Punjab-Haryana High Court
Gurmel Singh (Deceased) Alias Gurmel ... vs Kartar Singh on 30 August, 1996
Equivalent citations: (1996)114PLR578
Author: R.L. Anand
Bench: R.L. Anand
JUDGMENT R.L. Anand, J.
1. Unsuccessful plaintiff Gurmel Singh has filed the present R.S.A. and it has been directed against the judgment and decree dated 13.12.1982 passed by the Court of Additional District Judge, Ludhiana, who accepted the appeal of defendant Kartar Singh and set aside the judgment and decree dated 27.10.1978 passed by the Court of Sub-Judge, IInd Class, Ludhiana, who decreed the suit of the plaintiff-appellant Gurmel Singh for possession of the suit land.
2. The pleadings of the parties can be summarised in the following manner.
3. The case set up by the plaintiff in the trial Court was that Mal Singh son of Harnam Singh son of Basawa? Singh was owner of land measuring 13 Kanals 15 Marlas as described in the head note of the plaint. Said Mal Singh was the Chela of Mahant Bishan Dass who was chela of Smt. Kirpoo of village Khandoor and belonged to Udasi. Said Mahant Mal Singh succeeded to Mahant Bishan Pass after his death and also succeeded to the land measuring 53 Kanals 5 Marlas in the capacity of Mohtamim. The plaintiff was appointed as Chela by Late Mahant Mal Singh and was treated as so during his life time. Mal Singh executed a valid will dated 25.3.1971 in sound disposing mind reciting that the plaintiff-Gurmel Singh was his Chela and would be Mahant of the Dera after his death. The plaintiff succeeded to the property of Mal Singh both movable and immovable. The will was registered with Registrar. Said Mal Singh died on 24.7.1972 and on 9.8.1972 as per custom of the Udasis, the Bhaikh assembled in village Khandoor and appointed the plaintiff as Mahant of Dera according to the wishes of Mal Singh deceased. Mal Singh died issueless and without any wife. Babu Singh son of Harnam Singh son of Basawa Singh succeeded to the secular estate of Mal Singh, being his real brother. Said Babu Singh died leaving behind the plaintiff as sole heir. Thus the plaintiff is entitled to succeed to the secular estate of Mal Singh measuring 13 Kanals 15 Marlas under the Hindu Succession Act, or alternatively, on the basis of registered will dated 25.3.1971 (Exhibit P-1). The plaintiff is also entitled to succeed to the land measuring 53 Kanals 5 Marlas as he was the duly appointed Mahant by the Bhaikh of the institution to which the land is attached. Defendant Kartar Singh, who is a Jat Sikh by caste, and has nothing to do with the Dera, got the mutation of the land, described in the head note of the plaint, in his favour on the basis of some forged will. The defendant has trespassed over the land in dispute since 1974. He was asked several times to vacate the possession of the land and admit the plaintiff as owner of the land measuring 13 Kanals 15 Marlas and admit the plaintiff to be Mohtamin and Mahant of the Udasi institution and thus entitled to the land measuring 58 Kanals 5 Marlas. But to no effect. Hence the suit.
4. Notice of the suit was given to the defendant who contested the suit by alleging that Mal Singh deceased was not Mahant in the strict sense, though he used to call himself as Mahant but he was the Chela of Mahant Bishan Dass, who was the Chela of Smt. Kirpoo of Village Khandoor. Mahant Bishan Dass was the owner of land measuring 53 Kanals 5 Marlas in secular character and not as Mohtamim, as alleged by the plaintiff. The defendant denied that the land in dispute was ever attached with the Dera. The defendant admitted that Mal Singh executed a will dated 25th March, 1971 (Exhibit P-1), but the said will was revoked by the deceased by another registered will dated 20.7.1971 (Exhibit D-1). Thereafter Mal Singh executed one more will dated 30.12.1971 (Exhibit D-2) in sound disposing mind and this was the last will of Mahant Mal Singh. On the basis of the will dated 30.12.1971 (Exhibit D-2) mutation was rightly sanctioned in favour of the defendant, who succeeded to the estate of deceased Mal Singh, who never appointed the plaintiff as Chela. Rather deceased Mal Singh described the plaintiff as undesirable person. The plaintiff was never appointed as Mahant by the Bhaik on 9.8.1972 after the death of Mal Singh, which admittedly took place on 24.7.1972. In fact, the defendant was appointed as Mahant by Mal Singh. The will pronounced by the plaintiff is a forged document and the mutation has been rightly sanctioned in favour of the defendant.
