Punjab-Haryana High Court
Major General Kuldip Singh Bajwa (Retd) vs General Public And Others on 12 May, 2010
Author: Ajay Tewari
Bench: Ajay Tewari
Probate Case No. 5 of 1994 (O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of decision : May 12, 2010
1. Probate Case No.5 of 1994
Major General Kuldip Singh Bajwa (Retd) vs General Public and others
2. Probate Case No.3 of 2001
Sukhdeep Singh Bajwa & another vs General Public and others.
***
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Sanjiv Sharma, Sr. Advocate with Mr. Sekhar Verma, Advocate for the petitioner.
Mr. Arun Jain, Sr. Advocate with Mr. Jaivir Chandel, Advocate for respondent No.2.
Mr. S.N.Chopra, Advocate for respondents No.11 to 13.
***
1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
*** AJAY TEWARI, J This order shall dispose of Probate Case No.5 of 1994 and Probate Case No.3 of 2001.
Probate Case No.5 of 1994 has been filed by the petitioner in respect of Will dated 1.6.1981 and Probate Case No.3 of 2001 has been filed by respondents No.11 to 13 in respect of Will dated 14.4.1989.
Probate Case No. 5 of 1994 (O&M) ::2::
It is noteworthy to mention that evidence was led in Probate Case No.5 of 1994 and, therefore, the witnesses are being referred to as per their nomenclature in the said probate case.
Probate Case No.5 of 1994 has been filed under Section 276 of the Indian Succession Act, 1925 for the grant of probate filed by the petitioner, who is the eldest son of the testatrix-Smt. Gurnam Kaur and being the beneficiary to the extent of 1/3rd share. Respondents No.2 and 10 are the other sons/beneficiaries, respondents No.3 to 5 are the daughters of the testatrix, and respondents No.6 to 9 are the children of her pre-deceased daughter.
It is averred in the petition that the testatrix executed a Will dated 1.6.1981 (Annexure P-1), which was registered in the office of the Sub Registrar, Chandigarh on 1.7.1981. Thereafter, on 27.6.1990 Mrs. Gurnam Kaur passed away leaving behind numerous movable and immovable properties situated in Districts Gurdaspur and Amritsar. The petitioner seeks grant of probate with respect to the said registered Will qua the properties in dispute.
Amarjit Singh Bajwa (respondent No.2) filed reply and denied that Smt. Gurnam Kaur executed the alleged Will dated 1.6.1981 allegedly registered on 1.7.1981. She had inherited ¼th share of the property of her husband S.Gurial Singh Bajwa and mutation was entered in her name to the extent of ¼th share. The said mutation was challenged through a civil suit which was eventually dismissed in default. It is further averred in the written statement by respondent No.2 that Smt. Gurnam Kaur was fed up with harassment, intimidation, threats and other invectives handed out by the petitioner and in fact reported the matter to the Army Authorities vide Probate Case No. 5 of 1994 (O&M) ::3::
letter dated 15.6.1973 giving all the details of the behaviour of the petitioner. The said letter was duly acknowledged by the Army Authorities. It was urged that Amarjit Singh Bajwa (answering respondent) and his sons had been serving the deceased Smt. Gurnam Kaur and gave her proper respect. The Will dated 1.6.1981 is false and fabricated. It is further alleged in the written statement that in the mutation proceedings before the SDO(C) Mukerian regarding the inheritance of Smt. Gurnam Kaur, the petitioner had taken a contrary stand and had in fact stated that the Will was registered on the same day i.e 1.6.1981 and respondent No.2 is contesting those proceedings. Attesting witnesses of the Will are none else but the subordinate officials of respondent No.10. Smt. Gurnam Kaur had in fact executed the Will dated 14.4.1989 in favour of the sons of respondent No.2. The alleged Will dated 1.6.1981 is fabricated. Respondent No.2 attended the bhog ceremony but there was no talk of the existence of the alleged Will. In view of the Will dated 14.4.1989, the instant petition deserves to be dismissed. Properties movable and immovable left behind by Smt. Gurnam Kaur have been inherited by the beneficiaries under the Will dated 14.4.1989.
