RSA No. 1187 of 1986 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) RSA No. 1187 of 1986 Naib Singh ...Appellant Versus Devinder Kaur @ Surjit Kaur and others ...Respondents (2) RSA No. 1311 of 1986 Jaswant Kaur ...Appellant Versus Naib Singh and others ...Respondents (3) RSA No. 1314 of 1986 Date of decision: August 1, 2011 Jaswant Kaur ...Appellant Versus Naib Singh and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. GS Punia, Advocate, for for the appellant in RSA No. 1187 of 1986 and for respondent No.1 in RSA No. 1311 and 1314 of 1986. Mr. Animesh Sharma, Advocate, for the appellants in RSA 1311 & 1314 of 1986 & for respondent No.4 in RSA No. 1187 of 1986. Mr. HR Bhardwaj, Advocate for respondent No.2 and 3 in RSA No. 1187, 1311 and 1314 of 1986. GURDEV SINGH, J. These appeals have been preferred against the judgment and RSA No. 1187 of 1986 2 decree dated 24.12.1985 passed by the Additional District Judge, Patiala, dismissing the suit of Naib Singh plaintiff/appellant and recording a finding that Harpreet Kaur and Charanjit Kaur—defendants, are entitled to the property of Sant Singh, being his illegitimate children. The suit was filed by Naib Singh, plaintiff, against Davinder Kaur @ Sarjit Kaur, Harpreet Singh, Charanjit Kaur, Sukhdev Singh, Jaswant Kaur and Gurnam Singh—defendants, for declaration to the effect that he is the only rightful owner in possession of the property in dispute consisting of agricultural land situated in village Makaronpur, Tehsil Sirhind, detailed in the heading of the plaint, and for permanent injunction restraining defendants No. 1 to 4A from transferring that land by way of sale, mortgage, gift, lease etc., in favour of defendant No.5 or any other person. He pleaded in his plaint that Sant Singh was the owner of the land in dispute, who died issueless and without leaving behind any near collaterals, who could have succeeded to him under the Hindu Succession Act. One Maya Kaur had been residing with him, though she was never his legally wedded wife. Due to his own old age and frequent illness of Maya Kaur, Sant Singh could not manage cultivation of the land and also could not manage household affairs. He being the grand son of father's sister of Sant Singh was brought by him, alongwith his mother, for managing the land and household affairs. He, alongwith his mother and wife, rendered services to Sant Singh and even his children were brought up in this village Makaronpur. On account of the services rendered by him and out of natural love and affection, Sant Singh, with the consent of Maya Kaur and while in sound disposing mind, executed Will dated 9.2.1974, thereby bequeathing all his immovable and movable properties, including ornaments, bank RSA No. 1187 of 1986 3 deposits, machinery etc., in his favour. After the death of Sant Singh, he is coming in possession of the suit land as owner thereof. Maya Devi had pre- deceased Sant Singh. On the basis of the Will, he is only his legal heir. Davinder Kaur @ Sarjit Kaur-defendant No.1 is of Nepali origin and is legally wedded wife of one Davinder Singh son of Sucha Singh, resident of Nadyal. She was never divorced by Davinder Singh and that marriage is still subsisting. That Davinder Singh was in active service of military and in his absence defendant No.1 had been in the company of various bad characters and she got conceived from those undesirable persons and gave birth to a son and daughter, who have been impleaded as defendants No. 2 and 3. They were cleverly shown to be the children from the loins of Sant Singh. Defendant No.1 is wrongly claiming herself to be the widow of Sant Singh and by making that representation gave an application to the revenue authorities for sanctioning mutation of the estate of Sant Singh in her favour. All these three defendants filed suit for declaration and possession in forma pauperis in the Court of Sub Judge Ist Class, Bassi Pathana on 22.2.1979, but the same was dismissed on 8.11.1979. Defendant No.1 even initiated the proceedings under Section 145 of Cr.P.C. against him regarding the possession of the land in dispute but those proceedings were dismissed on 19.9.1979 and he was held to be in legal possession of the land in dispute. The mutation was wrongly sanctioned in favour of defendants No.1 to 3 and the appeal has already been filed against that mutation order, which is pending before the Court of Collector. Subsequently, the mutation was sanctioned in favour of Jaswant Kaur-defendant No.4 on 25.11.1981 by the Assistant Collector Ist Grade, which is against the facts and law and as such is illegal. These mutations do not confer any right upon defendants RSA No. 1187 of 1986 4 No. 1 to 4A. However, by taking advantage of the mutation in favour of defendants No. 1 to 3, they want to dispose of the land in favour of defendant No.5, through defendant No.4 as general attorney. Therefore, he filed the suit for declaration and perpetual injunction. The suit was contested by defendants No. 1 to 3 and 4A who filed separate written statements. Defendants No. 1 to 3 in their written statement admitted that Sant Singh was the owner of the land in dispute and that mutation regarding this land has already been sanctioned in their favour. They denied the other contentions of the plaintiff and, inter-alia, pleaded that Sant Singh was a healthy person and could manage the land himself. Defendant No.1 is widow and defendants No. 2 and 3 are the son and daughter, respectively, of Sant Singh and they inherited the land in dispute after his death, being natural heirs. Defendant No.1 has no relation with Davinder Singh son of Sucha Singh and gave birth to defendants No. 2 and 3 from the loins of Sant Singh. The plaintiff is not related to Sant Singh and he was never brought by him to his village nor any such services were rendered by him or his wife. The plaintiff has no locus standi to