High Court of Punjab and Haryana, Chandigarh
Case Law Search
Dulla Singh & Anr v. Paramjit Kaur & Anr - RSA-455-1982  RD-P&H 2004 (27 March 2006)
RSA No.455 of 1982
Date of Decision: 22.2.2006
Dulla Singh and another
Paramjit Kaur and another
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Shri V.K.Jain, Senior Advocate with Ms.Divya Sharma, Advocate for the appellants Shri Akshay Bhan, Advocate for the respondents JUDGMENT
Appellants, by filing this Regular Second Appeal, have laid challenge to the judgment and decree dated 5.12.1981, vide which the appellate Court below has reversed the judgment and decree dated 18.4.1979 passed by the trial Court in their favour.
Dispute herein pertains to the estate left by Matu @ Mat Ram, deceased, who died on 15.8.1972. Appellants are claiming his inheritance on the basis of a Will dated 11.8.1972, which was registered on 21.9.1972.
It is necessary to mention here that the appellants are sister's son of the deceased. The respondents are grand daughters of the deceased and are claiming property, left by him, on the basis of natural succession. After death of Matu, the revenue authorities, did not accept the validity of the Will and accordingly, the mutation, on the basis of natural succession was RSA No.455 of 1982 - 2 -
entered in the name of respondent No.1 on 30.1.1974. The appellants then filed suit in August, 1976, claiming declaration to the effect that they were the owners in possession of 14 acres (112 kanals) of land out of land measuring 142 kanals 7 marlas, further detail of which was given in their plaint, on the basis of Will dated 11.8.1972 (registered on 21.9.1972), executed by deceased Matu. They further prayed that mutation bearing No.5480 dated 30.1.1974, in favour of the respondents be set aside. Their suit was decreed. However, respondents succeeded in their appeal. Hence, this Regular Second Appeal.
As per the plaint, it was case of the appellants that they, being sister's son of the deceased Matu, used to serve him and in lieu of their services, the deceased executed Will dated 11.8.1972, bequeathing 14 acres of land in their favour and remaining 4 acres of land were left for grand daughters of the deceased/ respondents. It was their case that the revenue authorities have wrongly sanctioned the mutation, on the basis of inheritance, in favour of the respondents. In their written statement, apart from taking many preliminary objections, on merits, respondents have stated that deceased Matu did not execute any Will, as alleged by the appellants. It was claimed by them that the deceased was not of sound disposing mind and as such, was not in a position to execute the Will. It was further averred by them that the Will propounded by the appellants, was a forged and fictitious document. They claimed property left by the deceased Matu, being his grand daughters. It was further stated by them that mutation has rightly been sanctioned by the revenue authorities in their favour.
On pleadings of the parties, following issues were framed by the trial Court:-
RSA No.455 of 1982 - 3 -
"1. Whether Matu deceased executed a valid Will in favour of the plaintiffs? OPP
2. Whether this suit for declaration simpliciter is maintainable? OPP
3. Whether the plaintiffs have no locus-standi to file this suit? OPD
3(a) Whether the suit is not within time? OPD 3(b) Whether the suit is not properly valued for the purposes of court-fee and jurisdiction? OPD.
4. Relief." After contest, suit was decreed and the trial Court decided issue Nos.1 and 2 in favour of the appellants. Issue No.3(a) and 3(b) were decided against the respondents and accordingly, suit was decreed and declaration, as claimed by the appellants, was granted in their favour.
Respondents went in appeal which was allowed. It was held by the appellate Court below that the Will propounded by the appellants, was surrounded by suspicious circumstances, as such, the trial Court was not justified in granting them relief, on basis of the same. While reversing judgment of the trial Court, it was noticed by the appellate Court below that as per evidence on record, before his death, Matu was bed ridden, so, it cannot be presumed that he was having sound disposing mind. Further, the appellate Court below has taken it as a suspicious circumstance that as to why at the time of execution of the Will Sub-registrar, from Budhlada, who is posted in a nearby town, was not summoned or why?, the Will was not got registered immediately after its execution. The appellate Court below also did not rely upon the testimony of attesting witnesses, being discrepant in nature. It has further been opined that as the beneficiaries had taken RSA No.455 of 1982 - 4 -
active part in execution of the Will, the same cannot be relied upon. It has also been held that the appellants have failed to bring on record any evidence, in the shape of medical certificate etc., to show that the executant of the Will was of sound disposing mind before his death. Exclusion of the respondents, to inherit large chunk of the property of the deceased, in the Will, was also taken as a suspicious circumstance.
