Punjab-Haryana High Court
Surinder Singh (Dead) Through Lrs. vs Anup Singh on 17 July, 2001
Equivalent citations: 2001 A I H C 4551, (2002) 1 HINDULR 115, (2002) 2 MARRILJ 158, (2002) 2 PUN LR 5, (2002) 1 RECCIVR 207, (2002) 1 ICC 888, (2002) 2 CIVILCOURTC 157
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. There was one Dalip Singh son of Jhanda Singh resident of village Chamiari, Tehsil and Distt. Jalandhar. He was owner of land as detailed in the heading of the plaint situated in the area of village, Chamiari, Tehsil and Distt. Jalandhar as entered in Jainabandi for the year 1975-76. He died on 9.1.1982 leaving behind his sons Anup Singh-plaintiff, Surinder Singh and Maluk Singh - defendants (No. 1 and 2 and daughter Smt. Bachan Kaur - defendant No. 3. He executed will dated 26.2.1977 while in sound disposing mind in favour of the plaintiff and defendant Nos. 1 and 2, whereby he bequeathed 2/3rd of his properties in favour of the plaintiff and Maluk Singh-defendant No. 2. He bequeathed 1/3rd share of his properties in favour of Surinder Singh-defendant No. 1. While making this bequest, he put an embargo on 1/3rd share bequeathed to Surinder Singh, viz. that he would hold 1/3rd share till his life. He could enjoy its usufruct but it would not have the right to alienate it either by way of sale, mortgage, exchange and gift. It was recited in the will that after the death of Surinder Singh, this 1/3rd share would devolve upon the plaintiff. Anup Singh and defendant Maluk Singh in equal shares. After the death of Dalip Singh, will was not given effect to. Surinder Singh, Maluk Singh and Bachan Kaur-defendants in conspiracy with the revenue staff got mutation No. 2244 sanctioned in favour of them and the plaintiff in equal shares. The said mutation is not binding on the rights of Anup Singh. On these allegations, Anup Singh filed suit for declaration against Surinder Singh, Maluk Singh and Banchan Kaur to the effect that he and Maluk Singh are owners of 2/3rd share and Surinder Singh is owner in possession of 1/3rd share of land but till his life and that mutation No. 2244 sanctioned on 18.2.1982 on his back is not binding on his rights with consequential relief of permanent injunction restraining them from alienating, transferring or mortgaging in any manner the property in suit.
2. Defendant Nos. 1 and 2 contested the suit of the plaintiff. It was urged that will is forged and fabricated. It never saw the light of the day. It was urged that the plaintiff stood estopped by his act and conduct from filing this suit since mutation in question was sanctioned by the revenue authorities on the basis of inheritance in the presence of the plaintiff, who did not raise a little finger and produce the alleged will before them (the revenue authorities). Dalip Singh did not execute any will dated 26.2.1977 while in sound disposing mind. There was no occasion for him to execute any such will. At the time of execution of the alleged will, Smt. Tej Kaur wife of Dalip; Singh was alive and there was no occasion for him to deprive her of his property when she was dependent upon him. They (defendant Nos. 1 and 2) were with Dalip Singh and were rendering all sorts of services. During his life time, Dalip Singh had devised an arrangement. It was an oral arrangement. 20 kanals of land was given to Maluk Singh and 20 kanats was given to Surinder Singh. He kept 20 kanals to himself. Defendant Nos. 1 and 2 were cultivating the entire land measuring 60 kanals, much before 26.2.1977, i.e. the date of the execution of the will, Dalip Singh was suffering from Ghagodra (disease). He was not in sound, disposing mind. The alleged will is unnatural and shrouded by suspicious circumstances. Even otherwise the land is Joint Hindu/ancestral/Coparcenary Property which it was not within the competence of Dalip Singh to will away. It was denied that the mutation was sanctioned at the back of the plaintiff. No such will was produced by the plaintiff before the revenue authorities. As such, there was no alternative for the revenue authorities but to mutate the property in equal shares among all the natural heirs of Dalip Singh.