Respondents No.3 to 5 (daughters of the testatrix) filed their written statement corroborating the assertions made in the Probate Petition. They further mentioned that even though the testatrix had been treated unfairly by respondent No.2-in so much as he had clandestinely got the khasra girdawari of the land which was owned and possessed by his mother changed into his name- yet in view of the wishes of her late husband, the testatrix had executed the Will dated 1.6.1981 in favour of all her three sons.
Probate Case No. 5 of 1994 (O&M) ::4::
Respondents No.11 to 13 (newly added respondents) filed their reply stating that the deceased Smt. Gurnam Kaur had executed her last Will dated 14.4.1989 in favour of the said respondents and, thus, there being rival claims and two rival wills being set up by the parties, the instant petition was not maintainable and only civil suit would lie. It was further alleged that setting up of the two rival Wills by the respective parties amounts to question of title and the said question of title can only be decided in a regular civil suit. However, subsequently, these respondents filed Probate Case No.3 of 2001 which was ordered to be heard along with earlier filed Probate Case No.5 of 1994. Once respondents No.11 to 13 have filed Probate Case No.3 of 2001, their allegations regarding maintainability of Probate Case No.5 of 1994 have to be held to be withdrawn.
In the replications, the petitioner also asserted the fact of maltreatment of the testatrix by respondent No.2, and her subsequent deeds and disenchantment with him while denying that the petitioner had ever mistreated her. The allegations about the alleged invalidity of the Will dated 1.6.1981 were denied and it was further denied that the testatrix had ever made a Will in favour of respondents No.11 to 13.
The following issues were struck by the parties in support of their respective cases :-
" 1) Whether deceased, Gurnam Kaur, executed valid Will dated 1.6.1981 in favour of petitioner and respondents No.2and 10 ? OPP
2) Whether Gurnam Kaur executed valid will dated 14.4.1989 ? OPR 11 to 13.
Probate Case No. 5 of 1994 (O&M) ::5::
3) If issue No.2 is proved, whether petitioner is
entitled to the grant of probate ? OPP
4) Whether the property has been correctly valued
and described in the petition ? OPP
5) Whether the petition is not maintainable as alleged
by respondents No.11 to 13 ? OPR 11 to 13.
6) Relief."
Although both the parties have tendered into evidence several documents but learned counsel for the parties have relied mainly on the following documents :-
1) Ex. P1, order on application for correction of Girdawari filed by testatrix-Gurnam Kaur against respondent No.2-Amarjit Singh.
2) Ex.P2, Judgment in Civil Suit No.4, dated 27.12.1982 decided on 8.4.1987, filed by testatrix-Gurnam Kaur against respondent No.2-
Amarjit Singh for rendition of accounts.
3) Ex.R2, letter dated 6.6.1964 4) Ex.R3, letter dated 29.4.1966 5) Ex.R4, statement of the petitioner. 6) Ex.R5, letter dated 25.5.1993 written by the petitioner to the
Executive Officer, Municipal Committee, Qadian, Distt. Gurdaspur.
7) Ex.RW12/1, notice dated 12.8.1964.
8) Ex.RW12/2, notice dated 12.8.1964.
9) Ex.RW12/6, Will dated 1.6.1981 executed by Smt. Gurnam Kaur,
wife of late S.Gurdial Singh Bajwa.
Though many witnesses were examined yet during arguments, learned counsel for the petitioner has focussed only on the statements of the following witnesses :-
1) PW6- Hardev Singh Jatana son of Gurdial Singh Jatana, Probate Case No. 5 of 1994 (O&M) ::6::
2) PW7- Major General Kuldip Singh Bajwa (Retd)
3) PW8-Balwinder Singh son of Sant Singh,
4) PW9-Smt. Gurwant Kaur wife of Gurbirinder Singh, PW6-Hardev Singh Jatana deposed in his statement that Gurnam Kaur was the real aunt of his wife. He had seen the original Will (Ex.P4) which was the one which Gurnam Kaur had executed. The said Will bore his signatures at two places. It also bore the signatures of Gurnam Kaur who had signed in his presence. He too had signed in her presence. He further stated that Balwinder Singh was the second witness in whose presence Gurnam Kaur had signed. Hardev Singh (PW6) further stated that he had read the Will before he signed the same. The Will was also read out to Gurnam Kaur. At the time of execution of the Will, Gurnam Kaur was in a sound disposing mind. He further deposed that it did not appear to him that any undue pressure or influence was being exercised on her at the time of execution of the Will. They had gone to the office of Sub Registrar for registration of the Will where he (Hardev Singh Jatana) signed in the presence of the Sub Registrar.