At the time of arguments, Shri V.K.Jain, Senior Advocate assisted by Ms.Divya Sharma, Advocate has framed the following questions of law, for consideration of this Court:- "1. Whether examination of all the attesting witnesses, to the will, was necessary?
2. Whether disinheritance of natural heirs itself is a suspicious circumstance?
3. What is the effect of non cross examination of a witness, on a particular point?
4. Whether a person is presumed to be of sound & disposing mind, in the absence of evidence contrary to it?
5. Whether in the facts & circumstance of the present case the will was surrounded by suspicious circumstances and was not valid?"
Shri Jain has argued that the appellate Court below has failed to appreciate evidence on record in a proper manner. It has not been noticed that no question was put to any of the witnesses, during their cross- examination, by the respondents that the Will, in dispute, was a result of any impersonation/ fraud. In this manner, execution of Will, has virtually been admitted, except that the suggestions were made to the witnesses only to the extent that the deceased was not in a sound disposing mind, when alleged RSA No.455 of 1982 - 5 -
Will was executed by him. Shri Jain has further argued that except bald statement of Shangara Singh (DW1) to say that the deceased was not of sound disposing mind, no other evidence has been brought on record to prove the same. The appellate Court below, by raising certain presumptions, which are not otherwise coming out of the record, has reversed the well reasoned judgment of the trial Court. By referring to statements of PWs, it was argued that the appellants had been serving the deceased and the last rites of the deceased were also performed by them. To the contrary, it was case of the respondents that it was one Dalip, who was serving the deceased and he had performed the last rites. To that extent, no proof has been brought on record. Even said Dalip has not been examined as a witness. The respondents were of a very tender age, at the time, when death of Matu had occurred, as such, it cannot be presumed that they had been serving the deceased. It has further been argued that in view of facts of this case, exclusion of respondents, from large portion of property of the deceased, cannot be termed as a suspicious circumstance. He further argued that unless contrary is proved, it shall be presumed that the person, who has executed a Will, was of sound disposing mind. Shri Jain has prayed that as the Will was proved on record and was not surrounded by any suspicious circumstance, judgment and decree, under challenge, be set aside and that of the trial Court be restored.
Shri Akshay Bhan, Advocate for the respondents has vehemently controverted the arguments raised by Shri Jain. He has made an attempt to show that the respondents and their father Shangara Singh were actually serving the deceased. Their relations with the deceased were not strained, as such, there was no occasion for him to exclude them from inheriting his property. Counsel, by referring to evidence, brought on RSA No.455 of 1982 - 6 -
record by the respondents, has further argued that the deceased was not in sound disposing mind, as at the time of execution of Will, he was bed ridden and was not in a position to speak and was also hard of hearing. The very fact that the Sub-registrar was not summoned at the time of execution of Will, which immediately after its execution, was also not got registered, clearly indicates that it was done to conceal incapacity of the testator, to execute the same. Counsel has also referred to many discrepancies in the statements of the attesting witnesses, to say that execution of the Will, was not proved on record. Counsel further said that it was not proved on record that the appellants had been serving the deceased and furthermore as the beneficiaries had taken active part in execution of the Will, the same was rightly ignored by the appellate Court below. He prayed that appeal, having no substance, be dismissed.
After hearing counsel for the parties, this Court feels that in view of facts of this case, appeal deserves to succeed.
Record reveals that to prove the Will, in dispute, one of the appellants, namely Dulla Singh appeared as a witness (PW1). He has stated that the deceased was his uncle, he and other appellant Chhota Singh were serving him and out of love and affection, he had executed Will in their favour. He further stated that he was of sound disposing mind till the time of his death. Similarly, PW2 Harcharan Singh, Advocate, who has scribed the Will, has categorically stated that he had written the Will at the asking of the deceased on 11.8.1972. It was read over and accepted to be correct by the deceased, who had put up his thumb impression on the same, of his own free will. This witness has further stated that when Will was executed, Chand Singh (PW3), Bhagwan Singh (PW4), Kirpal Singh and Gurdial Kaur were also present. The Will was executed in house of the deceased.
RSA No.455 of 1982 - 7 -
Testimony of PW1 and PW2 has been supported by PW3 Chanda Singh, who had attested the Will. This witness has stated that the deceased had shown his desire to execute the Will and asked him to bring a scribe.