3. Smt. Bachan Kaur also contested the suit. It was denied that Dalip Singh executed any will dated 26.2.1977 in favour of the plaintiff and defendants Nos. I and 2. The alleged will is forged, false and fabricated and is not binding on her rights. Dalip Singh was putting up with defendants Nos. 1 and 2 and his wife Smt. Tej Kaur and they were rendering services to Dalip Singh. Plaintiff never bothered to look after Dalip Singh. Dalip Singh was suffering from Chagodra much before 26.2.1977, as such, he was not in sound disposing mind to execute any will. The inheritance of Dalip Singh was rightly mutated in favour of all his natural heirs.
4. On these pleadings of the parties, the following issues were framed by the learned trial Court:
1. Whether Dalip Singh deceased executed a valid will dated 26.2.1977 ? OPP
2. Whether the plaintiff is entitled to the declaration and injunction prayed for ? OPP
3. Whether the suit is not maintainable in the present form ? OPD
4. Whether the plaintiff is not in possession of the suit land ? OPD
5. Whether the will is forged and fabricated document as alleged in para No. 3 of the preliminary objections ? OPD.
6. Whether the plaintiff is estopped from filing this suit by his own act and conduct ? OPD
7. Whether the land in dispute is ancestral coparcenary and Joint Hindu Family property qua the parties, as alleged in para 1 of the written statement? OPD
8. Relief.
Vide order dated 16.9.1983, Senior Sub Judge, Jalandhar dismissed the plaintiffs suit, in view of his finding that Dalip Singh did not execute any will Ex. PA being propounded by the plaintiff while in sound disposing mind. It was found that there are suspicious circumstances surrounding will Ex. PA which the plaintiff has not been able to explain to the satisfaction of the conscience of the Court. It was found that the suit for declaration was maintainable as all of them are lying shown in khasra girdawaris as in possession of the land and property in suit was ancestral property in the hand of Dalip Singh qua his sons.
5. Aggrieved by this judgment and decree dated 16.9.1983 of Senior Sub Judge, Jalandhar, Anup Singh-plaintiff went in appeal, which was allowed by the Additional District Judge, Jalandhar vide order dated 17.5.1985.
6. Aggrieved by the judgment and decree dated 17.5.1985 of the Additional District Judge, Jalandhar, Surinder Singh, Maluk Singh and Bachan Kaur - defendants have come up in appeal to this Court.
7. 1 have heard the learned counsel for the parties and have gone through the record.
8. On 26.2.1977 Dalip Singh was lying admitted in Patel Hospital Civil Lines, Jalandhar. On Ex.PA there is endorsement by Dr. B.S. Chopra, MD, Patel Hospital, Civil Line, Jalandhar, which reads as follows:
"Certified that Mr. Dalip Singh is admitted under my care. He is mentally fit to make statement and he has affixed LTI in my presence."
