Punjab-Haryana High Court
Salinder Kaur Widow Of Prem Singh And ... vs Kundan Singh Son Of Nagina Singh And ... on 30 October, 2013
Author: K. Kannan
Bench: K. Kannan
RSA No.3137 of 1986 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.3137 of 1986
Date of Decision.30.10.2013
Salinder Kaur widow of Prem Singh and others .......Appellants
Versus
Kundan Singh son of Nagina Singh and others ......Respondents
Present: Mr. Rahul Sharma-I, Advocate
for the appellants.
Mr. Arun Jain, Senior Advocate with
Mr. Arnav Kumar Sood, Advocate
for the respondents.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest? Yes
-.-
K. KANNAN J.
1. The suit for declaration and for recovery of possession, which was dismissed, was set aside in Appellate Court securing to the plaintiffs decree for recovery of possession. In so doing, the Court was finding the Will propounded by the defendants as having been executed by Prem Kaur as brought about under vitiating circumstances and decreed the suit for recovery of possession finding the plaintiffs to be distant 7th degree collaterals of the deceased Prem Kaur's husband and heirs at law. The defendants are the appellants before this Court.
2. The suit was in relation to the estate of Prem Kaur and the plaintiffs' claim was that they are legal heirs of Prem Kaur, her husband having pre deceased her and Prem Kaur died without any legal issues. The plaintiffs contended that the Will propounded by the defendant, Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -2- who was a stranger to the family was not true. The defendant was admittedly a resident of the same village where Prem Kaur was living and who was attending on Prem Kaur till her death. It was also admitted that it was the defendant, who had performed the obsequies and the defendant's plea was that Prem Kaur had earlier executed a Will on 05.06.1972 and later revoked the same by executing another Will on 16.04.1975 bequeathing some properties in his favour and some properties in the name of a Gurdwara and duly registering the Will. The witnesses and scribe had been examined and while the trial Court upheld the Will and dismissed the plaintiffs' suit, the Appellate Court reversed it on a finding that the Will had been executed by a person, who has not been mentally sound. Of the two witnesses, one witness was stated to be unreliable as a person, who had denied his own evidence in an earlier proceeding where Prem Kaur herself was a party and yet another person was interested in the defendant to secure the bounty and therefore, his evidence could not be relied on. The defendant had also examined the registering officer but the Appellate Court held that the registering officer cannot speak about the mental condition of the deceased and no reliance could be placed to uphold a Will on the basis of his evidence.
3. The case has been brought for hearing on the substantial question urged by the counsel that the appreciation of evidence by the Appellate Court was perverse in its approach and legally untenable. The defendant would also contend that the plaintiffs themselves had not proved the locus standi to claim as heirs of Prem Kaur and the Court had assumed that the defendant had not challenged heirship when there was Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -3- a specific denial in the written statement.
4. As regards the Will said to have been executed by Prem Kaur at the trial, it seemed that the thumb impression of Prem Kaur herself was not in dispute. Even the fact that she was a party to the document was not in dispute but what was contended was that she was old and infirm and was fickle minded. She had no children and she had executed literally four Wills one after another. There was evidence of the plaintiffs to the effect that her own brother Shadi Singh, who was examined by the plaintiffs had given evidence to the effect that she was not in a position to consider good or bad for nearly four years prior to her death and that even apart from the Will propounded by the defendant, she had executed three other Wills. The mental condition of Prem Kaur was sought to be set in dim light by reference to an earlier suit filed in the year 1962 challenging an adoption said to have been made of one Arjan Singh son of her brother Shadi Singh as invalid on account of the fact that she was mentally unsound and she could not have taken the child in adoption. She had filed the suit in her own name and not through any representative to contend that the alleged adoption through a registered instrument was invalid but the suit was dismissed for non-prosecution. The scribe in the Will, one Ran Singh had actually been brought as witness by Prem Kaur in the earlier suit and he was reported to have given a statement on oath that Prem Kaur was mentally ill. When the witness was examined to testify on the due execution and attestation of the Will, he was confronted with his statement as a witness in the earlier suit made but he denied having made such a statement. The contradiction in his evidence was elicited Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -4- and the Court reasoned that a person, who was prepared to deny that he had ever stated that Prem Kaur was mentally ill cannot be stated to be a truthful witness even as regards the genuineness of the Will. If she had executed four Wills, the Court observed that it must only be taken that she was prepared to execute any document without understanding its import and therefore, she could not have been sane.
