Punjab-Haryana High Court
Smt. Karamjit Kaur And Anr. vs Sukhjinder Kaur And Ors. on 26 April, 1999
Equivalent citations: (1999)122PLR377
JUDGMENT V.K. Jhanji, J.
1. This second appeal preferred by defendants No. 5 and 6 is directed against the judgment and decree of the first Appellate Court whereby on two appeals preferred i.e. one by the plaintiff and the other by defendants No. 1 to 4, judgment and decree of the trial Court has been set aside and suit of the plaintiff for joint possession to the extent of 1/7th share in land measuring 89 Bighas 9 Biswas situated within the revenue estate of village Panjola Tehsil and District Patiala, has been decreed. Trial Court had dismissed the suit.
2. The dispute relates to the estate of Mohinder Singh son of Sher Singh. Mohinder Singh had 5 daughters from his wife Harbhajan Kaur. Harbhajan Kaur died in 1968. He married Karamjit Kaur (defendant No. 6) in January, 1986 and from this wedlock, daughter Amandeep Kaur (defendant No. 5) was born. Plaintiff filed suit against defendants, namely, daughters of Mohinder Singh i.e. defendants No. 1, 2, 3 and 4 from first marriage with Harbhajan Kaur and defendants No. 5 and 6 i.e. daughter of Mohinder Singh from second marriage with Karamjit Kaur and against Karamjit Kaur (defendant No. 6), second wife of Mohinder Singh, respectively. She contended that Mohinder Singh died on 21.7.1988 leaving behind plaintiff and defendants as his legal heirs and thus she is owner of 1/7th share out of the suit land. Hence suit for joint possession.
3. Defendants No. 2 to 4, namely, sisters of plaintiff, filed joint written statement admitting the claim of the plaintiff and also asserted that they are also entitled to 1/7th share each in the suit property and defendant No. 1 did not appear and was proceeded against ex parte.
4. Upon service, defendants Nos. 5 and 6 filed joint written statement contesting the claim of the plaintiff. They contended that Mohinder Singh had executed a valid Will in their favour and, therefore, the plaintiff and defendants No. 1 to 4 are not entitled to any share in the property of Mohinder Singh. They also contended that because of the compromise dated 29.8.1988, suit land has fallen to their share.
5. On the pleadings of the parties, the trial Court framed the following issues:-
1. Whether Mohinder Singh deceased executed a valid will dated 3.7.1988 in favour of Miss Amandeep Kaur and Smt. Karamjit Kaur as alleged? OPD
2. If issue No. 1 is not proved, whether the suit land fall to share of Miss Amandeep Kaur and Smt. Karamjit Kaur through compromise dated 29.8.1988? OPD
3. Whether plaintiff is entitled to 1/7 share as alleged? OPD
4. Relief.
6. Trial Court recorded finding on Issues No. 1, 2 and 3 in favour of defendants No. 5 and 6 and against the plaintiff. In view of the finding on Issues No. 1 to 3, suit of the plaintiff was dismissed with costs. On two appeals preferred i.e. one by the plaintiff and the other by defendants No. 1 to 4, learned Additional District Judge, Patiala, reversed the finding of the trial Court on all the issues and has set aside the judgment and decree of the trial Court and resultantly decreed the suit of the plaintiff for joint possession to the extent of 1/7th share out of land measuring 89 Bighas 9 Biswas. Hence this second appeal by defendants No. 5 and 6.
7. Learned counsel appearing on behalf of defendants No. 5 and 6 has contended that the finding of the first Appellate Court in regard to will dated 3.7.1988 is conjectural and illegal and not sustainable in law. According to the counsel, Will dated 3.7.1988 stands duly proved by the statement of the scribe and one of the attesting witnesses. It is contended that the Will is not surrounded by suspicious circumstances as has been held by the first Appellate Court.
8. In answer to these submissions, learned counsel appearing on behalf of the plaintiff and defendants No. 1 to 4 have contended that the first Appellate Court has not committed any error in disbelieving the Will because execution of the Will is shrouded by suspicious circumstances. It is contended that defendants No. 5 and 6 have failed to explain the suspicious circumstances to the satisfaction of the Court and, therefore, Will set up by the defendants cannot be accepted as genuine.
