Punjab-Haryana High Court
Ram Sarup (Deceased) S/O Mange Ram And ... vs Raj Dulari Wife Of Ram Singh And Ors. on 26 May, 2000
Equivalent citations: (2000)126PLR619
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Sube Singh son of Mange Ram was owner in possession of 1/3rd share of land measuring 320 K 15 M in Khewat No. 283/261 situated in the revenue estate of Village Thana Kalan, District Sonepat and he was owner in possession of another 1/3rd share of land measuring 29 K 14 M situated in the revenue estate of village Thana Kalan in Khewat No. 300/287 as detailed in para No. 4 of the plaint. He died on 15.10.1988 leaving behind wife Smt. Zehro and daughters Raj Dulari, Raj Bala, Kamlesh and Sudesh. After the death of Sube Singh, Ram Sarup and Parkash gave batai to Smt. Raj Dulari etc. daughters of Sube Singh whenever they came to village Thana Kalan to their mother. About six mothers ago, they refused to give them batai for rabi, 1993 and declared that they had nothing to do with this property and they had become owners of this property. On inquiry, they came to know that the share of the property of Sube singh had been got mutated to the extent of 1/5th share in the name of Smt. Zehro and to the extent of 2/5 + ,2/5 in the name of Ram Sarup and Parkash each. Ram Sarup and Parkash are the brothers of Sube Singh.
2. Amar Pal is the son of Parkash. Vatan Lal, Rohtash and Mukesh are the sons of Ram Sarup. Smt. Raj Dulari etc. daughters of Sube Singh filed suit against Ram Sarup and Parkash etc. defendants for joint possession of land measuring 350 K 9M to the extent of 4/15 share of land in equal shares. In nut-shell, their suit was that after the death of Sube Singh, the property should have devolved upon them and their mother Smt. Zehro in equal shares. Any devolution of the property differently was of no effect on their rights.
3. Ram Sarup etc. defendants (except Smt. Zehro defendant) contested the suit of the plaintiffs urging that they are not entitled to inherit the property left by Sube Singh as Sube Singh had bequeathed his property both movable and immovable in favour of his wife Smt. Zehro, Ram Sarup and Parkash his real brothers through Will dated 5.1.1988. As per Will, 1/5th share of Sube Singh was to devolve upon Smt. Zehro and the remaining 4/5 share of Sube Singh was to devolve upon his brothers Ram Sarup and Parkash after his death. It was a valid and genuine Will. Sube Singh died on 15.10.88. Inheritance of Sube Singh devolved on his wife Smt. Zehro, Ram Sarup and Parkash as per terms of the Will. Sube Singh bequeathed in favour of his brothers, Ram Sarup and Parkash as he was being looked after and served by them and he himself was sonless and he had great love and affection for them (Ram Sarup and Parkash). There was no question of giving batai to Smt. Raj Dulari etc. daughters of Sube Singh as the land in suit did not devolve upon them. It devolved on Ram Sarup, Parkash and Smt. Zehro after the death of Sube Singh. In Nut-shell, Ram Sarup etc. defendants sought to exclude Smt. Raj Dulari etc. plaintiffs from inheriting Sube Singh on account of Will dated 5.1.88 which they set up as having been executed by Sube Singh.
4. On the pleadings of the parties, the following issues were framed by the trial Court:-
1. Whether Shri Sube Singh executed a will on 5.1.1988 in a sound disposing mind ? OPD
2. Whether the suit is not maintainable in the present form? OPD
3. Whether the plaintiffs are estopped by their act and conduct from filing the present suit ? OPD
4. Relief.
5. Additional Civil Judge, Senior Division, Sonepat dismissed the plaintiff suit, in view of her findings, that Sube Singh had executed Will dated 5.1.88 Ex.D1 whereby he had bequeathed his property both movable and immovable in favour of his wife Smt. Zehro to the extent of 1/5th share and in favour of Ram Sarup and Parkash to the extent of 4/5th share while he was in sound disposing mind. It was found that this Will was the last Will and testament of Sube Singh, which excluded Smt. Raj Dulari etc. daughters of Sube singh from inheriting him.
Smt. Raj Dulari etc. went in appeal against this judgment and decree of Additional Civil Judge, Senior Division, Sonepat dated 14.12.1996 dismissing their suit.
Additional District Judge, Sonepat allowed the appeal and decreed the suit of the plaintiffs for joint possession, in view of her finding, that this Will was not free from doubt and was riddled with suspicion.