PW7-Major General Kuldip Singh Bajwa (Retd) stated in his statement that they are three brothers and four sisters. One sister is dead. His father died on 22.7.1963 leaving behind an undated Will bequeathing his entire property in four equal shares to his three sons and his wife. His three sisters challenged the said Will but before the Hon'ble Supreme Court the said suit was withdrawn. His mother never filed any complaint to the Army Authorities. His relations with his mother were very cordial for six years after the death of his father but thereafter differences arose because of misunderstanding created by his brother Amarjit Singh. His mother was Probate Case No. 5 of 1994 (O&M) ::7::
staying in Bajwa House, Qadian and she never resided with Amarjit Singh. She left Qadian in September 1980 and started living with him (PW7). He further stated that till 1981, the land was being managed jointly by Amarjit Singh and his mother. Thereafter, Amarjit Singh in collusion with the Patwari got changed the khasra girdwari in his name. He further stated that though numerous complaints were filed to various authorities by his mother, no correction was made in the khasra girdawari. His mother executed a Will dated 1.6.1981 (Ex.P4) and he identified the signatures of his mother on the Will. He accompanied his mother when the Will was presented before the Sub Registrar. He further stated that three sons are beneficiaries of the Will. His mother never executed Will other than Will (Ex.P4). He further stated in his cross-examination that his mother Gurnam Kaur and the witnesses had signed the document (Ex.P4) in his presence. After execution of the Will, they all went to the office of Sub Registrar. At the time of registration, only he, the attesting witnesses, and Gurnam Kaur were present. He further deposed that he did not go to the office of Sub Registrar during the intervening period viz between the day the Will was executed and registered and the day it was collected by him.
PW8-Balwinder Singh stated on oath that he had signed as a witness over the original Will (Ex.P4) and identified his signatures. He further stated that Gurnam Kaur, at the time of execution of the Will, was quite in her senses and she `understood her good or bad'. He further stated that he appeared before the Tehsildar and signed as a witness at Mark B of Ex.P4. He also identified his signatures on the declaration Mark C. In his cross-examination, Balwinder Singh (PW8) stated that the Will was not executed in his presence. He further stated that when he went to Gurnam Probate Case No. 5 of 1994 (O&M) ::8::
Kaur, she told him that she had scribed a Will and he should sign the same. Kuldip Singh Bajwa and Jaswant Singh Bajwa were present when he signed the Will. He further stated that Gurnam Kaur was 67/70 years old at that time. The Will was recorded at the house of Kuldip Singh Bajwa. He had gone to the office of the Tehsildar on the same day he signed the Will. The Will was also scribed on the same day.
PW9-Gurwant Kaur tendered into evidence her affidavit. She averred in the affidavit that she is the daughter of late Sardar Gurdial Singh and late Smt. Gurnam Kaur. After the death of her father, her mother started residing in the family house at village Qadian, District Gurdaspur but visited her sons and daughters from time to time. After 1980, her mother started residing with her brother Kuldip Singh Bajwa at Chandigarh. She further deposed that she was very close to her mother. Her mother told her in August 1981 that in order to settle her affairs and to comply with the wishes of her husband, she had executed a Will in June 1981 with regard to her property by dividing it in equal shares amongst her sons. She further told Gurwant Kaur (PW9) that the Will was registered in the office of Registrar, Chandigarh. In her cross examination, Gurwant Kaur stated that during the time her mother was suffering from burns, respondent No.12 or his family members never came to see her. In all, she has supported the case of the petitioner and nothing much was elicited in the cross examination which may help the respondents.