9. Dr. B.S. Chopra PW-2 stated that he knows Punjabi in Gurmukhi script. The executant of the will S. Dalip Singh executed the will in his presence and he also endorsed the same at place 'A' on the wilt dated 26.2.1977 Ex.PA. He stated the does not know on whose asking the will was scribed. Two witnesses were present when he signed the will. When he signed the will, the other two witnesses had signed the same whose names he does not know. He further stated that the executant was in a serious condition but was mentally alert and sound/conscious. In his cross examination, he stated that he had not known Dalip Singh personally. Bed head ticket of the patient admitted in the hospital was prepared. In the bed head ticket the change in the condition was recorded as well as treatment given to him. He stated that the does not remember when Dalip Singh was admitted in the hospital because he has not brought the record. Right from his admission in the hospital, his condition was serious up to the date of the execution of the will. He stated that it is not possible to know about one's mental condition by just appearance. He did not conduct any objective test because there are no test to know the mental condition of the person. He did not make any note in the bed head ticket regarding the execution of this will and his having made endorsement thereon. He did not make mention of this will in any other record of the hospital. He stated that they do not record the questions and answers of the patient before giving certificate that he is mentally fit. He is not a psychiatrist but is a physician. The relatives of the said patient asked me to certify the mental state of the person, whose name he does not know. It was suggested to him that he gave wrong certificate on the will at point 'A' at the instance of Anup Singh-plaintiff. He denied this suggestion. He gave the certificate when the writing had been made. Writ presence. There was no Psychiatrist in their hospital. He was not able to tell the age of the scribe. He was not able to tell the name of the scribe. He was not able to tell the time when he endorsed his certificate on the will. He was not able to tell what was bequeathed by Dalip Singh and in whose favour bequest was made. He was not able to tell when he was discharged from the hospital because the record was not before him. Dalip Singh was heart patient. He was not able to tell that there was oral feeding to Dalip Singh. He stated that the hospital record would certainly reveal whether there was oral feeding to Dalip Singh. There were 4/5 persons present when he made endorsement. In his presence what took place was that he made endorsement and the will was read over to Dalip Singh and nothing else took place in his presence. Earlier also, he had been giving such certificates as to the mental condition of the patients, who wanted to execute will. Gurminder Singh PW-3 stated that he is scribe of the will. He stated that he scribed this will Ex.PA at the asking of Dalip Singh in Patel Hospital, Civil Lines, Jalandhar on 26.2.1977. After he had written the will, he had read it over to Dalip Singh and the (Dalip Singh) thumb marked in the presence of two witnesses named Giani Darshan Singh and S.Tarlok Singh and then Dr. B.S. Chopra had given certificate on the will. At the lime the executant thumb marked the will, he Giani Darshan Singh, S. Tarlok Singh and Dr. B.S. Chopra were present and the witnesses attested the will in his presence and in the presence of doctor and the executant. He had made entry regarding the scribing of this will in his register at Sr. Nos. 201 and 202.
10. Learned counsel for the appellants submitted that the will cannot be said to have been proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872 as at least one of the attesting witnesses if alive was required to be examined with a view to his stating whether he and the other attesting witness attested the will in the presence of the testator and the testator signed the will or affixed his mark on the will in their presence. It was submitted that in this case Giani Darshan Singh one of the attesting witnesses of the will was not examined, (he was since dead). The other attesting witness of the will Tarlok Singh was also not examined by the plaintiff and he was examined by the defendants and when he was examined by the defendants he did not support the execution of the will. It was submitted that no reliance could thus be planned upon this will. It was submitted that Dr. B.S.Chopra PW-2 Who gave certificate on the will as to the mental condition of Dalip Singh cannot be said to be an attesting witness of the will, when he has stated that he has not known Dalip Singh personally. Similarly, it was submitted about Shri. Gurminder Singh PW-3 who is scribe of this will that he cannot be said to be an attesting witness of the will when he had not stated that he had known the testator personally, it was submitted that neither Dr, B.S. Chopra PW-2 nor Gurminder Singh PW-3 had any animus to be an attesting witness of the will.
11. In support of this submission, learned counsel drew my attention of Lal Singh v. Nand Kaur and Ors., (1993-3)105 PLR 183, where it was held that scribe of the will cannot be said to be an attesting witness when he did not say that he knew the testatrix. Learned counsel also drew my attention to Jagta v. Ruldu, 1999 PLJ 203, where it was held that will is a document which alters natural course of succession. For that reason, law prescribes a special mode for proof of due execution of will. Propounder of will has to prove that marginal witnesses (at least two in number) saw testator signing the will and they themselves signed the same in the presence of testator.