Not satisfied with the judgment and decree of Additional District Judge, Sonepat dated 7.10.97. Ram Sarup etc. defendants have come up in appeal to this Courts.
6. I have heard the learned counsel for the parties and have gone through the record.
It was submitted by the learned Counsel for the appellants (Ram Sarup etc.) that Sube Singh was sonless and had daughters only. He had brothers and their sons, It was submitted that the anxiety of every agriculturist belonging to rural society is that after his death, his property should remain in the male line and the property should not go to the females. It was submitted that in rural society, daughters are viewed as "Begana dhan" and their succession to the property of their father is viewed with disfavour. It was submitted that in rural society, it is not viewed with favour of the son-in-law holding property of the father-in-law in the village of the father-in-law. It was submitted that Sube Singh was not an exception to this general feeling, which the rural society has towards daughters succeeding to their father's property. It was submitted that when Sube Singh had brothers and their sons, he could not view with favour the property going to "Begana dhan." It was submitted that the question of validity and genuineness of Will should be determined by the Court in view of this feeling, which pervades the rural society. It was submitted that rural society has not been able to reconcile to the Hindu succession Act 1956, which has enshrined daughters as equal heirs to the sons of the holders of the property and so that daughters don't succeed to the property of their father, Will is the modus operandi adopted by them or the modus operandi adopted by them is suffering consent decree in favour of the sons. It was submitted that rural society is still clinging to the agnetic theory of succession.
Vide Will Ex.D1, Sube Singh is stated to have willed away one share in favour of his wife and four shares in favour of his two brothers in equal shares. Ram Sarup DW1 (who is one of the beneficiaries under this Will) stated that they are three brothers, he, Sube Singh and Parkash. sube Singh was sonless. Prior to his death, they were looking after and serving Sube Singh. He had willed away one share in favour of his wife and four shares in favour of his two brothers. It is a joint khewat. Parkash and Sube Singh were residing together while he was residing separately but they were all joint in cultivation. After Sube Singh's death, the property was mutated in accordance with Will and, therefore, there was no question of their even having given batai to Smt. Raj Dulari etc. daughters of Sube Singh. Raj Singh son of Tuhi Ram DW2 stated that he is lambardar of the village and that he has studied upto 8th class. He had known Sube Singh. He had scribed Will Ex.D1 at the instance of Sube Singh at his house. At that time, he, Sube Singh. Jai Chand and Dalbir were present. After he had scribed the Will, Will had been read over to Sube Singh who thumb marked the same in token of its correctness in his presence and in the presence of Dalbir and Jai Chand. Dalbir and Jai Chand attested the Will in the presence of Sube Singh after Sube Singh had admitted the Will to be correct. Sube Singh was in sound disposing mind at the time when he scribed this Will. To the same effect is the statement of Dalbir Singh DW3, who is one of the attesting witnesses of this Will. Jai Chand the other alleged attesting witness of the Will was given up by the defendants as won over.
Partap Singh Advocate Sonepat PW1 stated that on 9.6.93, he was Notary Public. That day, one Raj Singh son of Tuhi Ram came to him alongwith one Jai Chand. He attested one affidavit Ex.P1 at the instance of Jai Chand. He also attested one affidavit Ex.P2 at the instance of Raj Singh son of Tuhi Ram. They were identified by the Clerk of Mr. P.N. Relan Advocate. He made an entry in his register against Sr. No. 3974 against which Raj Singh signed. He made entry against Sr. No. 3975 in that register, against which, Jai Chand son of Bhupan signed. He regularly maintained that register. Through affidavit Ex.P1, Jai Chand purports to have sworn that he had been made to sign or thumb mark one will by Ram Sarup and Parkash sons of Mange Ram of Village Thana Kalan, when he was ignorant of the contents of the will. If the Will is proved to have been signed by him, his signatures should be viewed as of no effect. Through affidavit Ex.P2, Raj Singh purports to have sworn that he had been called upon to attest one Will and he attested that Will when he was given to understand that this Will had been executed in favour of Smt. Zehro wife of Sube Singh and her daughters named Raj Dulari, Raj Bala, Kamlesh and Sudesh. He swore that if Will purports to manifest something else, his signatures be taken as of no effect. Affidavit Ex.P2 was put to Raj Singh DW2. In his cross-examination, he stated that one affidavit was got attested from Partap Singh Dahiya Advocate. Affidavit Ex.P2 was not signed by him. There is one application (Ex.P1). On this application, some other exhibit