5. From the above pleadings of the parties, the trial Court framed the following issues :-
1. Whether Mal Singh was Mahant of Alleged Udasi Institution and was manager of property in dispute mentioned in para 3 of plaint? OPP
2. Whether there is any custom among Udasi as alleged in para 4 of plaint to appoint Mahant and plaintiff was so appointed? OPP
3. If issue No. 1 is not proved, whether plaintiff is brother's son of Mal Singh and is entitled to succeed to the property of Mal Singh? OPP
4. Whether Mal Singh executed a valid will dated 25.3.1971 and same was validly revoked by Mal Singh? OPP Parties
5. Whether Mal Singh executed valid Will dated 30.12.1971 in favour of defendant, if so, it effects?
6. Relief.
The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, issues No. 1 and 2 were decided against the plaintiff. Issue No. 3 was decided, however, in favour of the plaintiff. Issue No. 4 was decided against the plaintiff. Issue No. 5 was decided against the defendant. Finally, the suit was decreed by the trial Court on the ground that plaintiff Gurmel Singh is the natural heir of deceased Mal Singh, who admitted the plaintiff at his chela in the document Exhibit P-1, so the plaintiff is entitled to inherit the estate of Mal Singh and decreed the suit of the plaintiff as prayed for.
Defendant Kartar Singh filed first appeal in the Court of Additional District Judge, Ludhiana, who vide the impugned judgment and decree dated 13.12.1982 set aside the judgment and decree of the trial Court and dismissed the suit and aggrieved by the judgment and decree of the first appellate Court, the present appeal by the plaintiff.
6. I have heard Mrs. Lissa Gill, Advocate, on behalf of the appellant, and Mr. K.S. Grewal, Advocate, on behalf of the respondent, and with their assistance have gone through the record of this case.
7. In the present case there are three wills. Exhibit P-1 is a registered will dated 25.3.1971, which was admittedly executed by deceased Mal Singh in favour of the plaintiff. A perusal of the same would show that when this will was executed, Mal Singh described his age as 75 years. It is thumb marked and signed by him. A naked perusal of signatures of Mal Singh would show that the deceased signed in the Punjabi Script - once on the front page of the will and twice on the back of this will in the office of the Sub Registrar. It further shows that the signatory is an old and illiterate man. There are tremors and pen lifts when he signed his signatures as "Mahant Mal Singh". The second will is Exhibit Dl on the record. It is again a registered will and in this will also the deceased described his age as 75 years. This time he preferred to put his thumb impressions - once on the face of the will and twice on the back of the will. By virtue of this will he categorically revoked the earlier will (Exhibit P1) dated 25.3.1971 as there is a specific mention about the revocation of the first will. The third will, which is Exhibit D2, and has been propounded by the defendant, is dated 30.12.1971, i.e., it has been executed in the same year when the earlier two wills Exhibits P1 and Dl were executed. Strange enough, Mahant Mal Singh has given his age as 85 years, whereas in the normal course it ought to have been written as 75 years, suggesting that this will is a clear forgery. In Exhibits P1 and D1 Mahant Mal Singh never described himself as Mehar Dass, but in Exhibit D2 Mahant Mal Singh has been shown with an alias Mehar Dass. In this will Exhibit D2 there is a vague reference of the revocation of the will, but there is no specific mention about the date of the will Exhibit P1, which was executed first in time on 25th March, 1971. Had Mal Singh wanted to execute any will in favour of defendant Kartar Singh vide Exhibit D2, he ought to have made a specific reference of the first will dated 25th March, 1971 and the second will dated 20th July, 1971, as had been done in the second will (Exhibit D1) in which there is a specific reference of the will Exhibit P1. Even a naked glance of the alleged signatures of Mal Singh on Exhibit D2 would show that these signatures are sheer forgery and Kartar Singh managed the signatures of Mal Singh from some educated person. There is not a single semblance of signatures of Mal Singh alias Mehar Dass appearing on Exhibit D2 with those on Exhibit P1. Need not to mention that this will Exhibit D2 is not a registered document written by any regular scribe and under suspicious circumstances which I will deal in the subsequent portion of this judgment. At this stage I may state simply that Kartar Singh manipulated the services of two persons, namely, Santokh Singh and Jai Singh, out of whom only Jai Singh was examined while Santokh Singh, the other attesting witness, has not been examined by the respondent in order