Thereafter, he contacted Kirpal Singh and through him brought Shri Harcharan Singh, Advocate, who scribed the Will. Bhagwan Singh had also attested the Will. In his deposition, he has made an attempt, to some extent, to help the respondents, by stating that Will was scribed before he reached house of the deceased.
After looking into statements made by PW1 to PW3 and also PW4, this Court is of the opinion that the execution of the Will is proved on record. Lengthy cross-examination has failed to shatter deposition of the witnesses, named above. To none of the witnesses, even a question was put that the deceased had not thumb marked the Will or it was a case or impersonation. Tone and tenor of cross-examination of the witnesses clearly indicates that attempt was made only to suggest that the deceased, at the time of execution of the Will, was not of sound disposing mind. Except statement of DW1 Shangara Singh, there existed no other evidence on record, to negative the evidence brought on record by the appellants. PW1 to PW3 have categorically stated that the Will was executed at the asking of the deceased and he was of sound disposing mind. PW1 Dulla Singh, in his statement, has very truthfully said that the deceased, on account of his old age, used to urinate and was attending the call of nature, in his house only.
This frank deposition cannot be taken against the appellants, to say that they have virtually admitted that the deceased was ill and was not of sound mind at the time of execution of the Will. To that extent, finding given by the appellate Court cannot be sustained, especially, when no evidence, to the RSA No.455 of 1982 - 8 -
contrary, in the shape of any medical record, has been brought on record by the respondents.
A Single Bench of this Court in Sundhri (dead) through LRs v.
Lala Ram (dead) through LRs, (2005-2) The Punjab Law Reporter 493, while dealing with a similar situation and after discussing many judgments on the subject, has observed thus:-
"Once a Will is proved, there is no further onus on the propounders to prove that the testator was in a sound disposing mind at the time of execution of the Will. However, when a Will is challenged on the ground of the testator's mental incapacity, the onus lies on the person so alleging. He is required to prove the same by leading evidence to that effect.
Thus, when a Will has to be rejected on the ground that the testator was not in a sound and disposing mind, a definite finding is required to be recorded to that effect. However, in the present case, the finding recorded is that the defendants (appellants herein) "have failed to prove that at the time of execution of the Will, he was of sound and disposing mind".
This finding is clearly not based upon a correct application of the legal principles governing the proof and acceptance of Will and is completely perverse."
Cross-examination of PW1 to PW4 also indicates that except general probe, no question was put to them, to the effect that the Will was not executed by the deceased or that it was a case of impersonation, as such, deposition made by those witnesses, to that extent, shall presumed to have been admitted by the respondents. As the respondents have failed to prove that the deceased was of unsound mind, this Court is of the opinion that RSA No.455 of 1982 - 9 -
execution of the Will stands proved on record. Discrepancies, in the deposition of attesting witnesses, regarding payment of fee to the scribe, at what time, he was contacted and who brought him, are of not very material and can be ignored.
The appellate Court below has also wrongly opined that the beneficiaries had taken active part in execution of the Will. To so say, there is no evidence on record, even, it was not case of the respondents before the trial Court. Shangara Singh, when appeared in the witness box, has not said a word in that regard. Under these circumstances, the appellate Court below was not justified to raise a presumption, against the appellants, in that regard.
Finding of the appellate Court below that as the Sub-registrar was not contacted before execution of the Will and the Will was not got registered immediately after its execution, it was a suspicious circumstance, is liable to be rejected. Will was executed at the instance of Matu. He may have felt satisfied simply by getting it scribed through an advocate, as to why he has failed to call the Registrar, only the deceased knows and for any in-action on his part, the appellants can not be penalized. Otherwise also, as per law, registratrion of the Will is not necessary. Further that Matu had died within five days of execution of the Will, it can't be treated as a suspicious circumstance, unless, the death is coupled with some other unnatural events, which is missing in the present case. It has not come on record that before his death, he was not of sound disposing mind.
Their Lordships of Hon'ble Supreme Court in Madhukar D.Shende v. Tarabai Aba Shedage, 2002(1) RCR (Civil) 724, while probing validity of Will, where testator had died only one day after execution of the same, have held that unless there is some evidence to show that the testator RSA No.455 of 1982 - 10 -
was physically or mentally incapacitated from executing the Will, it cannot be treated as a suspicious circumstance. In the present case, no evidence worth the name showing mental incapacity of the testator, to execute the Will, exists on record.
