Punjab-Haryana High Court
(O&M) Kalia vs Smt. Daulti & Others on 29 July, 2024
RSA-312-1992
1992 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA
RSA-312-1992 (O&M)
Reserved on: 01.05.2024
Date of Pronouncement: 29.07.2024
Kalia ...Appellant
V/S
Daulti and others ...Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Ms.Naveender P.K. Singh, Advocate
for the appellant.
Mr.Sunish Aggarwal, Advocate
for the respondents.
****
HARKESH MANUJA J.
By way of present appeal, challenge has been laid to the judgment and decree dated 12.12.1991 passed by the Court ourt of Learned District Judge, Ambala reversing the judgment and decree dated 02.12.1988 passed by the Court of Sub-Judge Judge (Second Class),, Ambala, resulting into decreeing the suit for declaration and possession to the extent of ½ share of 140 Kanal 16 Marla of land situated in Village illage Gobindpur, Tehsil Naraingarh District Amba Ambala, la, in favour of respondent No.1/ plaintiff (hereinafter referred d to as 'respondent No.1') on the basis of natural succession being the daughter of Siria.
2. Briefly stating, half share of 140 Kanal 16 Marla of land situated in Village illage Gobindpura, Tehsil Narayangarh Narayangarh, District Ambala was owned by Siria who unfortunately ly expired in August 1979. On the basis of a registered Will ill dated 12.07.1976 12.07.1976, mutation No.532 532 was entered in favour of appellants on 28.08.1979. Respondent No.1,, claiming herself to be one of the daughters of Siria filed suit for SANJAY GUPTA 2024.08.14 12:13 1 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) declaration, questioning the validity of Will dated 12.07.1976 allegedly executed by Siria in favour of appellants ppellants being based on fraud and fabrication, besides claiming possession of the suit property by impleading the legal heirs of her other sister, namely namely, Birji as defendants no. 3 to 8. An attempt was though made by respondent No.1,, challenging the mutation dated 28.08.1979, before the revenue authorities, however, the same did not find favour.
3. Suit was contested by appellants/defendants No. o. 1 & 2 (hereinafter referred to as 'appellants'),, having filed a joint written statement, denying the relationship of respondent no.1 with Siria being daughter while pleading that neither she;
she nor even defendants No. o. 3 to 8 were entitled to claim any right in the suit land. It was furtherr pleaded that the Will ill dated 12.07.1976 was a valid document and the mutation was thus rightly entered in their name by the revenue authorities.
Appellants also pleaded that even the appeal filed at the instance of respondent No.1, No.1, before the revenue auth authorities, orities, challenging the mutation in favour of appellants ppellants was dismissed while accepting the validity of aforementioned Will ill and the suit was was, therefore, hit by the principle of res judicata.. They further pleaded that the testator was looked after by them during his lifetime who being satisfied with their services executed the Will ill in question and based theirupon, the appellants were in possession of the suit land and as such respondent No.1 was having no claim therein.
4. Respondent No.1 filed replication to the aforementioned written statement while controverting the averments made therein and SANJAY GUPTA 2024.08.14 12:13 2 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) reiterating those made in the plaint. On the basis of pleadings of the parties, the he following issues iss were framed:-
"1) Whether plaintiff is the daughter of Siria? OPP.
2) Whether Siria executed a valid Will in favour of defendants No.1 and 2? OPP.
3) Whether the suit is not maintainable in the present form? OPD
4) Whether the plaintiff has no locus standi to file the suit? OPD
5) Whether the plaintiff is estopped from filing the present suit? OPD
6) Whether the suit is barred by time? OPD
7) Whether the suit is bad for misjoinder and non non-
joinder of parties? OPD
8) Relief."
5. The trial Court
ourt vide its judgment and decree dated 02.12.1988 though held respondent no.1 to be daughter of Siria,, however, upheld the validity of Will ill dated 12.07.1976 executed by Siria in favour of appellants, appellants the same been proved in accordance with the statutory requirements equirements provided under Section 63 of the Indian Succession Act, 1925 read with Section ection 68 of the Indian Evidence Act,1872. Certain suspicious circumstances allegedly surrounding the Will as put-forth forth by respondent No.1 were discarded.
6. Aggrieved of the judgment and decree dated 02.12.1988 passed by the trial court, respondent No.1 o.1 filed first appeal which came to be allowed by the Court ourt of Learned District Judge Judge, Ambala vide its judgment and decree dated 12.12.1991 thereby granting a decree for declaration aration and possession as prayed for by respondent No.1 in her SANJAY GUPTA 2024.08.14 12:13 3 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) favour while ignoring the Will ill in question dated 12.07.1976, being surrounded by suspicious circumstances.