5. Learned counsel appearing for the appellants would point out that the inference that Prem Kaur was not mentally sound was purely conjectural, divorced from the nature of evidence which was brought before Court. If the witness was not supporting his statement which he had made earlier, it could not be that his entire evidence even regarding the attestation of the Will ought to be untrue. If the actual execution of the Will was admitted at the trial with the witness and the scribe speaking independently about the fact that Prem Kaur had executed the Will and she wanted the disposition to be made in favour of the defendant, who was actually supporting her till her death, then there was nothing artificial or unnatural about the disposition to suspect that it must have been at the instance of a person, who was mentally unsound. The counsel would also point out to me that the mere fact that the person is old and infirm ought not to be in issue at all to discredit the Will if the witnesses supported her free volition and there was nothing artificial about such an execution. It has been held in Sridevi Vs. Jayarana Shetty AIR 2005 SC 780 that the mere fact that a person who was old and that a person had died about 15 days after the execution of the Will could not be taken to be a suspicious circumstance. The suspicious circumstance itself must be substantial in Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -5- that the disposition must be such as to create a doubt in the mind of the Court that there could have been no such disposition. In this case, the defendant was admittedly the person with whom the deceased was living during her last days. There was evidence to the effect, which the two Courts below concurred, that the deceased was under the care of the defendant till her death. The trial Court had observed that admittedly there was another Will on 05.06.1972 under Ex.P9 and in the Will propounded by the defendant there was no reference to the earlier Will but it had merely stated that it was her only last Will and testimony. This according to the lower Appellate Court was suspicious. A recital in an instrument that it was the only Will or it was the last Will are a manner of writing and the absence of a specific reference to an earlier Will ought not to be seriously at issue. In this case, the person who was a beneficiary under the earlier Will under Ex.P9 was himself examined in Court and he had stated that he was not making any claim to the property and he knew that Prem Kaur had executed another Will in favour of the defendant. The plaintiffs' witness PW5, who was the brother of the deceased was not prepared to go as far as to say that his sister did not execute the Will. He only stated that when Prem Kaur started executing the Wills, he stopped going to Prem Kaur's (house). His evidence in cross-examination was that "the Will which was executed by Prem Kaur in favour of Prem Singh and Gurdwara is her third Will. This is last will." When there was a clear admission regarding the existence and execution of the Will and spoken to by the witnesses and scribe, the burden was clearly on the plaintiffs to show the existence of any of the vitiating circumstances. Section 61 of the Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -6- Indian Succession Act, 1925 which refers to fraud, coercion or importunity that would void a document sets out through illustration
(vii) as follows:-
"(vii) A being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his will in the manner recommended by B. The will is not rendered invalid by the intercession and persuasion of B."
While the burden of proving the mental condition of the testator was always on the person who propounded the same, the vitiating circumstances attendant on the Will such as inability to understand the instrument or exercise of fraud or coercion must be proved by the person, who contended for such a case. There ought to have been positive evidence about the mental condition regarding her mental illness as sought to be contended by the plaintiff. The Court has merely allowed itself to be persuaded to a belief that she must have been insane because she had filed a suit about 20 years earlier denying an adoption on the ground that she was mentally ill. It must be observed that the suit had been filed in her own name and not through any next friend representing her. The brother, who was examined as PW5, was only contending that she did not understand good or bad but it was not the same thing as stating that her sister was insane or mentally ill.
6. Learned Senior Counsel appearing on behalf of the respondent would contend that the woman, who went about executing several Wills one after another must be taken to be a person who was not mentally sane. It could probably indicate a state of indecision in her Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -7- old age and despondency but it ought not to be taken as a justification enough to discredit the genuineness of the Will.
