Punjab-Haryana High Court
State Of Haryana vs Raj Kaur on 19 January, 2001
Equivalent citations: AIR2001P&H322
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. Raj Kaur and Phulpati are daughters of Har Narain son of Dhani of village Lajwana Kalan, Tehsil and Distt. Jind. Har Narain son of Dhani had 176th share (in the agricultural land measuring 141 bighas 12 biswas Pukhta and in the land measuring 21 bighas 5 biswas Pukhta situated in the area of village Lajwana Kalan, Tehsil and Distt. Jind) as detailed in the heading of the plaint. Har Narain died in the year, 1967 leaving behind them as his sole heirs being his daughters. Anant Ram is the son of Fateh Singh son of Kanhaiga Lal son of Dhani. He is thus the real nephew of Har Narain. Har Narain did not execute any will in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh on 25.8.1966. Fateh Singh manipulated will dated 25.8.1966 alleged to have been executed by Har Narain in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh. The alleged will is fictitious and not genuine. It was obtained by Fateh Singh through fraud played upon Har Narain. At the time of execution of the said will Har Narain was not in disposing mind as he was ill. He was not ever told by Fateh Singh that will was being executed by him (Har Narain). Thumb impressions of Har Narain were obtained by fraud and mis-representation. Will was not executed by Har Narain of his free will and volition. There was no reason for Har Narain deceased to execute will in favour of Anant Ram and his brother Jai Bhagwan when he had daughters. There was no reason for Har Narain to deprive his daughters of his inheritance.
2. Vide order dated 15.7.1980, Prescribed Authority/SDO (Civil) Jind declared the said land in the hands of Anant Ram as surplus. Before declaring the said land surplus, Prescribed Authority/SDO (Civil) Jind never informed them about the surplus proceedings. Order declaring the said land surplus was passed in the absence of the interested parties. Fateh Singh father of Anant Ram kept the fact concealed for a considerable long period and never disclosed that such a will had been executed by Har Narain deceased in favour of Anant Ram and Jai Bhagwan. After the death of Har Narain, his daughters Raj Kaur and Phulpati have been in possession of the entire land left by Har Narain being lawful owners as heirs of Har Narain and Fateh Singh father of Anant Ram and Jai Bhagwan had been admitting them to be owners of the land and had been paying them rent as he was in possession of the land on behalf of the plaintiffs. It was only six months back when he came out that they are not owners but Anant Ram and Jai Bhagwan are owners by virtue of will executed by Har Narain and mutation had been sanctioned in favour of defendant No. 2 and Jai Bhagwan.
3. Raj Kaur and Phulpati were never informed about the sanctioning of mutation in favour of Anant Ram. Land was declared surplus in the hands of Anant Ram though he was not owner thereof. On these allegations, Raj Kaur and Phulpati, filed suit for declaration on 17.10.1978 against (1) the State of Haryana, and (2) Anant Ram son of Fateh Singh to the effect that they are owners in possession in equal shares of 1/6 share of (agricultural land measuring 141 bighas 12 biswas and 21 bighas and 5 biswas) as detailed in the heading of the plaint belonging to Har Narain being his daughters and that will dated 25.8.1996 in favour of Anant Ram and Jai Bhagwan was fictitious and was not binding on their rights and further defendant No. 1 State of Haryana be restrained from declaring the said land surplus in the hands of Anant Ram'-defendant No. 2 or including the said land in surplus pool and order dated 15.7.1980 of prescribed Authority/SDO Civil, Jind is null and void. Land was declared surplus on the basis of wrong entries in the revenue record showing Anant, Ram and Jai Bhagwan to be the owners. In nutshell, their suit was that this land could not be taken into account while determining the surplus area with Anant Ram as this land devolved upon them on the death of their father Har Narain who died intestate without leaving any will and the will dated 25.8.1 966 in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh was fictitious and not genuine.