12. In this case Gurminder Singh PW-3 who is scribe of the will has stated that the will Ex.PA was scribed by him at the asking of Dalip Singh in the Patel Hospital, Civil Lines, Jalandhar on 26.21.1977. After he had scribed the will, he read it over to Dalip Singh and he thumb marked in the presence of two witnesses namely Giani Darshan Singh and Tarlok Singh, who had signed the will and then Dr. B.S. Chopra had given certificate on the will. At the time the executant thumb marked the will, he the above mentioned witnesses and the doctor were present and the witnesses had attested the will in his presence and in the presence of the executant and the doctor. Gurminder Singh . PW-3 has thus vouch-safed about the execution of the will by Dalip Singh . He has also vouch-safed about the execution of the will by Giani Darshan Singh and Tarlok Singh in the presence of Dalip Singh. He has vouch-safed about the affixation of thumb mark on the will by Dalip Singh in the presence of the attesting witnesses of the wilt. If Gurminder Singh PW-3 had not known Dalip Singh. Anup Singh could have his thumb impression compared with his thumb impression lying elsewhere. This, Anup Singh did not do. In the absence of this evidence. Gurinder Singh PW-3 could not be taken as an attesting witness of the will. If Gurminder Singh PW-3 had stated that he had known Dalip Singh personally or the plaintiff had got his signatures/thumb impression lying on the will compared with this thumb impression/signatures at other places, he could have been viewed as an attesting witness of the will. Dr. B.S.Chopra PW-2 can also not be viewed as an attesting witness of the will for to same reason. As regards that when the person, who executed this will was in a serious condition but was mentally alert, sound and conscious, we do not have reason to doubt the statement of Dr. B.S.Chopra particularly when he had stated categorically that three/four persons were present when he made endorsement.
13. It was submitted that it lay upon the beneficiary under the will to prove its execution. It was his duty to satisfy the conscience of the court what the testator really meant, he did through the will. If there are any suspicious circumstances attending the execution of the will, the beneficiary is required to explain all those suspicious circumstances and satisfy the conscience of the court that it was the last will and testament of the testator which he executed while in sound disposing mind through which he laid down mode of succession to his property.
14. In Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74, it was held that 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 the 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 that the making of will.
15. It was submitted that a scribe who has singed merely as a scribe cannot be re-graded as attesting witnesses. For this submission, he relied on Onkar Parshad v. Jag-dish, (1951)53 PLR 51, dual role. He may be scribe as well as an attesting witness but he cannot be treated as an attesting witness unless he intends to sign the document as an attesting witness. In support of this submission, he drew my attention to Dhruba v. Purmananda, AIR 1983 Orissa 24.
16. It is also true that where both the attesting witnesses of the will have resiled and have refused to support the will, in such a case the Court cannot be a mute spectator. Court can look into whole circumstances of the case and come to the conclusion whether formalities of Section 63 have been complied with. In support of this submission, he drew my attention to Ittoop Varghese v. Poulose and Ors. AIR 1975 Kerala 141.
17. In this case, Court could look at the testimony Gurinder Singh PW-3 who is scribe of the will and the testimony of Dr. B.S.Chopra in whose hospital the testator was lying admitted and about whose mental condition testation he has deposed, to find out whether it was Dalip Singh who was author of the will.
18. PW-3 Dr. B.S. Chopra and PW-3 Gurminder Singh scribe of the will could be viewed as attesting witnesses of the will. There can be no doubt that Dalip Singh who was lying admitted in the Patel Hospital, Civil Lines, Jalandhar as Tarlok Singh DW-2 has also stated that he came all alone when he visited Dalip Singh in the hospital and also that the plaintiff got his thumb impression on a paper in his village as he wanted to take loan from some body for the treatment of his father. From the statements of Dr. B.S. Chopra and Gurminder Singh, the requirements of Section 68 of the Evidence Act stand fully complied with.
19. It was also submitted that the will is unnatural in as much as Smt. Tej Kaur wife of Dalip Singh was alive on 26.2.1977 and he made no provision for his wife.