7. While making her submissions, learned counsel for the appellants ppellants submitted that most most of the circumstances as pointed out by the first Appellate Court Court were neither individually individually; nor cumulatively sufficient to be termed as suspicious as the purpose of Will ill was mainly to divert from the line of natural succession, and thus exclusion of natural ural heirs i.e the two daughters in the present case by the testator could not have been taken to be a suspicious circumstance. She further submitted that as the testator was being looked after by the beneficiaries/ appellants during his lifetime, their pa participation rticipation at the time of execution of Will ill was not to be taken as a suspicious circumstance. She also submits that once it was established on record that the attesting witnesses to the Will ill in question were from Village Dhanana which was abutting Village Govindpur to which the testator belonged, mere fact that the witnesses were from different Village illage could not have been treated as a suspicious circumstance. In support of her submissions, learned counsel ounsel relied upon Mahesh Kumar (Dead) by L.Rs. Vs. Vinod Kumar and others, others, 2012 (2) RCR (Civil) 493 and Pentakota Satyanarayana and ors. Vs. Pentakota Seetharatnam and Ors.,, (2005) 8 SCC 67. Para 20 of Mahesh Kumar Kumar's case (supra) and that of para 25 of Pentakota Satyanarayana's case (supra), supra), respectively, being relevant are reproduced hereunder:
hereunder:-
"Para 20 of Mahesh Kumar's case "20. In Uma Devi Nambiar v. T.C. Sidhan (supra), the Court held that active participation of the SANJAY GUPTA 2024.08.14 12:13 4 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) propounder / beneficiary in the execution of the Will or exclusion of the natural heirs cannot lead to an inference that the Will was not genuine. Some of the observations made in that case are extracted below:
"A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has be been en given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propo propounder under succeeds in removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba Kadamba.) .) In Rabindra Nath Mukherjee v. Panchanan Banerjee it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whol whole e idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in SANJAY GUPTA 2024.08.14 12:13 5 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) some cases they are fully debarred and in some cases partly." (emphasis suppl supplied) The same view was reiterated in Pentakota Satyanarayana v. Pentakota Seetharatnam (supra)."
"PARA 25 OF Pentakota Satyanarayana's case
25. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors Ors, (2005) 2 SCC 784. In the said case, it has been held that the onus to prove the will is on the pr propounder opounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attestin attesting g the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case."
7.1 Learned counsel while placing reliance upon the decision made by the Hon'ble Supreme Court in case of Surinder Pal and others Vs. Dr.(Mrs.) Saraswati Arora and another another,, AIR 1974 SC SANJAY GUPTA 2024.08.14 12:13 6 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) 1999 submitted ted that the propounder having proved the will in question,, besides, des, having explained the suspicious circumstance, the same should have been accepted by the first Appellate Court especially when the respondent No.1 failed to discharge the burden to prove any kind of fraud or fabrication as regards the execution of Will.. Relevant portion from Para 7 of the Surendra Pal's case (supra) is reproduced hereunder:-
"7. In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on hi to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, tthe condition of the testator's mind, the dispositions made in the will which may be unnatural or unfair or improbable when considered in the light of the relevant circumstances. Iff the caveator does not discharge the burden which rests upon him in establishing hing the circumstances which show that the will had been obtained by fraud or undue influence a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind. The observations of the Privy Council in Motibai Hormusjee Kanga v. Jamsetjee Hormusjee Kanga support the above proposition. Mr. Ammer Ali observed at p. 33::SANJAY GUPTA 2024.08.14 12:13 7 I attest to the accuracy and authenticity of this document
RSA-312-1992 1992 (O&M) "It is quite clear that the onus of establishing capacity lay on the petitioner. It is also clear that if the caveator impugned the will on the ground that it was obtained by the exercise of undue influences, excessive persuasion or moral coercion, it lay u upon him to establish that case."
In the light of what has been stated if the various requirements of a valid will are established, then as observed by the Privy Council in Motibai Hormusjee Kanga's came at p. 33:
"A man may act foolishly and even heartlessly; if he acts with fu full comprehension of what he is doing the Court will not interfere with the exercise of his volition."
8. On the other hand, while supporting the reasoning recorded by the first Appellate A Court, learned counsel ounsel for respondent No.1 submits that in the given facts and circumstances of the case in hand wherein admittedly, the relationship between the testator and respondent ent No.1 was normal and testator was even on visiting terms with her daughter/ respondent No.1,, her exclusion against appellants,, who allegedly egedly happened to be the sons of cousin brother of the testator was wholly unnatural. He further submit submitted that even the active participation of the beneficiary, at the time of execution of Will ill in question was clearly established and the witnesses to the Will were not from the same village to which the testator belonged and in such circumstances the Will in question been surrounded by suspicious circumstances was liable to be discarded.
discarded. In support, learned counsel SANJAY GUPTA 2024.08.14 12:13 8 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) for respondent No.1 placed reliance upon Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao and others others, AIR 2007 SC 614 and Jaswant Kaur vs Amrit Kaur & others, others AIR 1977 SC 74 74, decided on 25.10.1976.. Relevant extract of Niranjan Umeshchandra Joshi's case (supra) as well as that of Jaswant Kaur's case (supra) are reproduced hereunder for reference:-
reference:
"PARA 34 OF Niranjan Umeshchandra Joshi's case (supra)
34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:-
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) Where propounder himsel himselff takes prominent part in the execution of Will which conf confers ers on him substantial benefit."