Even though other witnesses including PW10, PW11 and PW11-A Karnail Singh son of Surain Singh were also examined yet none of the counsel has relied upon their statements.
The respondents have examined as many as 24 witnesses, Probate Case No. 5 of 1994 (O&M) ::9::
though reference has been made only to the evidence of the following persons :-
1) Respondent No.2-Amarjeet Singh Bajwa (RW12)
2) Davinder Singh, Advocate the Scribe,
3) Sukhdeep Singh-respondent No.12 (RW18)
4) Kashmir Singh, Advocate one of the witnesses.
Kashmir Singh has deposed in favour of the Will propounded by respondents No.11 to 13 and stated that Gurnam Kaur signed the Will after affirming it in his presence and in the presence of other witness Naranjan Singh. In the cross-examination, he stuck to the stand that Gurnam Kaur had come to his house all alone at about 6 pm on 14.4.1989. He further stated that Gurnam Kaur had called Davinder Singh to scribe the Will. He denied the suggestion that the Will was drafted on a paper that bore the signatures of Gurnam Kaur and that the said paper had been brought by Amarjit Singh Bajwa.
Davinder Singh, scribe of the Will dated 14.4.1989 also appeared as RW18. He admits that Gurnam Kaur was 88 years old at that time. He further states that when he reached there only Gurnam Kaur, Kashmir Singh and the other witness Naranjan Singh were present. He has further stated that he scribed the Will as per the directions of Gurnam Kaur, deceased and that the witnesses had signed the same along with him.
Respondent No.2-Amarjit Singh Bajwa appeared as RW12. He has deposed against the Will dated 1.6.1981 and in favour of the Will dated 14.4.1989. He has stated that his mother Gurnam Kaur had executed a Will in favour of his sons, because he and her sons used to serve her. He has denied that he had usurped the agricultural property belonging to his Probate Case No. 5 of 1994 (O&M) ::10::
mother. He has not been able to deny that his mother made complaints to the police against him dated 4.3.1981 and another complaint to the Deputy Commissioner dated 20.9.1987 or that she had moved an application for correction of khasra girdawaris or filed a civil suit. He has further attempted to brush aside these documents by claiming that they had not been signed by his mother. As per his version, on 14.4.1989 (the date on which the Will in favour of his sons was executed) he was posted at the Theim Dam, Pathankot. He came to know about that Will some time thereafter. He admitted that apart from the present application, his sons had not made any application any where in regard to the execution of the Will dated 14.4.1989. He further admitted that despite knowing of the alleged execution of the Will he did not mention the said fact when he moved an application for being impleaded as L.R of his mother. He also admitted that after 1980, she resided with her other sons and daughters also at times.
Sukhdeep Singh Bajwa (respondent No.12) has also appeared as RW18. He has stated that he first saw the Will in June/July, 1989; that his brother Amarjit Singh Bajwa (respondent No.2) brought the Will from Panchkula from his grand mother.
