liable to be executed in the light of the provisions of Section 63 of Indian Succession Act and Section 68 of the Indian Evidence Act.
So far as authority Sridevi's case (supra), relief upon by learned counsel for the respondents is concerned in that authority Hon'ble Apex Court has held that mere presence of beneficiary with other family members of the testator is itself not a ground to discard the Will. However, in that authority, it has been held that the role played by the beneficiary is to be seen to arrive at the conclusion regarding the validity of the Will. In that case, father has executed the Will but an unequal distribution was made. However, in the present case, the natural heir has been totally deprived. The above-said authority is distinguishable.
In authority Sundhri's case (supra) also it has been held that mere presence of beneficiary is not a ground to discard the Will. However, RSA No.201 of 1983 24 in that authority it has been held that it dependents upon the person's pressure exhorted on the testator to accept or reject it.
So far as authority Madhukar D.Shende's case (supra), it has been held that death of the testator a day after execution of the Will is itself not a suspicious circumstances. However, the said authority is distinguishable as the Will was registered. The observations made by the Court in that ruling are relevant. It has been held that satisfaction of the conscious of the Court is necessary to rely upon the Will. All the suspicious circumstances or unnatural circumstances attaching to a Will has to be cleared by the propounder of Will.
In authority Ramabai Padamkar Patil (D) through Lrs and others' case (supra), it has been held by the Apex Court that ignoring natural heir by execution of Will does not in itself amount to suspicious circumstance. The Will was got registered by the testator in the said case. The registration of Will dispel some of the suspicious circumstances. In the present case, the Will was not registered by the testator and is surrounded by suspicious and unnatural circumstances, which compel the trial Court to discard the same. The reasoning given by the First Appellate Court in accepting the Will is the non-application of mind and so much so even factual position has been narrated incorrectly.
In authority Tirath Singh's case (supra), this Court has held that mere presence of beneficiary is a sufficient ground to discard the same. In that case also the testator was of a sound disposing mind and got registered the Will in his full senses. So, that authority is distinguishable to the facts of the present case.RSA No.201 of 1983 25
In authority Chanchal Singh's case (supra), also the Will was registered and not revoked for a sufficient long time. So, that authority is also not fit in to the facts of the present case.
In authority Jagsir Singh's case (supra), the unregistered will was accepted as the same was held to be proved and was not surrounded by any suspicious circumstances. There was a plea of bona fide purchasers also in that case. So, that authority is also distinguishable to the facts of the present case.
In view of the above discussion, the substantial questions of law framed above stand answered in favour of the appellant and against the respondents. The appeal stands accepted. The judgment and decree passed by the First Appellate Court stands set aside and the judgment and decree passed by the trial Court stands restored. In view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
July 27th, 2010
sv