9. I have heard the learned counsel for the parties and perused the records. It is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1955. Section 63 of ibid Act requires a Will to be attested by at least two witnesses. It cannot be used as evidence unless at least one witness has been called for the purpose of proving, its execution. However, where the execution of the Will is surrounded by suspicious circumstances, the suspicion cannot be removed by mere assertion of the propounder of the Will that the Will bears the signatures of the testator or that the testator was in sound and disposing state of mind when the Will was made. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attended upon the execution of 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.
10. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., A.I.R. 1959 S.C. 443, it has been held that the presence of suspicious circumstances tend to make the initial onus to prove the Will very heavy and unless such onus is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. Besides suspicious circumstances, the Wills propounded may also disclose other infirmities which if proved may render the documents inadmissible in evidence.
11. In Smt. Jaswant Kaur v. Smt. Amrit Kaur, A.I.R. 1977 S.C. 74, it has been held that in a case where the execution of the Will is shrouded in suspicion, its proof ceases to be a simple lis between the parties and in such a case it becomes the duty of the Court to satisfy itself as to whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. The party propounding the Will has to eliminate the existence of suspicious circumstances. If any genuine reasonable or bona fide doubt is created regarding the execution of the Will or the mental faculty of the testator a duty is cast upon the propounder and the beneficiary of the Will to remove the suspicious circumstances by placing satisfactory material on record.
12. Will dated 3.7.1988 is alleged to have been attested by Gurdev Singh son of Balwant Singh and Gurpartap Singh son of Jaspal Singh and scribed by Birinder Singh son of Jaspal Singh. For proving its execution and attestation, defendants No. 5 and 6 examined Gurdev Singh and Birinder Singh, DWs-3 and 4 respectively. In order to prove that it bears signature of Mohinder Singh deceased, defendants No. 5 and 6 examined DW-5 Gopal Krishan Sharma, handwriting expert, who gave opinion that the specimen signature and the, disputed signature of the deceased on the Will are of one person. His opinion has been rejected by the first Appellate Court because his qualification and experience were found to be not such as handwriting expert. DW-5 in the course of his cross examination, admitted that he was working as a Clerk with Shri Sat Pal Sehgal, Advocate from 1957 to 1967 and thereafter he was working with Shri Sehgal in his office. He also admitted that before giving his report, he did not read the report of Dewan K:S. Puri, handwriting expert examined by the plaintiff. On the other hand, Dewan K.S. Puri after considering the writing characteristics of the disputed and specimen signature, in his report, Exh.DW/4A opined that the disputed signature on the Will is not in the handwriting of the person who has written specimen signature marked S-1 to S-5. Dewan K.S. Puri, handwriting expert examined in this case is well known both for his ability and integrity and in my view, opinion given by him has rightly been taken into consideration by the first Appellate Court.
13. In para 2 of the written statement dated 25.2.1989 filed in Court on 27.2.1989, defendants No. 5 and 6 stated that they are the only heirs in respect of property of Mohinder Singh in view of the Will left by him. Defendants No. 5 and 6 neither disclosed the date of the Will nor the Will or its copy was produced in court along with the written statement. The Will was produced in Court only in February, 1990. In the course of mutation proceedings as well, the Will was not produced and mutation was ordered to be entered on the basis of natural succession. There is no explanation by defendants No. 5 and 6 as to why the Will was not produced before the Revenue Authorities and why the date of Will was not mentioned in the written statement.
14. The Will is alleged to have been executed on 3.7.1988 and Mohinder Singh, testator expired on 21.7.1988. The Will has not been scribed in Village Panjola where Mohinder Singh used to reside but is alleged to have been executed in Village Shampur where the testator had gone to attend the Bhog ceremony. Defendants No. 5 and 6 have tried to explain that occasion for execution of Will arose all of a sudden at Village Shampur because at the Bhog ceremony, Mohinder Singh felt pain in his chest and so he decided to execute the Will. Gurdev Singh one of the attesting witnesses of the Will, when examined as DW-3, in his cross-examination no where stated that the deceased executed the Will because he felt pain in the chest. In fact, Gurdev Singh in his cross examination stated that the deceased executed Will on their advice only to secure the future of his wife and daughter. DW-4 Birinder Singh alleged scribe of the Will also did not state that the testator decided to execute the Will at Village Shampur because he felt pain in the chest. He, in fact, stated that the deceased was not taken to the doctor but was left at Village Panjola on the same very day. In the Will, it is not mentioned that the testator had gone to Village Shampur on bhog ceremony of brother's wife of Gurdev Singh. It is rather mentioned that the deceased had gone to village shampur on account of some personal work. Statements of DW-3 Gurdev Singh and DW-4 Birinder Singh are contradictory and discrepant. DW-3 stated that after the execution of the Will, the same was handed over to Sarpanch of Village Panjola whereas DW-4 Birinder Singh stated that the Will was handed over to the Lambardar. DW-3 denied the suggestion that Mohinder Singh was heart patient. He also stated that it was not got mentioned in the Will that he was a heart patient and had got fitted a pace maker. In the Will, it is, however, mentioned that the Will is being executed because the testator felt pain in the chest and apprehended that he could die at any time. Having regard to the presence of the suspicious circumstances as pointed out above, I am of the view that the first Appellate Court is justified in doubting the genuineness of the Will.