Learned counsel for the petitioner has argued that the Will dated 1.6.1981 is a registered document and has been duly proved. As regards the Will dated 14.4.1989, he has stated that the most important fact which shrouds this Will in suspicion is that admittedly, Smt. Gurnam Kaur was aged more than 88 years and was staying in Chandigarh but she is shown to have mysteriously reached Gurdaspur all by herself. He has further argued that respondent No.2 has stated that on that date he was posted at the Theim Dam. As per the learned counsel, not only is the Probate Case No. 5 of 1994 (O&M) ::11::
appearance of Smt. Gurnam Kaur at the house of Kashmir Singh at 6 pm mysterious, even her subsequent movements are not known. Learned counsel has argued that it was impossible for this old lady to have travelled all by herself to Gurdaspur and then returned. He has further argued that the statement of respondent No.2-Amarjit Singh that despite knowing of the alleged Will, he did not mention the said fact when he moved an application for being impleaded as a Legal Representative, is also an extremely suspicious circumstance. Learned counsel has further argued that the police complaint/representations made by Gurnam Kaur against Amarjit Singh in which the allegations were to the effect that he usurped her property, make it further unlikely that she would execute a Will in favour of his sons excluding her own children. Learned counsel has further argued that on the death of the husband of Gurnam Kaur, he had left a Will in favour of his three sons and wife. There would be no reason for Gurnam Kaur to change this mode of succession, disinherit all her sons and bequeath the property to the children of only one son. It is further argued that after the admission by Amarjit Singh-respondent No.2 that after 1980 his mother had stayed with the other sons also, the assertion in the alleged Will dated 14.4.1989 about her mal treatment at the hands of Kuldip Singh and Jaswant Singh in such strong terms is ex-facie suspicious. He has drawn the attention of the Court to the following assertions in the Will dated 14.4.1989 :-
"........ My husband L.S.Gurdial Singh died in July 1963 and soon after this my elder two sons Kuldip Singh and Jaswant Singh started harassing me without any reason. They filed suits against me, used to give threats to kill me Probate Case No. 5 of 1994 (O&M) ::12::
and gave many types of notices to me. They both tried even upto this to deny the share of land and property which share my husband had given me. Specially my eldest son Kuldip Singh who after becoming Brigadier was got posted at Amritsar, he threatened and intimidated me very much. One day he came to Qadian along with armed military personnel and he tried to kill me........ One day my eldest son Kuldip Singh took me along from Qadian to get share of property from me, and used to get blank papers signed from me by force, and in my name used to frame false cases against my youngest son Amarjit Singh about which I am very unhappy. My elder two sons had put restrictions on my going and coming anywhere. Under these conditions, I do not want that my elder two sons Kuldip Singh and Jaswant get any share out of my any type of land and property, who harassed me so much..."
Learned counsel for respondent No.2 has argued that actually it is the Will dated 1.6.1981 which is shrouded in suspicious circumstances. He has stated that both the witnesses were working as subordinates to the second son of Gurnam Kaur, namely, Jaswant Singh. He has further argued that the witnesses as well as Kuldip Singh have stated that the Will was registered on the same day, whereas actually it was registered only on 1.7.1981 i.e after one month. He has further stated that PW8, one of the attesting witnesses, has admitted that the Will was not executed in his presence. He has further argued that as per Section 52(1)(c) of the Probate Case No. 5 of 1994 (O&M) ::13::
Registration Act, 1903, second copy was to be pasted in the register but the same has been copied and that this also shows that the Will was shrouded in suspicious circumstances. In this regard, counsel for respondent No.2 has relied upon Krishna Devi and another v. Gian Kaur and others, 1981 Revenue Law Reporter 303. Learned counsel has further drawn the attention of this Court to the statement of the petitioner in mutation proceedings, Ex.R4 wherein he admitted that endorsements were typed at home. He further states that the words `drafted by me' and `advocate' which exist in the original Will are not there in the certified copy. He has further pointed out that as per the statement, the entire process of typing, execution and signatures on the Will were done continuously and in the circumstances it is not explained as to why the date was mentioned in pen and why the names of the witnesses were not typed but were written by hand. He further states that in the petition it was mentioned that the original Will was left in the custody of one M.S.Sandhu but it was not mentioned that who was M.S.Sandhu or where he resided and that this was contrary to the assertion by the petitioner that he collected the original Will from the Registrar office. Learned counsel has further drawn the attention of the Court to Ex.PW9/9, which was a complaint made by Gurnam Kaur against the petitioner. He has referred to a suit filed in 1967 by the petitioner against his mother and Amarjit Singh. He has also referred to the letters Ex.R1 and R-3 which were written by the petitioner to Gurnam Kaur which, as per the learned counsel, show the extent of difference between the son and the mother. He has also referred to Ex.RW12/1 and Ex.RW12/2 which were the notices issued by Jaswant Singh to Gurnam Kaur and Amarjit Singh. He has, thus, argued that the Will dated 1.6.1981 cannot be relied Probate Case No. 5 of 1994 (O&M) ::14::
upon. He has further argued that in the replication a specific stand with regard to the Will dated 14.4.1989 was taken that Amarjit Singh had signed blank papers of his mother which were used by him to fabricate the Will dated 14.4.1989. However, this was never put to Amarjit Singh and consequently challenge to the Will dated 14.4.1989 cannot be sustained.