4. Anant Ram did not turn up to contest the suit despite service. He was proceeded ex parte.
5. Defendant-State of Haryana contested the suit of the plaintiff urging that this suit is collusive between the plaintiffs and Anant Ram filed with a view to save surplus land with the family of Anant Ram. It was denied that plaintiffs are owners of the land. In fact. Anant Ram defendant was the owner of the land. On 25.8.1996, Mar Narain hud executed will in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh. On the basis of will mutation No. 1300 was attested on 27.8.1967 in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh. It was urged that Fateh Singh and his sons were serving Har Narain. Har Narain willed away this properly to Anant Ram and Jai Bhagwan who are his real nephews as he wanted this property to remain in his own family in the male line. Will dated 25.8.1996 was in the knowledge of the plaintiffs and they were satisfied with the decision of their father. According to the provisions of the Haryana Ceiling on Land Holdings Act, 1972, land owned by Fateh Singh and his family fell under celling. Suit was got instituted by Anant Ram so that this land was not declared surplus. Land in suit was in the cultivating possession of Anant Ram and Jai Bhagwan. It was never in the cultivating possession of the plaintiffs. There was no question of paying any rent by Fateh Singh to the plaintiffs. Plaintiffs had no grievance so far as the inheritance of Har Narain devolving upon Anant Ram and Jai Bhagwan through will was concerned. Since the holding of the family of Fateh Singh was exceeding the permissible limit, Fateh Singh got this suit filed from his nieces Raj Kaur and Phulpati.
6. On the pleadings of the parties, the following issues were framed by the learned trial Court:
1 - Whether the plaintiffs are the daughters of Har Narain ? OPP 2- Whether the will dated 25.8.1966 executed in favour of defendant No. 2 and Jai Bhagwan is null and void and fictitious as alleged in the plaint ? OPP.
3- Whether the plaintiffs are the owners in possession of the suit land.? OPP.
4- Whether the suit is barred by limitation ? OPD 5- Whether the suit is bad for want of notice U/S SO CPC ? OPD.
6- Whether the civil Court has got no jurisdiction to try the suit? OPD 7- Whether the plaint does not disclose any cause of action ? OPD 7-A- Whether the order dated 15.7.1980 of the Prescribed Authority/SDO Civil, Jind is null and void and is not binding on the rights of the plaintiffs as alleged ? OPD 7-B- Whether no appeal against order dated 15.7.1980 has been filed either by the plaintiffs or defendant No. 2, If so, to what effect ? OPD.
7-C- Whether the suit of the plaintiff does nut lie in the present form ? OPD.
8- Relief.
7. Vide order dated 28.2.1981 of Sub Judge 1st Class. Jind, the plaintiff's suit was dismissed in view of his finding that Har Narain had willed away his property in favour of his nephews Anant Ram and Jai Bhagwan vide registeied will dated 25.8. 1966 of his free will and volition. It was found that Anant Ram and Jai Bhagwan sons of Fateh Singh used to serve Har Narain and Har Narain executed will in their favour in lieu of the services being rendered by them to him. It was found that the plaintiffs' suit was barred by time. It was found that prescribed Authority/SDO (Civil) Jind had declared the land in the hands of Anant Ram as surplus justifiably and included it in the surplus pool.
8. Plaintiffs went in appeal, which was allowed by Additional District Judge. Jind vide order dated 24.5.1982. He found the suit to be within lime. He found that the State of Haryana had no locus standi to say that will dated 25.8.1966 said to have been executed by Har Narain in favour of Anant Ram and Jai Bhagwan was genuine when Anant Ram had not chosen to appear and contest the claim of Raj Kaur and Phulpati that this will was not genuine.
9. Not satisfied with the order of Additional District Judge, Jind dated 24.5.1982 setting aside the order of Sub Judge Tst Class, Jind dated 28.3.1981, State of Haryana has come up in this regular second appeal to this Court.
10. I have heard learned Additional Advocate General, for the State of Haryana and Sh. Rajesh Chaud-hary, learned counsel for respondents No. 1 and 2.