to remove the suspicious circumstances. Jai Singh, attesting witness of Exhibit D2, is the same person, who was the attesting witness of the will Exhibit D1. This witness was well aware that the earlier registered will was revoked by Mahant Mal Singh by another registered will; meaning thereby that Mahant Mal Singh went to the office of the Sub Registrar on two occasions - firstly for the purpose of execution of the will Exhibit P1 and thereafter at the time of the execution of the will Exhibit D1, but on the third occasion, i.e., on 30.12.1971, Mal Singh preferred not to visit the office of the Sub Registrar, nor Jai Singh attesting witness ever gave advice to the deceased to the effect that he should go to the office of the Sub Registrar for the registration of the will as he earlier went to that office on two occasions. It is true that registration of the will is an optional act, but when the testator had the knowledge that registration of the will stands on better footing than an unregistered will. In natural circumstances he ought to have visited the office of the Sub Registrar, had he genuinely executed the will (D2) in favour of the defendant. It is not the case of the propounder Kartar Singh that at the time of execution of the will dated 30.12.1971 Mal Singh was not in a position to move. Admittedly, Mal Singh died on 24.7.1972 and he survived for about 7/8 months and there is no evidence on the record that on 30.12.1971 his condition was such that he could not go to the office of the Sub Registrar.
8. Now it is to be seen whether defendant Kartar Singh has been able to remove the suspicious circumstances surrounding the will Exhibit D2. He examined Sewa Singh scribe as D.W.3 and Jai Singh, one of the marginal witnesses, as D.W.5. Kartar Singh appeared as his own witness as D.W.2. Sewa Singh scribe admitted that his register contains some blank papers and the will Exhibit D2 was entered in the register on the last page of the year 1971 and after that there are certain blank papers. The testimony of this witness is shaky as he is not maintaining the register of scribe regularly and chances cannot be ruled out that after the death of Mal Singh, he connived with Kartar Singh, Jai Singh and Santokh Singh and executed the will (Exhibit D2). So far as the statement of Jai Singh, attesting witness, is concerned, he admits in the cross-examination that he and Mal Singh started from village Khandoor for the execution of the will, but when they reached village Jangpur, which is at a distance of about 2 or 2-1/2 miles from village Khandoor where the will Exhibit D2 was allegedly scribed, they met Santokh Singh per chance and he became agreeable to become the attesting witness. It has also come in evidence that in village Jangpur, Kartar Singh has his relations, clearly suggesting that Kartar Singh took the services of Sewa Singh scribe D.W.3 and fabricated a will which is full of suspicious circumstances.
9. The things do not rest here. There are two documentary pieces of evidence, which establish that the present will (D2) is nothing but a forgery and is full of suspicious circumstances. Kartar Singh's conduct shows that the will was not brought to light after the death of Mal Singh. Exhibit PW 10/A is an application which was given by Kartar Singh to the Revenue Authorities on 21.8.1972, i.e., just after one month of the death of Mal Singh. Had he been aware about the execution of the will (Exhibit D2), he would have made a mention about the will (D2) in the application. It appears that the will (D2) had been fabricated after 21.8.1972 and was ante-timed by showing the date as 30.12.1971. Yet another document Exhibit PW-7/A on the record is incidentally dated 24.7.1972, i.e., the day when Mahant Mal Singh died. On the same day Kartar Singh gave an application in writing to the Gram panchayat that Mal Singh had not executed any will in his favour nor has executed any gift deed in his favour. Although Kartar Singh has given an explanation that document (Exhibit P.W.7/A) has been scribed by him under duress, yet there is no evidence to rebut this case of the plaintiff. Even if it is assumed for the sake of argument that Exhibit P.W.7/A was executed under coersion, still defendant Kartar Singh has no explanation with regard to the document (Exhibit P.W.10/A) dated 21.8.1972. The trial Court has rightly remarked in para No.17 of the judgment that he himself compared the signatures of Mal Singh on Exhibits D2 and P1 and there was not even an iota of similarity between the signatures on the two documents of Mal Singh, and document Exhibit D2 was a fictitious and forged document. The learned first appellate Court had advanced uncogent reasons while setting aside the well reasoned judgment and decree of the trial Court and has not correctly applied the law.