In rebuttal, learned counsel for the petitioner has argued that as regards the statement of PW8-Balwinder Singh that the Will was not executed in his presence, Section 63(c) of the Indian Succession Act, 1925 would be a complete answer. Section 63(c) of the said Act reads as follows :-
" 63. Execution of unprivileged Wills.-
xx xx xx xx xx
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
As per the learned counsel for the petitioner, once the witness had stated that Gurnam Kaur had herself told the witness to sign the Will, it would be deemed to be due attestation. As regards the discrepancies in the Probate Case No. 5 of 1994 (O&M) ::15::
registration process, the learned counsel has stated that in the first place the discrepancies pointed out are not very material and that in the alternative any alleged discrepancy in the registration process would not detract from the proof of due execution of the Will. As regards the complaints made by the parties against each other, counsel for the petitioner has stated that at some point of her life, the testatrix had some differences with all her sons. However, when she executed the Will, she bequeathed every thing which she had inherited from her husband to her three sons since that was the intention of her husband.
In my opinion, the Will dated 1.6.1991 stands proved while the Will dated 14.4.1989 is shrouded in suspicious circumstances. Apart from the evidence of the attesting witnesses, the most important witness is Gurwant Kaur. It must be remembered that originally she was one of the plaintiffs in a suit challenging the Will of the late father of the parties in favour of his wife and sons. Lateron that dispute was settled and the sisters withdrew the challenge. This witness is not proved to have any animus with any of her brothers. She has deposed in categoric terms that her mother had told her that she had executed the Will in June 1981 in favour of her three sons. The other discrepancies pointed out with regard to the execution of the Will are, in my opinion, too minor to be given any importance. The fact that the word `Advocate' was typed or that the names of the witnesses and the dates were written by hand would not detract from the unshaken testimony of PW9-Smt Gurwant Kaur and the attesting witnesses. The Court cannot lose sight of the fact that the sisters had challenged the Will in favour of three brothers and the mother which had been defended by all of them. Thus, it is not at all unnatural for the mother Probate Case No. 5 of 1994 (O&M) ::16::
to have perpetuated the desire of her husband and bequeathed the property inherited from him in favour of three sons to the exclusion of the daughters. It cannot also be forgotten that the testatrix was borne at the turn of the century and had been brought up in milieu where daughters were not supposed to inherit from their fathers. Thus, the execution of the Will dated 1.6.1981, apart from having been satisfactorily proved, also corresponds to the normal course of the conduct which can be held to have appealed to the testatrix.
As regards the infirmities alleged to have vitiated the registration process, learned counsel for the Objector has argued that as per the statements of PW6 and PW7, the witnesses of the testatrix immediately went to the registration office after the execution of the Will. However, in para 1 of the petition, it has been mentioned as follows :-
" The testatrix passed away on June 27, 1990 at General Hospital, Sector 16 Chandigarh having executed her last and only Will and testament in the English language and character on Ist June, 1981 registered with the Estate Office, Chandigarh on Ist July, 1981."
It is further argued that the statement of the petitioner in mutation proceedings (Ex.R4) reveals that he had admitted that endorsements were typed at his house. Learned counsel for the Objector has also drawn my attention to Ex.RW12/6 which shows that the words `drafted by me' and `advocate' do not appear in the certified copies. In my opinion, these discrepancies can be explained by the long lapse of time between the execution/registration of the Will and the date/s of the statement, mutation proceedings as well as the drafting of the petition. Apart from this Probate Case No. 5 of 1994 (O&M) ::17::
explanation, it cannot be lost sight of that execution of the Will and its registration are two distinct acts. In Bharpur Singh and others vs Shamsher Singh, (2009) 3 SCC 687, the Hon'ble Supreme Court held as follows :-
" 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with."