7. The finding regarding the Will as not genuine is absolutely untenable and without reference to the actual evidence tendered by the defendant in Court. The trial Court had correctly considered the issue and was referring to the admission of the plaintiff's witnesses themselves as regards the execution of the Will and had correctly come to the conclusion that the Will was genuine. The reversal of the decision is erroneous and I set aside the same.
8. If the Will is upheld, the question whether the plaintiffs are heirs at law and whether the same has been admitted by the defendant would not assume any significance but I must observe that the plaintiff had made no attempt to prove even the actual relationship between Prem Kaur and themselves. The contention that they are 7th degree collaterals of her husband is hardly sufficient when the persons who ought to have known the nature of relationship must give cogent evidence regarding the genealogy. Section 50 of the Indian Evidence Act is an exception to the principle of hearsay as regards the relationship between the parties, who in the normal course would have known the exact relationship. Section 50 reads as under:-
"Section 50. Opinion as to relationships. Where the Court has to form an opinion as to relationship of one person to another and opinion expressed by conduct as to the existence of such relationship of any person who as a member or his family or otherwise has special means of knowledge on the subject is a relevant fact."
The illustration given in the Section relates to evidence regarding marriage of any two persons and how the society treated them or about Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -8- the relationship of a legitimate son and how he is treated by members of the family. Closeness of relationship of husband and wife or son could be matters for some persons to see and depose in Court. If, on the other hand, somebody must be giving evidence that plaintiffs were related to deceased Prem Kaur by 7 degrees downwards, it is rather a strange way of giving evidence of propinquity of relationship between the parties. Section 50 of the Indian Evidence Act which is an exception to the general rule of hearsay merely makes relevant certain types of evidence and does not make the quality of evidence as conclusive. In this case, there is absolutely no evidence worthwhile to see that the plaintiffs were heirs at law to Prem Kaur. Learned Senior Counsel appearing on behalf of the defendant would accept that there is a denial of relationship and heirship of the plaintiffs in the written statement but at the time of trial no serious contention was taken in that regard before the Courts below and therefore, the trial Court has observed that the defendant had not been able to establish that the plaintiffs had no locus standi to institute the suit. The Appellate Court had set about contentious issues for adjudication after observing that it was not denied that the plaintiffs were 7th degree collaterals of the deceased Prem Kaur. This, according to the senior counsel for respondent, ought to be taken as an observation made on the submissions made by the counsel and if he was not denying the heirship of the plaintiffs at the Appellate Court, it could not be done for the first time in the second appeal. I cannot accept this argument, for the lower Appellate Court has not observed anywhere that the plaintiffs' heirship to the deceased Prem Kaur was admitted. If there is an observation anywhere that the Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh RSA No.3137 of 1986 -9- counsel had admitted, it ought to be taken as a binding admission for the party also. If the Court, on the other hand, was observing that it was not denied that the plaintiffs were heirs, it was merely a manner of observation that no argument had been made. It cannot amount to forsaking a right of defence which is founded on pleadings. I will find also that when the plaintiffs' locus standi to institute the suit had been challenged there ought to have been sufficient and appropriate evidence bringing the actual relationship of the plaintiffs with the deceased Prem Kaur and their entitlement to properties as heirs especially when the son of Shadi Singh was reported to have been taken in adoption by Prem Kaur and he was alive. Possession is 9-points in law and person from whom the property was sought to be recovered must prove not merely that the Will which the defendant was propounding was not true but that also that the plaintiffs who were seeking to wrest possession had better claims over the property than the defendant, who was a stranger to the family.
9. The decision rendered by the lower Appellate Court was clearly erroneous and is bound to be set aside. The second appeal is allowed with costs. Counsel's fee ` 10,000/-.
(K. KANNAN) JUDGE October 30, 2013 Pankaj* Kamboj Pankaj Kumar 2013.10.31 11:01 I attest to the accuracy and integrity of this document Chandigarh