Punjab-Haryana High Court
Surinder Paul And Anr. vs Sataya Devi And Ors. on 29 April, 1997
Equivalent citations: (1997)117PLR105
JUDGMENT N.K. Kapoor, J.
1. This is defendant's appeal against the judgment and decree of the lower appellate Court affirming in appeal the judgment and decree of the trial Court whereby suit of plaintiffs was decreed as prayed for.
2. Plaintiffs filed a suit for declaration to the effect that they are owners in joint possession to the extent of 2/3rd share of the land as detailed in the head note of the plaint. One Daulat Ram alias Daulti s/o Shambhu was owner of the property in dispute. He did not marry and died in April, 1973. Plaintiff and defendant No. 3 are real sisters of deceased Daulat Ram alias Daulti and in the absence of any class-I heir succeeded to his estate. According to plaintiffs, defendant No. 1 and 2 got mutation of inheritance of estate of Daulat Ram in their favour on the basis of an alleged Will in collusion with defendant No. 3 Smt. Maya. Since the Will was never executed, the same was illegal, null and void and so does not affect their proprietary/possessory rights. Otherwise too, Will is surrounded by suspicious circumstances and so is liable to be set aside.
3. Defendants No. 1 and 2 filed joint written statement whereas defendant No. 3 filed a separate written statement. Defendants No. 1 and 2 contended that since plaintiffs were not in possession, suit in the present form is not maintainable. On merit, defendants admitted the plaintiffs and defendant No. 3 to be the real sisters of Daulat Ram. Remaining averments made in the plaint were emphatically denied and it was asserted that Daulat Ram in disposing mind and by his free will had executed a Will on 16.4.1973 and got it registered as well in their favour. In fact, the defendants were looking after him who in turn had been treating them as his nephews and having been pleased with their service, bequeathed his entire property to them.
On the pleadings of parties, following issues were framed :
1) Whether the plaintiffs and Maya defendant No. 1 are the nearest heirs of Daulat Ram deceased?
2) Whether Daulat Ram deceased executed a valid will in favour of the defendants No. 1 and 2 ?
3) Whether the suit is maintainable in the present form ?
4) Relief.
4. The contest revolved around issue No.2 whether Daulat Ram deceased executed a valid Will in favour of defendants No. 1 and 2 ? With a view to prove that Daulat Ram during his last days was wholly incapacitated and did not possess a disposing mind, plaintiffs examined a number of witnesses of the village. PW1 Dharamvir, Sarpanch of the village, deposed that Daulat Ram died on 17.4.1973 in village Chack Guru and that his last rites were performed by Audhya Nath, elder brother of the witness. When examined he stated that Daulat Ram's one arm was amputated. This witness further denied the suggestion that defendants were looking after or rendering their services to Daulat Ram. According to this witness, one or the other out of these three sisters were, in fact, looking after him and in their absence one Smt. Bhagwanti, aunt of Daulat Ram, had been cooking his meals. Besides him, Smt. Sataya Devi plaintiff appeared as PW2; Auydhya Nath as PW3; Walaiti Ram, secretary Co-operative Society, Chack Guru, as PW5 and Siri Ram as PW6. Last witness also deposed to the effect that Daulat Ram was a patient of T.B. and few days before his death his condition was quite serious and he did not remain in disposing mind. According to this witness, Daulat Ram died on 17.4.1973 and was cremated in the village on 18.4.1973.
5. Defendants, on the other hand, examined Gurditta Ram DW1; Shadi Ram DW2, the two attesting witnesses of the Will, and Ashok Kumar DW3, scribe of the Will. These witnesses while testifying to the due execution of Will, however, admitted that Daulat Ram was a T.B. patient. They further admitted that Daulat Ram used to sign in Hindi. All these witnesses were examined thoroughly and the plaintiffs were able to draw certain material raising doubt to the validity of the Will.
6. The trial Court examined the evidence adduced in the light of the decision of the apex Court in case reported as H. Venkatachala Lyengar v. B.N. Thimmajamma and Anr., A.I.R. 1959 S.C. 443. While examining the Will in dispute, trial Court noticed a number of discrepancies/infirmities in the Will and so came to the conclusion that the story set up that they had been rendering help to the executant is nothing but a bundle of lies and the same has been concocted to show that the Will is natural. Similarly, the court found no substance in the contention of defendants that since the Will has been registered, the same cannot be ignored. On the other hand, Court had held that no doubt, the Will is registered by the registration was in a perfunctionary manner. Concluding, the Court noted that the executant was a chronic patient of T.B. and, in fact, has been suffering for a number of years before his death and at the last stage he was unable to walk or move about. Thus, it was upon the propounder to prove beyond a shadow of doubt that the executant was in a fit physical and mental condition by leading some medical evidence. Since no doctor has been examined to prove that the executant was physically fit and mentally sound, the story put forth by the defendants that the executant was physically fit and mentally alert stands disproved in view of evidence of witnesses. According to the trial Court, even otherwise it is for the defendants to explain the suspicious circumstances surrounding the Will which they, however, failed to explain. Resultantly, the Court decided this issue against the defendants. The suit of the plaintiffs was decreed.