Thus, it logically follows that if merely by proving registration, execution is not proved, it cannot be also said that merely by pointing out infirmities in the registration process it must be held that the execution was not proved. A perusal of the judgment of the Hon'ble Supreme Court extracted above, clearly shows that execution of Will and registration are two independent acts. In all cases, it is necessary to prove execution of a Will and proof of registration is merely corroborative. In matters regarding Wills, the Hon'ble Supreme Court has held as follows :-
In Smt. Jaswant Kaur vs. Smt. Amrit Kaur and others, (1977)1 SCC 369, the Hon'ble Supreme Court held as follows :-
" 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 Probate Case No. 5 of 1994 (O&M) ::18::
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...."
Similarly, in H.Venkatachala Iyengar v. B.N.Thimmajamma and others, AIR 1959 SC 443(1), it was held as follows :-
"19. However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the Probate Case No. 5 of 1994 (O&M) ::19::
testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated."
To the similar effect is the judgment of the Hon'ble Supreme Court in Madhukar D.Shende v. Tarabaiaba Shedage, (2002)2 SCC 85, wherein it was held as follows :-
"8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of Probate Case No. 5 of 1994 (O&M) ::20::
stones of suspicion and supposition by wayfarers and waylayers....."
Viewed against this ex-position of law, this Court has no hesitation in holding that judicial conscience is satisfied that Will dated 1.6.1981 was duly executed by Gurnam Kaur-testatrix on her own volition while in her full control of faculties.
As regards the Will dated 14.4.1989, the first suspicious circumstance is the harsh language used against the two sons when even respondent No.2 had admitted that after 1980, she used to stay with all the brothers-even though the case of the other brothers and the sisters is that after 1980 she never stayed with respondent No.2. Once it is accepted that Smt. Gurnam Kaur used to stay with her two elder sons also, it would be very hard to reconcile the following sentences :-
".......They filed suits against me, used to give threats to kill me and gave many types of notices to me........ One day he came to Qadian along with armed military personnel and he tried to kill me........"
The second suspicious circumstance is the appearance of 88 years old Gurnam Kaur at Gurdaspur on 14.4.1989. Nothing has been explained as to how she reached Gurdaspur at that ripe old age, whether she was escorted and where she went after the execution of the Will. Third, respondent No.2, who was admittedly posted close to Gurdaspur at that time and would have been the natural person with whom the testatrix would be staying at that time, strangely shows ignorance about her movements or whereabouts on that fateful day. Fourth, had a Will been executed in favour of his sons, there was no question that he would apply to be substituted as a Probate Case No. 5 of 1994 (O&M) ::21::
legal representative of Gurnam Kaur in the litigation pending at the time of her death without disclosing the fact that in fact his sons were her legal representatives.
Apart from the evidence, which has been led in this case, this Court is also bound to take notice of the record of mutation No.2258 which was sanctioned in respect of the impugned Will by the revenue authorities. Though the Probate Court is not bound by the judgments of revenue authorities in mutation proceedings yet it cannot be gainsaid that those proceedings are not wholly irrelevant. In those proceedings also, parties led evidence and after consideration thereof a judicious order was passed. I have gone through the evidence led in that case as well as the finding of the revenue authorities. It would be seen that the revenue Courts also considered the same circumstances and have independently arrived at similar conclusions. One salient factor which weighed with the revenue Courts was that the fact that respondent No.2 had appeared in the mutation proceedings on 8.2.1991 yet at that stage he did not take any plea that the mutation should not be sanctioned on the basis of the Will dated 1.6.1981 because there was a subsequent Will in favour of his sons and the subsequent Will was pleaded by the beneficiaries only on 25.5.1992.
On a conspectus of all the facts and law discussed above, it is held that the Will dated 1.6.1981 is proved to have been validly executed by the testatrix and the Will dated 14.4.1989 is discarded being surrounded by suspicious circumstances. Consequently, Probate Case No.5 of 1994 is allowed and Probate Case No.3 of 2001 is dismissed with no order as to costs.
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As the main petitions have since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of.
( AJAY TEWARI ) May 12, 2010. JUDGE `kk'