RELEVANT EXTRACT OF Jaswant Kaur's case (supra) "There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others. (1) The Court, spe speaking aking through Gajendragadkar J., laid down in that case the following positions :--
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.SANJAY GUPTA 2024.08.14 12:13 9 I attest to the accuracy and authenticity of this document
RSA-312-1992 1992 (O&M)
2. Since Section 63 of the Succession Act requires a will to be attested, ed, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness itness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in w which hich the will came to be executed.
(1) [1959] Supp. I S.C.R. 426.
This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the on onus us which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution o off the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that th those ose like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of SANJAY GUPTA 2024.08.14 12:13 10 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) suspicious circumstances makes the initial onu onus s heavier and therefore, in cases 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.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrumentt produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasona reasonable ble doubts in the matter...."
9. I have heard learned counsel for the parties and gone through the records. I am unable to find substance in the submissions made on behalf of the appellants.
10. In the present case, the relationship of respondent No.1--
Daulti with deceased Siria, being herr daughter was as proved on records from the statement of PW2 Hari Singh, Lambard Lambardar of Village illage Paalotha as well as the admission made by appellant's own witness, DW 3--
SANJAY GUPTA 2024.08.14 12:13 11 I attest to the accuracy and authenticity of this documentRSA-312-1992 1992 (O&M) Shankar Ram. Furthermore, Furthermore the statutory compliance in terms of Section ection 63 of the Indian Succession Act, ct, 1925 read with Section ection 68 of the Indian Evidence vidence Act, 1872, as regards the execution of Will dated 12.07.1976 (Ex. D2) was also proved on record. Thus, the only material issue remained to be dealtt with in the present appeal is as to whether the Will ill dated 12.07.1976,, executed by deceased Siria in favour of appellants was surrounded by suspicious circumstances circumstances.. Discussion in this regards is as follows:-
follows:
10.1 Undoubtedly, execution of a W Will ill by the testator in favour of some of the natural heirs-cum-successor successors while disinheriting few of them, simply cannot be treated as a suspicious circumstance surrounding the Will.. However, disinherit disinheriting the daughters by the testator while executing the Will ill in favour of other relations and nd that too, when the relationship between the daughters and the testator - father was cordial; needs to be looked into as suspicious circumstances. As per the records of the present case, appellant No.1 No.1,, while appearing as DW4 admitted in his cross-examination cross ation that the father father-testator and his daughters were having cordial relations and respondent No.1 No.1-plaintiff plaintiff along with her kids even used to visit her father at Village illage Govindpur. It has also come on record through the deposition of PW1 PW1-Daulti and her son while papearing as PW4 that she used to serve her father and he even used to reside with his daughter daughter; occasionally. In such circumstances, there being no plausible or justified reason for the testator to ignore the daughters in comparison to the alleged nephews, the Will ill in question was apparently unnatural and unfair.SANJAY GUPTA 2024.08.14 12:13 12 I attest to the accuracy and authenticity of this document
RSA-312-1992 1992 (O&M) 10.2. Again, mere presence of the beneficiary along with the testator at the time of execution of the Will ill cannot per se be recorded as a suspicious circumstance. However, in the present case wherein even as per the perusal of admissions made by DW DW3-Shankar Shankar Lal (attesting attesting witness), witness , in conjunction with DW4 DW4-Kalia - appellant No.1,, wherein the active role and participation of the beneficiary who took the testator to Tehsil and also paid the deed eed-writer makes their conduct strongly suspicious especially when they initially denied the relationship of respondent No.1-Daulti with her father-Siria Siria in their written statement, though later while appearing as DW4 admitting her to be his daughter..
Even further, the beneficiaries beneficiaries i.e. appellants even failed to establish on record that the testator-Siria lived with them and they were serving him during his lifetime.
10.3. In the given facts, wherein the daughters were having cordial relationship with their t father-testator testator yet disinherited in comparison to their cousins who admittedly participated actively in the process of execution and registration of the W Will in question, the fact that both the attesting witnesses were from a different Village i.e. Dhanana was having material bearing and also thus thus, needed to be considered as a suspicious circumstance, though the same may be adjoining to Village V Govindpur, especially when at the time of registration of Will ill in question, the testator before the Sub-Registrar trar was attested by lambardar of different Village and even serious doubts were raised about the genuineness and credibility of the deed writer.
11. Thus, in view of the above discussion and the analysis, in the humble opinion of this Court, no illegali illegality ty or perversity can be found SANJAY GUPTA 2024.08.14 12:13 13 I attest to the accuracy and authenticity of this document RSA-312-1992 1992 (O&M) with the reasonings reasoning recorded by the learned first Appellate Court ourt that the Will ill in question dated 12.07.1976,, executed by deceased Siria-
-
father of respondent No.1,, in favour of appellant appellants was surrounded by suspicious circumstances circumsta and the propounder having failed to dispel those, the same was rightly discarded. Resultantly Resultantly, the present appeal being devoid of merits is thus dismissed
12. Pending ending misc. application(s),
(s), if any, shall also stand disposed of.
29.07.2024 ( HARKESH MANUJA )
sanjay JUDGE
Whether speaking/reasoned Yes/No Whether Reportable Yes/No SANJAY GUPTA 2024.08.14 12:13 14 I attest to the accuracy and authenticity of this document