15. Mr. R.S. Mittal, Senior Advocate counsel for the appellants next contended that if the Will is held to be invalid, then also the plaintiff is not entitled to 1/7th share in the property because vide compromise dated 29.8.1988, the plaintiff and defendants No. 1 to 4 had agreed to take 30 Bighas of land out of 80 Bighas left by Mohinder Singh and the rest of the land i.e. 60 Bighas was to be inherited by defendants No. 5 and 6. It is contended that the finding of the first Appellate Court that the compromise, Ex.D-1 is a suspicious document, is not correct. I find no merit in this contention.
16. In order to prove compromise, Exh.D-1, defendants No. 5 and 6 examined DW-2 Hardev Singh son of Balwant Singh, DW-3 Gurdev Singh and DW-4 Birinder Singh son of Jaspal Singh. DW-2 Hardev Singh stated that the compromise was written at Village Panjola but compromise, Exh.D-1 shows that it was allegedly written at Village Shampur. He also showed his ignorance as to who had purchased the stamp papers on which compromise was typed. He stated that Pritam Singh Sarpanch was present but compromise does not bear signature of Pritam Singh Sarpanch. DW-3 Gurdev Singh is brother of DW-2 Hardev Singh and also happened to be one of the attesting witnesses of the Will. DW-3 though stated that the compromise was got effected in his presence but stated that it does not bear his signature. In his cross-examination, he stated that the compromise was scribed at Village Panjola and the same was got typed after securing the signatures meaning thereby that the signatures were obtained first and thereafter the same was got typed. DW-4 Birinder Singh stated that the compromise was scribed at Patiala and was effected at Village Panjola. He also stated that the draft as well as the original compromise deed were handed over to Gurpartap Singh who is his brother and is living at Village Shampur. Gurpartap Singh not only happened to be the attesting witnesses to the Will but also a witness to the compromise. He, however, was not examined.
17. Strangely, DW-4 Birinder Singh, scribe of the Will and Gurpartap Singh, one of the attesting witnesses of the Will, are also the attesting witnesses of the compromise and all the 4 attesting witnesses to the compromise do not belong to Village Panjola where the deceased used to reside. It has also not been explained as to why Sarpanch of Village Panjola was not asked to attest the compromise when according to DW-3 Gurdev Singh, the Will as well as the compromise were handed over to Sarpanch of Village Panjola. The compromise, Exh.D-1 also makes no mention to Will dated 3.7.1988 thought it is contended that the .compromise was arrived at between the parties because dispute arose because of the Will. In my view, the first Appellate Court on proper analysis of the statements of the attesting witnesses, has rightly discarded the compromise. Furthermore, a compromise is settlement of disputed claim and applies to claims and demands of all sorts. If the compromise deed itself declares a right to immovable property of more than Rs. 100/- in value, it operates as a contract and requires registration as provided under Section 17(1)(b) of the Registration Act. It is not in dispute that the compromise, Exh.D-1 purports to create a right in favour of defendants No. 5 and 6 to the property of more than Rs. 100/- and as a result of the compromise, Exh.D-1 the property which now stands equally in the name of seven persons, shall stand in different shares. Since a right has been created in favour of defendants No. 5 and 6 by the document itself, it required compulsory registration and in absence thereof it cannot be read into evidence and set up as a document of title.
18. Consequently, for the reasons recorded above, this appeal fails and shall stand dismissed with no order as to costs.