11. In this case the only question that is required to be determined is whether Har Narain had executed any will dated 25.8.1966 in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh of his free will and volition and further whether this will stood proved in accordance with the provisions of Section 63(c) of the Indian Succession Act read with Sections 67 and 68 of the Indian Evidence Act.
12. In Harbans Singh v. Hardayal Singh and others, 1996 PLJ 394 : 1996(3) RCR(Civil) 532 (P&H)(DB) it was held that for proper execution of will, it must be established that :
(a) - the testator must have a disposing mind free from all extraneous influences with sound mental mind;
(b) - the testator is presumed to be sane having a mental capacity to make a valid will until contrary is proved ;
(c)- the will should be executed in accordance with the provisions of Section 63 of the Act read with Sections 67 and 68 of the Evidence Act. In other words, the testator should have signed or affixed his mark to the Will in the presence of the two witnesses who are required to see the testator signing or affixing his mark on the Will and each of the witnesses should sign the Will in the presence of the testator;
(d)- the onus of proof of the Will is on the propounder or beneficiary of the Will;
(e) - the existence of suspicious circumstances makes the onus of proof very heavy and such circumstances are required to be removed by the pro-pounder before the document is accepted as a last will of the testator;
(f) - the mode of proving the Wilt does not ordinarily differ from that of proving any other document except the special circumstances as incorporated in Section 63 of the Act; and
(g) - in order to ascertain the free disposing mind free from extraneous considerations, the whole of the attending circumstances in a particular case are required to be taken note of.
13. In order to hold a document to be a Will it has to be proved that the same is in conformity with the provisions as regards the execution and attestation as provided under Section 63 of the Act and executed by a person competent to make it. The Will must relate to the property of the maker which he intends to dispose of and if no reference is made to the disposal of the property, the document cannot be termed to be a Will. As the will diverts the rule of natural succession, its execution is required to be satisfactorily proved in accordance with the provisions of law.
14. In H. Venkatachala Iyengar v. B.N. Thimma-jamma and others, AIR 1959 SC 443 it was held that the party propounding a Will is required to prove the document in accordance with the provisions of law as laid under Section 63(c) of the Indian Succession Act and Sections 67 and 68 of the Evidence Act. The pro-pounder or beneficiary of a Will is required to prove that the testator was of sound mind, not a minor, had affixed his signature in the presence of the requisite number of witnesses and had signed after having understood the nature and effect of the disposition in the Will. The witnesses should have also affixed their signatures in the presence of the testator. Courts are required to see that all legitimate suspicions are removed before the document is accepted as the last Will of the testator. The presence of the suspicious circumstances tends 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 will propounded may also disclose infirmities which if proved may render the document inadmissible in evidence.
15. In Shashi Kumar Banarjee and others v. Subodh Kumar Banerjee, AIR 1964 SC 529 the Hon'ble Supreme Court dealt with the question of mode of onus of proof of Will and laid down the following principles:
16. "The mode of proving a Will does not ordinarily differ from that of proving any other document except as the special requirement of attestation prescribed in the case of a Will by Section 63, Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there was suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will an genuine. Where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same. Even where there are no such pleas but the circumstances gave rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself lakes part in the execution of the will, which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances, the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations."
17. Bhagya Wati and others v. General Public and others, 1994 PLJ 275 : 1994(3) RCR(Civil) 495 (P&H)(DB) it was held that in order to hold a document to be a will it has to be proved that the same is in conformity with the provisions as regards the execution and attestation as provided under Section 63 of the Act and executed by a person competent to make it. The Will must relate to the property of the maker which he intends to dispose of and if no reference is made to the disposal of the property, the document cannot be termed to be a Will. The declaration intended to take effect after the death of the testator impliedly means that declaration should not be meant to lake effect immediately and if it does so then it is not a Will. A will can be executed in any form but to be effective it is required to be signed and attested by the witnesses as required under the Indian Succession Act. No specific form or language is required to be applied while executing the Will. As the Will diverts the rule of natural succession, its execution is required to be satisfactorily proved in accordance with the provisions of the law and keeping in view the judgments delivered by the Apex Court and various High Courts in the country.