10. In all cases in which a will is prepared under such circumstances which arouse the suspicion of the Court, it is for the propounder of the will to remove those suspicious circumstances. It is a well settled law that unlike other documents the will speaks after the death of the testator and so when it is propounded or produced before the 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 and, therefore, it must be proved beyond and reasonable doubt that the document propounded or produced was the last will and testament of the departed testator. The execution of the will may be surrounded by suspicious circumstances. The circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light of the relevant circumstances or there might be every indication in the will to show that testator's mind was not free. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before a document is accepted as the last will of the testator. In the present case the standard signatures of Mal Singh and the disputed signatures of Mal Singh were on the record. The defendant should have taken pains to examine the handwriting expert so as to compare the signatures of Mal Singh on Exhibit D2 with the signatures appearing on Exhibit P1, but he did not adopt this course because apparently there was not an iota of similarity between the standard signatures and the disputed ones. The best corroborative evidence has been withheld by the defendant. The statements of attesting witness Jai Singh and the scribe arc very shaky and unnatural. In Anath Nath Das and Ors. v. Smt. Bijali Bala Mondal, AIR 1982 Calcutta 236, it was held that onus is on the propounder to prove due and valid execution of the will and the suspicious circumstances surrounding execution must be removed by cogent and satisfactory evidence. In this authority case law reported as H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 S.C. 443, was relied upon and discussed.
11. Learned counsel for the appellant Ms. Lisa Gill has replied upon Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors., AIR 1977 S.C. 74, and successfully submitted that defendant Kartar Singh has not been able to remove the suspicious circumstances surrounding the will. She also placed reliance on Khanda Singh v. Natha Singh, (1994-2) 107 P.L.R. 742, wherein it was held that where the execution of the Will is surrounded by suspicions circumstances, those suspicious cannot be said to have been removed by the mere assertion that the will bears the signatures of the testator or that the testator was in a sound disposing state of mind and memory at the time he made the Will. In the present case a crude attempt has been made by the defendant-respondent to create a forged will. Reliance was also placed on Kalyan Singh v. Smt. Chhoti and Ors., AIR 1990 S.C. 396, by the learned counsel for the appellant, which case law again reiterates the basic law on the Wills that the onus lies on the propounder of the will to remove suspicious circumstances surrounding the will. My attention has also been invited to Lashkar Singh v. Bakhshish Kaur, 6 1994(1) R.R.R. 469, in which it was laid down that if execution of the Will appears to be surrounded by suspicious circumstances, it is incumbent upon the propounder of the Will to dispel all those circumstances by leading satisfactory evidence, the above case law relied upon by the learned counsel for the appellant has not been successfully dislodged by the learned counsel Shri K.S. Grewal, appearing for the respondent, and who relied upon Aur Singh v. Kulwant Singh and Anr., (1994-1) 106 P.L.R. 321, and Smt. Bhagya Wati and Anr. v. General Public and Ors., (1994-2) 107 P.L.R. 649. Rather I am of the considered opinion that the authority of Smt. Bhagya Wati's case (supra) goes against the defendant-respondent. In this celebrated authority the Division Bench has ably codified the law on the wills after making a thorough study over the subject and the plea of the defendant does not stand to the test of scrutiny of this authority.
12. Resultantly, I am of the considered opinion that this appeal has merit and the same should be allowed.
13. Consequently, I accept this appeal, set aside the judgment and decree of the first appellate Court and restore the judgment and decree of the trial Court and decree the suit of the plaintiff-appellant as prayed for in the plaint. There shall, however, be no order as to costs.