mark should have been put. Raj Singh stated that this application was written by him addressed to the Deputy Commissioner. It is in his hand and signed by him. In this application also, the purports to have narrated the same narration, which he purports to have narrated in affidavit Ex.P2. It was submitted by the learned counsel for the appellants that Will Ex.D1 is natural. It is a valid and genuine Will. Merely because Jai Chand the other attesting witness of the Will had played foul and had chosen not to support the Will. It should not be viewed by the Court as a suspicious circumstance. Fact that Jai Chand was playing foul with them is apparent that he was given up by the defendants as won over. It was submitted that there is no dent so far as the statement of Dalbir Singh DW3 the other attesting witness of this Will is concerned. For proving this Will, only one attesting witness is required to be produced. If the Will is natural and has brought out the true intention of the testator and has been supported by at least one attesting witness, it should be given effect to notwithstanding that the other attesting witness has not chosen to support it and has played foul. It was submitted that in this case, the requirements of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act have been satisfied and, therefore, Will should be taken to have been proved. It was submitted that some how or the other, the husband of Smt. Raj Dulari caught hold of Jai Chand and Raj Singh and got their affidavits prepared, took them to Shri Partap Singh Dahiya Advocate and got those affidavits attested on 9.6.93 and after those affidavits had been got attested, this suit was filed on 14.6.93. It was submitted that affidavits Ex.P1 and P2 could not have been considered when they had not been proved. It was held in Prem Singh and Ors. v. Gurdial Singh and Ors., (1999-3)124 PLR 314 that in a contested matter like Will, it will not be proper to consider the affidavit given by a witness." In the case of Prem Singh and others (supra). Amar Singh alias Amru was alleged to have made a will bequeathing the property to two of his sons viz. Prem Singh and Punjab Singh. The Will was dated 1.4.76. Amru died on 30.9.84. Will was challenged by another son of Amru namely Gurdial Singh. It was a registered Will attested by Ram Kishan and Radha Kishan Advocate. Attestation of Will by Shri Radha Kishan Advocate was not proved. Shri Radha Kishan Advocate was not examined as a witness though he had given his own affidavit. It was held that "in a contested matter like the present one, it will not be proper to consider any such evidence, which may be tried to have been produced by way of affidavit.
7. In the case in hand, the onus to prove the Will was on Ram Sarup etc. defendants. Issue was whether Sube Singh had executed Will on 5.1.88 in a sound disposing mind. When application Ex.P1 addressed to the Deputy Commissioner was put to Raj Singh he stated that this was in his hand and was bearing his signatures and he had got affidavit attested from one Partap Singh Dahiya. It was a sufficient indication to the defendants how plaintiffs were viewing the Will. It would bear repetition that it lay upon defendants to prove by reliable and convincing evidence of a highly unimpeachable character that Sube Singh had executed Will Ex.D1 in their favour whereunder he had given them the major chunk of the share of his property and had excluded his daughters altogether. Will Ex.D1 is not registered, Sube Singh died on October 15, 1988. He thus remained alive for about 10 months. Sonepat is at a distance of 10/15 KMs from Village Thana Kalan. It is connected by road. Will could be got scribed from a professional scribe at Sonepat. It could be got registered from Sub Registrar at Sonepat. Learned counsel for the appellants submitted that Will is not required by law to be registered. Fact that will is unregistered does not detract from its genuineness and validity. It was submitted that registered will stands on the same footing as an unregistered will. In Shmt. Pritam Kaur and Ors. v. Chanan Singh and Ors., 1985 PLJ 488, it was held that "merely because Will is unregistered despite the fact that testator died after four years of the execution of the Will, no suspicion can be raised with regard to the genuineness of the Will. Similarly it is not a suspicious circumstance if the testator has disinherited his widow and two daughters. There is nothing unnatural or unofficious about the Will when the testator belonging to agricultural tribe preferred to give property to the male members of the family. It was a will executed by one Ujagar Singh in favour of his sons to the exclusion of his widow and two daughters and it was an unregistered Will. Will was up held. It was held that the Will was not surrounded by any suspicious circumstances. It was held that the agricultural tribe had not totally reconciled themselves with the Hindu Succession Act and instead of allowing ancestral property to go into the hands of strangers, landowner preferred to give property to the male members of the family.