18. Section 63 of the Indian Succession Act regulates the execution of the Will. It says that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator, or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. Such a will is required to be attested by two or more witnesses, each of whom is required to see the testator signing or affixing his mark to the Will or see some oilier person signing the will, in the presence and by direction of the testator or should have received a personal acknowledgement of his signature from the testator, or of the signature of such other person, and each of the witnesses should sign the Will in the presence of the testator. It is, however, not necessary that more than one witnesses be present at the same lime, and no particular form of attestation shall be necessary.
19. In Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and others, 1994 PLJ 64 : 1994(1) RCR (Civil) 677 (P&H)(DB), it was held that onus to prove execution of Will always lies in every case upon the person propounding Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. If disinterested and satisfactory evidence in this respect has been brought on the record, the finding in favour of the propounder would be justified. Another rule, however, is that if circumstances exist which excite suspicion of the Court and whatever their nature be, it is for those who propound the Will to remove such suspicion and prove the fact that the testator knew the contents of the Will. It is only where this is done that the onus shifts to those who oppose the Will to prove fraud or undue influence or whatever they rely upon to displace the case of the propounder.
20. It was held in Karri Nookaraju v. Putra Venkatarao and others, AIR 1974 AP 13 that a Will is a document which is required to be attested by atleast two witnesses. That is clear from clause (c) of Section 63 of the Indian Succession Act. Section 68 of the Evidence Act forbids the using of a document which is required by law to be attested as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive. What is required to be proved by calling at least one attesting witness is the execution of the document. By execution of a will is meant the whole process prescribed under Section 63 of the Indian Succession Act. Indeed its marginal note reads execution of unprivileged wills. Such execution include not only the signing or affixing the mark of the testator to the Will or by some body else in his presence and by his direction but also attestation by two Witnesses. Reading Section 63 it is quite plain that attention as postulated by clause (c) is a part of execution of a Will. Such attestation has to be by two or more witnesses. Each of them must have either seen the testator sign or affix his mark to the will or has seen some other person sign the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgement of his signature or mark or of the signature of such other person. It is also necessary that each of the witnesses shall sign me will in the presence of the testator. However, it is not incumbent that more than one witness be present at the same time. Nor is there any particular form of attestation prescribed."
21. There can thus be no manner of doubt that Will is required to be witnessed by at least two witnesses. This is requirement of clause (c) of Section 63 of the Indian Succession Act. For proving the execution of the will, atleast one attesting witness is required to be produced which is the requirement of Section 68 of the Indian Evidence Act.
22. In this case, original will has not been brought on record. Will purports to have been attested by one Risala son of Rai Singh, Lambardar, village Shadipur Julana and by one Sada Nand Sharma son of Chhaju Ram, Vice President Panchayat Samiti, Jind. Only Risala was produced, who stated that he is not aware whether Har Narain had executed any will. He never thumb marked any such will. His attention was drawn to will alleged to have been executed by Har Narain in favour of Anant Ram and Jai Bhagwan. His attention should have been drawn to such will by the State of Haryana so that it could be elicited from him whether he had attested any will executed by Har Narain.
23. From the statement of Risala Ram, it cannot be said that the will stood proved. In his cross examination, he stated that Har Narain had two brothers Kan-haiya and Lal Ji. Kanhaiya had one son. Lal Ji had no son. Fateh Singh had three sons. One is dead and other two are alive whose names he did not remember. Anant Ram and Jai Bhagwan are the real nephews of Har Narain. Har Narain had two daughters who are married since long. It was suggested to him that Har Narain had willed away his property in favour of the sons of Fateh Singh. To this suggestion he expressed ignorance. He had thumb marked one document which was will. In the next breath, he stated that he was not aware whether it was will or something else which he thumb marked.