7. The lower appellate Court too on appraising the evidence adduced reached to a conclusion that Will Exhibit D-1 is an unnatural document. According to lower appellate Court, the beneficiaries are complete strangers. As per evidence on record, there was no ill will between the testator and his sisters and so there is no good and cogent reason for the testator to deprive his legal heirs of the rights to the estate to be left by him. The court further noticed that testator was a chronic T.B. patient and so could not travel the distance attributed to him. The fact that the testator dies on the next date of execution of Will is by itself a sufficient indicative of his State of health and mind. Accordingly, the appeal too was dismissed.
8. With a view to seek reversal of concurrent findings recorded by the courts below, learned counsel for the appellants has once again highlighted the factum of execution of Will by the testator and its registration. According to the counsel, scribe as well as attesting witnesses have deposed to the due execution of the Will. Not only this, the same was got registered before the Sub Registrar. Such a recourse by itself too dispel the vague allegation of unsoundness of mind of the testator or his physical infirmity at the time of execution of Will. It is quite unthinkable that a person would go all the way to a petition writer to execute such a document, append his signatures/thumb-impression after reading the same and thereafter re-appear before the Registering Authority to accept its due execution. Since the document has been duly proved, exclusion of near relations is hardly a ground to discard the last wish of the deceased. The courts below have erred in law in highlighting the non-mentioning of near relations of the deceased in the Will. No specific form has been prescribed for executing such a document. There is also no requirement that the testator has to give reason for excluding such of his heirs as he may deem proper. Plaintiffs do not come within Class-I heir as per Hindu Succession Act. So their non-mentioning of name in the Will could not be construed as fatal. Similarly, testator thumb-marking the Will instead of signing can hardly be a ground to discard the last wish to the testator. In fact, Maya Devi and other sisters have already accepted the due execution of the Will. Accordingly, judgments of courts below deserves to be reversed.
9. Counsel for the respondents, on the other hand, argued that the concurrent findings of the Courts below do not call for any interference in the second appeal as the same were based upon appreciation of evidence adduced by respective parties. According to counsel, appellants have failed to dispel any one of the various suspicious circumstances surrounding the execution of Will as noticed by the trial Court. According to counsel, it is well settled that it is upon the beneficiary to dispel all such suspicious circumstances before such a document can be held to be a valid thereby depriving the rightful claimants to the rights. Since they have failed to discharge this onus, courts below have rightly ignored the Will.
I have heard learned counsel for the parties as well as perused the well written judgments of courts below as well as of the lower appellate Court. Concededly, Daulat Ram died issueless leaving behind plaintiffs and Smt. Maya Devi, his sisters, to be the nearest heirs. Defendants No. 1 and 2 - the appellants - are not related to Daulat Ram. They even do not belong to his caste. According to defendants, they had been looking after him and so out of love and affection he chose to bequeath this property in their favour and so executed a Will. Will, of course, is a solemn document and it is to be given effect to if proved and free from all suspicious circumstances. Onus to dispel all suspicious circumstances is upon the person propounding such a document. The trial Court made reference to various infirmities as have come up in the statements of witnesses creating a doubt as to the due execution of the Will i.e. (i) that the executant was not in a disposing mind at the time of execution of Will as he had been suffering from T.B. and this fact had been admitted by witnesses of the parties (ii) the fact that the executant dies on the next date by itself suggest that he was not in a fit physical and mental condition so as to understand the consequences of what he has been doing; (iii) that a chronic T.B. patient could not walk for a one and half mile as stated by the attesting witnesses of the Will; and (iv) that as per statement of witnesses of the Will, after execution of the Will, they returned to the village whereas he stayed at Nawanshahr. This, according to the court was most un-natural. What was the reason for thump-marking this document when executant was a educated person ? This again creates a doubt as one of his arm was amputated and may be there was no proof in existence to compare the thumb-impression of the executant.
10. Will does not make mention of sisters or any of other heirs. As noticed earlier, no attempt has been made to dispel any of the suspicious circumstances, so courts below rightly discarded this document. Somewhat similar matter came up for consideration before the apex Court in case reported as Ram Piari v. Bhagwant, (1990-1)97 P.L.R. 639 (S.C.). In the aforesaid case, a disinherited daughter challenged the Will to have been executed by a father a day before his death bequeathing all his property in favour of sons of her only sister. Though in the aforesaid case, the findings of the Courts below were affirmed by the High Court, the apex Court set aside the findings holding that the matter has not been properly comprehended by any of the court. It further held that though freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood that the property he was disposing and persons who were to be beneficiaries of his disposition. According to the Apex Court, prudence requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicious as it does not give any inkling to the mind of testator to enable the court to judge if the disposition was voluntary act. In this case too, the court noticed that whereas the testator could sign yet he thumb-marked the document and so observed that this by itself was sufficient to put the court on alert. Respectfully following the aforesaid judgment and applying the ratio to the facts of the present case. I am of the view that the view taken by the Courts below is in consonance with the various decisions taken by this Court as well as Apex Court.
11. The appeal being devoid of merit is consequently dismissed.