20. Suffice it to say, the will is quite natural because Dalip Singh had three sons named Surinder Singh, Anup Singh and Maluk Singh and a daughter Smt. Bachan Kaur. Surinder Singh was un-married. He was wifeless and issueless. He had made provision for him in the will inasmuch as he had stated that Surinder Singh shall have 1/3rd share. He shall enjoy its usufruct and will not have to power to alienate. His share will devolve upon Maluk Singh and Anup Singh after his death. For depriving Bechan Kaur he has given cogent reason. In our society particularly ruralites are clinging to this idea that after their demise their male progeny should inherit them and female progeny should not inherit them. Female progeny is viewed as "begana dhan". It is no ground to discard a will simply" because no provision has been made for some dependent or no reason is given to deprive that dependent who is heir to his inheritance because in this case, Tej Kaur was entitled to be maintained by her sons, particularly when they had inherited this property. When a person succeeds, he succeeds to the assets as well as liabilities.
21. It was submitted by the learned counsel for the appellants that Dalip Singh remained alive for about 5 years after the execution of the will. If he had really executed the will, he could have got it registered as registered will infuses more confidence in the mind of the Court regarding its genuineness.
22. Suffice it to say law does not require the will to be registered simply because there was time for its registration but if it was not got registered it did not mean, that it was a suspicious circumstance attaching to its execution by the testator. For this view, I am supported by a judgment of this Court reported as Smt. Rukman alias Rukmani v. Ujagar Singh and Ors. (1988)85 PLR 386.
23. Will Ex. PA, in my opinion, was executed by Dalip Singh while in sound disposing mind. To me, it seems that only limited right was given to Surinder Singh by Dalip Singh keeping in view that he was wifeless and issueless and if he had given him 1/3rd share absolutely, no wonder he had learned in favour of Maluk Singh/his family and willed away that 1/3rd share in his favour and thus affected domestic felicity between Anup Singh his family and Maluk Singh and his family. It appears to be an act of wisdom on the part of Dalip Singh to have willed 2/3rd share in favour of Maluk Singh and Anup Singh absolutely and 1/3rd share in favour of Surinder Singh for life only, as after the demise of Surinder Singh that 1/3rd share would revert to Anup Singh and Maluk Singh or their families equally. Will Ex. PA is thus held to have been genuinely and validly executed by Dalip Singh.
24. Property devolved upon Dalip Singh from his father Jhanda Singh. It was thus ancestral property in the hands of Dalip Singh qua his sons. They are Hindus and therefore it has to be presumed that it was Joint Hindu Family. There is no evidence that separation took place between them and at that separation some property was given to Anup Singh and some to Maluk Singh and some to Surinder Singh etc. As such, the property has to be taken as ancestral/Joint Hindu Family/Coparcenary property. In the ancestral/Joint Hindu Family/Coparcenary Property. Dalip Singh had 1/4th share, Maluk Singh had 1/4 share. Anup Singh had 1/4th share and Surinder Singh had 1/4th share. As Tej Kaur wife of Datip Singh was dead since before Dalip Singh's death, will shall operate only qua 1/4th share of Dalip Singh. It has no meaning so far as 3/4 share is concerned. If Tej Kaur were alive at the time of the death of Dalip Singh, she would have been entitled to 1/5 share as notional partition. Dalip Singh, Surinder Singh,Maluk Singh and Anup Singh would have been entitled to 1/5 share each.
25. For reasons given above, I am of the opinion that the will Ex.PA was correctly up-held by the learned Additional District Judge, Jalandhar. Will shall, however, operate only qua 1/4th share of Dalip Singh. Surinder Singh, Maluk Singh had Anup Singh had already 1/4th share each in his property. On the death of Dalip Singh, thus 1/4th share will be divided among Surinder Singh, Maluk Singh, Anup Singh and Bachan Kaur equally. Appeal is allowed to this extent only.