Punjab-Haryana High Court
Khanda Singh And Anr. vs Natha Singh And Ors. on 22 April, 1994
Equivalent citations: (1994)107PLR742
JUDGMENT V.K. Jhanji, J.
1. This defendants' second appeal.
2. The dispute relates to the property of Jaswant Singh who died issued less and without wife on 5.10,1978. following is the admitted pedigree-table of the parties Jhanda Singh ____________________________________________________________________ : : :
Sucha Singh Jaswant Singh Kundha Singh
(died issue less
and without any :
descendent). :
:
______________________________________ ________________
: : : :
Khanda Singh Chatain Kaur Natha Chhota Singh
(Defendant (daughter Singh (Plaintiff)
No. l) Deft. No. 4) (Plaintiff)
_______________________________________
: : :
Makhan Darshan Parkash
Singh Singh Kaur
Deft. No. 2) (Deft. No. 3)
Plaintiffs, who are the nephews of Jaswant Singh, filed suit for possession inter alia on the ground that after the death of Jaswant Singh, they became the owners of 1/2 share of the land in dispute, but the defendants on the basis of fabricated and fictitious Will took possession of the entire land, and got a mutation of inheritance sanctioned in their favour. Plaintiffs also sought decree for permanent injunction, restraining the defendants from alienating the land.
3. Defendants No. 1 to 3 contested the suit. In their written statement, they pleaded that Jaswant Singh used to live with Khanda Singh, i.e. defen dant No. 1 and was being served by them. Jaswant Singh had a great love and affection for them and, accordingly, he executed a registered Will dated 4.10.1978 in favour of defendants No. 2 and 3.
4. On the pleadings of the parties, the following issues were framed :-
1. Whether Jaswant Singh, deceased, executed a valid will in favour of defendants No. 2 and 3? OPD
2. Relief.
The trial Court as well as the first appellate Court on appreciation of the evidence, found issue No. 1 against the defendants and accordingly held that propounders of the Will have failed to dispel the material suspicious circumstances surrounding the execution of the Will in question. As a result of this finding, suit of the plaintiffs was decreed. Defendants have now impugned the judgments and decrees of the Courts in this second appeal.
5. Learned counsel for the appellants contended that the Courts below did not apply judicial mind to appreciate the evidence brought on record. He further contended that merely because the testator died one day after the registration of Will, is not indicative of the fact that he was not in a sound disposing mind or there are suspicious circumstances surrounding the Will. He read in extenso the statements of attesting witnesses as well as of the scribe, and contended that from the evidence stands fully established that the testator of his own volition executed the Will in favour of defendants No. 2 and 3. He has also placed on record the synopsis of his arguments.
6. It is not necessary to cite various decisions of the Supreme Court with regard to mode of proving the Will. It stands settled that the Will is to be proved like any other document. The test to be applied is the usual test of the satisfaction of the prudent mind in such matters. Section 63 of the Succession Act requires a Will to be attested by atleast two witnesses. Where the execution of the Will is surrounded by suspicious circumstances, the suspicion cannot be removed by the mere assertion of the propounder 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. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in a case where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. In connection with the execution of the Will which is surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved.
7. Exh. D-l is the Will on the basis of which defendants No. 2 and 3 claim that they have become absolute owners of the property of Jaswant Singh, owner. The WilMl alleged to have from executed on 4.10.1978. Tes tator died on 5.10.1978, ie within few hours of the execution of the Will. Will is in favour of Makhan Singh and Darshan sons of Khanda Singh who is the real nephew of testator, Jaswant Singh. Plaintiffs are the nephews of Jaswant Singh, being the sons of Kundha Singh. In the absence of Will, plaintiffs would have succeeded to the property of Jaswant Singh, along with Kundha Singh. It was for the propounders to bring on record that Jaswant Singh had no love and affection for the plaintiffs. No evidence to that effect has been brought on record by the propounders. No reasons find mention in the Will for excluding the plaintiffs. Apart from this, propounders have failed to dispel the other suspicious circumstances surrounding the execution of the Will. According to Gurdev Singh, D.W. 2, Jaswant Singh was lying admitted in the clinic of one Dr. Nagpal two-three days prior to the execution of the Will. Further, according to him, he took Jaswant Singh from clinic to Bhatinda in his own car and dropped him back after the execution of the Will, whereas Jangir Singh, DW-3, has not corroborated the statement of DW-2, Gurdev Singh. According to Jangir Singh (DW-3), Jaswant Singh, testator, and Gurdev Singh had gone to Bhatinda enroute his house, where they left for Bhatinda by train. Both of them in their statements have stated that Jaswant Singh died two-three days after the execution of the Will, whereas it now stands admitted that Jaswant Singh died a few hours after the execution of the Will. Gurdev Singh, DW-2, has also stated that Dr. Nagpal had declared Jas want Singh's case to be hopeless one and, for that matter, he was removed to the village where he died. This part of the statement is indicative of the fact that condition of Jaswant Singh, a day prior to his death was very critical and the doctor had lost all hopes of his recovery. It was for this reason that he was sent back to his village where he died in the early hours of the morning. Dr. Nagpal who treated him during his illness before his death was not examined. In the facts and circumstances of this case, it was clearly incumbent upon the present appellants to prove that at the time of execution of the Will, the testator was in a sound mental health and thus, knew, understood and approved the contents of the Will. Appellants in this case have failed to discharge the burden and satisfy the conscience of the Court by proving that the testator had a sound disposing mind at the time of execution of the Will. Registration of a Will itself is not sufficient to prover the sound disposing mind of the testator. The mere fact that the Will is registered one, is not enough to hold that the Will was duly executed. It is not unknown that registration may take place without executant really knowing what he was registering. Before the document could be accepted as the last Will of the testator, the propounders were required to dispel each and every suspicious circumstances surrounding the execution of the Will. In the present case. I am satisfied that the Courts below have rightly concluded that the Will, Exh. D-1, is not proved to be a genuine Will executed by Jaswant Singh in favour of defendants No. 2 and 3 with a free disposing mind.
8. Consequently, I find no merit in this appeal and, therefore, dismiss the same, but with no order as to costs.