The appellate Court below was not justified to say that as Kirpal Singh and Gurdial Kaur, who had also signed the Will, were not produced in Court, it was a suspicious circumstance. As per Section 63 of the Indian Succession Act, 1925, it is requirement of the law that a Will shall be attested by two or more witnesses. However, as per provisions of Section 68 of the Indian Evidence Act, 1872, a document which requires attestation, can be proved by producing only one of the attesting witness.
Chand Singh (PW3) has whole-heartedly supported the case of the appellants. Merely because, Bhagwan Singh (PW4) has tried to support, to some extent, the respondents, it cannot be said that Will was not proved on record. Even if testimony of this witness is discarded in toto, the Will, in view of statements of PW2 and PW3, stood proved on record. PW4 Bhagwan Singh has only said that execution of Will had already been complete when he reached, house of the deceased, in view of facts noticed above, no benefit of later portion of his statement can be extended in favour of the respondents.
The appellate Court below has also gone wrong to say that the appellants were not serving the deceased. This inference was drawn by the Court below by picking up one line from the statement of PW1 Dulla Singh, wherein he has stated that the deceased had been cooking his food of his own. However, when statement of this witness is read in toto, it clearly establishes that the appellants alongwith their family members, had been looking after the deceased. As against this, as per statement of Shangara RSA No.455 of 1982 - 11 -
Singh (DW1), one Dalip had been cultivating the land, in dispute, was looking after the deceased and had also performed his last rites. To prove the said fact, neither said Dalip was brought in the witness box, nor any other evidence has been produced on record. Statement made by Shangara Singh further proved that the respondents, being children of tender age, were not looking after the deceased at the time of execution of the Will, in dispute.
The appellate Court below has also gone wrong to say that as the deceased had excluded, his natural heirs, with whom his relations were not strained, from major portion of his property, it was a suspicious circumstance. This Court is of the opinion that through Will, one can exclude natural heirs or anybody else from inheriting one's property, if this has been done by the deceased in this case, it cannot be treated as a suspicious circumstance. It has come on record that the respondents were between the age of 9 and 11 years when the Will, in dispute, was executed.
They cannot be presumed to be looking after the deceased. As against this, it was proved on record that the appellants/ their family members had been serving the deceased. Under these circumstances, the deceased may have bequeathed his entire property to the appellants, however, he, in a very intelligent manner, has earmarked 4 acres of land, also for the respondents.
Otherwise also, it is a tendency, in the farmers of this region, to keep the immoveable property/ land with male heirs of the family. The appellants are not strangers and they were closely related to the deceased being sons of his sister, under these circumstances, exclusion of natural heirs, alone, cannot be treated a suspicious circumstance, as has been held by the Hon'ble Supreme Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 Supreme Court 1684 that RSA No.455 of 1982 - 12 -
whole idea behind execution of the Will is to interfere with the normal line of succession. If the natural heirs are debarred, in some Will, disinheritance of the natural heirs cannot be treated as a suspicious circumstance.
In view of facts narrated above, reliance of counsel for the respondents, upon judgments of Hon'ble Supreme Court in H.Venkatachala Lyengar v. B.N.Thimmajamma and others, AIR 1959 Supreme Court 443 and Gurdial Kaur and others v. Kartar Kaur and others, AIR 1998 Supreme Court 2861, is of no help to the respondents. As has been mentioned in preceding paragraphs of this judgment, Will stands fully proved on record and conscience of this Court is satisfied that the deceased had executed the Will in favour of the appellants.
In view of discussions made above, this Court feels that all substantial questions of law, raised by counsel for the appellants, stood answered i.e. it is not necessary to examine all attesting witnesses of the Will except one, disinheritance of natural heir, in view of facts of this case, cannot be treated as a suspicious circumstance, further that if witnesses were not cross-examined on a particular point, the said fact shall be deemed to have been admitted by the opposite party and further that it is for the person, who opposes the Will, on account of unsoundness of mind of the testator, to prove the said fact. As the Will, in dispute, in this case, was not surrounded by suspicious circumstances, this Court upheld the same and accordingly, this appeal is allowed, judgment under challenge passed by the appellate Court below is set aside and that of the trial Court is restored.
February 22, 2006 ( Jasbir Singh )
Double Click on any word for its dictionary meaning or to get reference material on it.