24. Learned Additional Advocate General appearing for the appellant stated that inference should be drawn from the Statement of Risaia Ram that Har Narain had executed will in favour of Anant Ram and Jai Bhagwan from the fact that he (Har Narain) had no male issue and he had only daughters, who had been married long ago and Ananl Ram and Jai Bhagwan are the sons of his real brother Fateh Singh, Fateh Singh cultivating his land during his life time.
25. Suffice it to say, the proof of will cannot be a matter of inference. It lay upon the State of Haryana to prove that Har Narain had executed will in favour of Anant Ram and Jai Bhagwan so far as his property was concerned. Anant Ram did not come forward to contest the claim of Raj Kaur and Phulpati because if he had contested their claim to inheritance of Har Narain, the property might have gone to the surplus pool and did not remain in their family. What the State of Haryana should have done was to draw the attention of Risala Ram to the will alleged to have been executed by Har Narain lying pasted on the record of Sub Registrar and put to him that this will had been executed by Har Narain in sound disposing mind in favour of his real nephews Anant Ram and Jai Bhagwan to the exclusion of his daughters in lieu of services being rendered by them to him and he and Sada Nand figure on this will as attesting witnesses.
26. State of Haryana examined one Charan Dass, Registration Clerk of the office of Sub Registrar, Jind (DW-1) who brought bahi No. 3 vol. 3 to the Court and stated that will purporting to have been executed by Har Narain son of Dhani son of Maya Chand of village Lajwana Kalan was lying pasted there. Ex-D-1 is its certified copy, which is in accord with the original. In his cross-examination, he stated that the record, which he brought to the Court pertaining to the will was not bearing any body's signatures or thumb impressions.
27. Raj Kaur and Phulpati are the natural heirs of Har Narain. Will said to have been executed has excluded his daughters from inheriting him. It was, therefore, the duty of the propounder of the will, in this case, now the duty of the State of Haryana to prove that Har Narain was having disposing mind free from all extraneous influences and he was with sound disposing mind when he executed this will. It was the duly of the propounder of the will, in this case now the State of Haryana to prove that disposition made in the will was not improbable or unfair or unnatural. In this case by virtue of the alleged will, Har Narain is said to have excluded his own daughters from inheriting him and has preferred his nephews. It lay upon the propounder of the will now in this case the State of Haryana to prove that Har Narain was so favourably disposed towards his nephews that he made them the cynosure of his eyes to the exclusion of his daughters. In this case, proof of the will in essential particulars is lacking.
28. In this case, Sub Registrar, who registered this will could have been produced but was not produced. If he had been produced, his testimony coupled with the testimony of Risala D W might have led the Court to raise an inference that Har Narain had executed will dated 25.8.1966 in favour of his nephews to the exclusion of his daughters in sound disposing mind.
29. In this case, thus, will dated 25.8.1966 alleged to have been executed in favour of Anant Ram and Jai Bhagwan sons of Fateh Singh cannot be said to have been proved to the satisfaction of the conscience of the Court so, as to be able to exclude the natural heirs of Har Narain.
30. Plaintiff's suit was quite within time as Har Narain died in the year, 1967 while suit was filed in the year, 1978. For a suit based on inheritance, limitation is 12 years. In Mohinder Singh (dead) represented by His LRs. and another v. Kashmira Singh, AIR 1985 PLJ 82, it was held that there is no period of limitation prescribed so far as suit for possession on the basis of inheritance is concerned. Such a suit is governed by Article 65 of the Limitation Act. Article 65 of the Limitation Act lays down 12 years period of limitation for possession of immovable property or any interest therein based on title and time from which period begins to run is when the possession of the defendant becomes adverse to the plaintiff.
31. In this case plaintiffs could file suit for possession on the basis of inheritance to their father any time after the death of their father and that suit could be defeated by the defendants successfully if they had proved that their possession was adverse and their adverse possession had extinguished the title of the plaintiffs. In this case there could be no question of adverse possession when their possession was short of 12 years duration from the death of Har Narain.
For the reasons given above, this appeal fails and is dismissed. No order as to costs.
32. Appeal dismissed.