In Mathew Jacob v. Ms. Salestine Jacob, 1998(3) RCR (Civil) 557 it was held that "to prove the Will, it would be sufficient if only one attesting witness is examined. Provisions of Section 68 of the Evidence Act stand fully complied with if one attesting witness is produced. Will can be said to have been duly proved if it is proved by examining one attesting witness only." In this case, Will can be said to have been proved when the defendants had examined one of the attesting witnesses namely Dalbir Singh DW3. Question is whether the Will is natural and the testator wanted to execute it and confer substantial benefit on his brothers to the absolute exclusion of his daughters. It was submitted by the learned counsel for the appellants that merely because natural heirs had been excluded, Will should not be viewed with suspicion because in every case where there is a will, there will be exclusion of natural heirs. If the succession was to take place according to law of succession, there will be no necessity of executing a Will by the holder of the property. In support of this submission, he drew my attention to Rabindra Nath Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs and Ors., AIR 1995 Supreme Court 1684 where it was held that debarring natural heirs should not raise any suspicion. It is true that merely because natural heirs have been deprived it should not raise suspicion in the mind of the court as to the genuineness of the Will.
8 In this case, however, there are some suspicious circumstances attending the execution of the Will. Sube Singh was owning about 15 acres of land. He had no son and he had four daughters only. In the Will, the recital is that all his daughters are married and that he is willing away 1/5th of his share in favour of his wife and 4/5th of his share in favour of his brothers Ram Sarup and Parkash. It is an unnatural and unofficious disposition. However, heartless Sube Singh was, he would not have excluded his daughters altogether. After all, daughters were his own off spring. A man would prefer his daughter to his brother as the saying goes blood is thicker than water. Brothers are viewed as collaterals (shareek). Daughters are looked upon with love and affection when one is sonless. After all daughters were his "be all and end all. They were the cynosure of his eyes. There is no convincing reason coming forth why Sube Singh deprived his daughters altogether. He has not made any provision for his daughters. These days, there is absolute transformation in the thinking of the people even belonging to the agricultural tribe. They don't view daughters as Begaha dhan. They view them as their own off spring vis-a-vis their brothers and nephews, whom they take to be strangers and removed from them. People belonging to the agricultural tribe might prefer their brothers and nephews to their own daughters if there were some special affinity/tie connecting them with their nephews/brothers. Learned counsel for the appellants submitted that this will should not be viewed as unnatural as Sube Singh bequeathed 1/5th of his share in favour of his wife Zehro. It was submitted that fact that he bequeathed to Smt. Zehro shows that the Will was natural and he was cognizant what he was doing. Suffice it to say, bequest in favour of Zehro appears to have been devised by Ram Sarup and Parkash so as to give the Will colour of genuineness and naturalness. It was held in Smt. Sushila Devi v. Pandit Krishna Kumar Missir and Ors., AIR 1971 Supreme Court 2236 that "non-bequest of property to children of testator does not make the will invalid if the execution of will is satisfactorily proved. If the bequest made in a will appears to be unnatural the court has to scrutinize the evidence in support of the execution of the will with a greater degree of care than usual. The onus to prove a Will must be on the propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus, where, however, there are suspicious circumstances, . the onus would be on the propounder to explain them to the satisfaction of the court before the Will can be accepted as genuine.
9. In this case, Will Ex.D1 was not scribed by a professional scribe. It is unregistered. It could be got registered at Sonepat, which is at a distance of 10.15 KMs from village Thana Kalan particularly when the testator remained alive for about 10 months, one of the attesting witnesses has not come forth to support the execution of the Will. Evidence of the scribe does not inspire absolute confidence in the mind of the Court that the testator wanted to execute the Will and confer substantial benefits on his brothers to the exclusion of his daughters, who were cynosure of his eyes.
10. Learned counsel for the respondents submitted that there can be no reapprisal of evidence by the High Court in second appeal. In support of this submission, he drew my attention to Vrindavanibai Sambhali Mane v. Ramchandra Vithal Ganeshkar and Ors., AIR 1995 Supreme Court 2086. It was submitted that in this case the trial Court appraised the evidence. First Appellate Court reappraised evidence and came to the conclusion that will set up by Ram Sarup and Parkash was not genuine one this court cannot reappraise evidence and come to the conclusion that Will Ex.D1 was genuine. It is true that in second appeal, there can be no reappraisal of evidence. But the High Court can if it comes to the conclusion on going through the record that the findings of fact arrived at by the Courts below are based on misappreciation of evidence or are based on irrelevant evidence or on ignoring the relevant evidence thus bringing about miscarriage of justice. After all duty of the courts is to do justice, Courts cannot allow injustice to stay.
11. For the reasons stated above, this appeal fails and is dismissed.