file the suit and the same is not maintainable. They have no intention to alienate the suit land and in case of necessity, they would sell it for the benefit of the family. Defendant No. 4A in her written statement admitted that Sant Singh died issueless and that Maya Devi had pre-deceased him. She denied the other contentions made in the plaint and pleaded that she is the daughter of Amar Kaur wife of Kartar Singh, who was the real sister of Sant Singh. She is the only legal heir and, as such, succeeded to the land in dispute after death of Sant Singh. She used to serve him in his old age and even all the ceremonies after his death were performed by her. The plaintiff never RSA No. 1187 of 1986 5 served Sant Singh, nor any such Will was executed in his favour. The same is forged and false document. In the replications to the written statements of these defendants, the plaintiff denied the contentions raised therein and reiterated his averments made in the plaint. On the pleading of the parties, the following issues were framed by the trial court:- 1. Whether the plaintiff is the owner in possession of the suit property ? OPP 2. Whether Sant Singh executed valid Will in favour of the plaintiff on 9.2.1974 ? OPP 3. Whether defendants No. 1 to 3 are estopped from challenging the ownership and possession of the plaintiff on the basis of the alleged Will dated 9.2.1974 ? OPD 4. Whether Davinder Kaur is the widow of Sant Singh deceased, if so to its effect ? OPD 5. If issue No.4 is proved whether Harpreet Singh and Charanjit Kaur are the son and daughter respectively of Sant Singh deceased from Davinder Kaur ? OPD No.1. 6. Whether Jaswant Kaur defendant No.4-A is the legal heir of Sant Singh deceased and is in possession of the suit property as alleged in the written statement ? OPD No. 4- A. 7. Whether the plaintiff is entitled to the declaration and injunction prayed for ? OPP 8. Relief. RSA No. 1187 of 1986 6 To succeed in the suit, the plaintiff examined Shanti Parkash (PW-1), Shri Piara Lal (PW-2), Shri Norata Singh (PW-3), Shri Tara Singh (PW-3A), Shri Jit Singh (PW-5), Shri Gurbachan Singh (PW-6), Smt. Shankri (PW-7) and examined himself as PW-4. On the other hand, defendants No. 1 to 3 examined Davinder Kaur @ Sarjit Kaur-defendant No.1 as DW.1/1 to 3, Gurdev Singh (DW.2/1 to 3), Jagdev Singh (DW.3/1 to 3), Jito (DW.3A/1 to 3), Gurmukh Singh (DW.4/1 to 3), Sarwan Singh (DW.5/1 to 3), whereas, defendant No.4-A herself examined as DW.4A/1 and also examined Kahan Singh (DW.4A/2), Balwinder Singh (DW.4A/3), Gurdit Singh (DW.4A/4), Shri Jaspal Singh (DW.4A/5), Shri Davinder Singh (DW.4A/6), Shri Dial Singh (DW.4A/7), Shri Mohan Lal (DW.4A/8), Shri Balbir Singh (DW.4A/9), Shri Gurdev Singh (DW.4A/10), Shri Nachhattar Singh (DW.4A/11) and Shri Mokha Singh (DW.4A/12). After going through that evidence and hearing learned counsel for the parties, the learned trial court decided all the issues, except issue No. 3, in favour of the plaintiffs. In view of the findings on those issues, the suit of the plaintiff was decreed. Against that judgment and decree, defendants No. 2, 3 and 4 A preferred appeals, which were decided, vide common judgment and the suit of the plaintiff was dismissed and decree dated 24.12.1985 was passed in favour of defendants No. 2 and 3. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for Mr. Naib Singh-plaintiff that the first appellate court erred while reversing the well reasoned finding of the trial court on issue No.2. The circumstances enumerated as suspicious circumstances by that Court cannot be held to be such circumstances so as to doubt the genuineness of the Will. Maya Devi RSA No. 1187 of 1986 7 was not the wife of Sant Singh deceased and, as such, mere non making of any provision for her maintenance in the Will cannot be said to be suspicious circumstance. The execution of the Will at the house of the deceased/testator himself instead of getting the same executed in the tehsil complex cannot be held to be a suspicious circumstance. It was the sweet will of the testator to choose the place for execution of the Will. The reason for non-presentation of the Will before the revenue authorities immediately after the death of the testator was that the same was lost and immediately it was produced before those authorities, after it was found. Convincing and reliable evidence was produced for proving the loss and finding of that Will. The finding of the first appellate court that the plaintiff was not residing with the deceased and was not offering services to him is based upon the misreading of the evidence. In this situation, one of the substantial questions of law arising in the present appeal is, “whether the Will could have been discarded on the ground that the same was surrounded by suspicious circumstances ?” He further submitted that the evidence produced by Davinder Kaur @ Sarjit Singh-defendant No.1 for proving the fact that her marriage was performed with the deceased does not inspire confidence and is full of embellishments. The first appellate Court was required to record a finding that the said defendant was legally married to the deceased before recording a finding that defendants No. 2 and 3 were born to her from the loins of the deceased and were to succeed to his estate being his illegitimate children. She could not have performed a valid marriage during the life time of her first husband; namely, Devinder Singh. He also submitted that if the Will is ignored, even then the plaintiff is to succeed to the estate of the deceased, being his cognate; as unimpeachable evidence has been produced RSA No. 1187 of 1986 8 for proving that he is directly related to the deceased, though not wholly through males. If this Court comes to the conclusion that Jaswant Kaur- defendant No.4A is also one of the cognates, then the plaintiff is to succeed to ½ share in the suit land, as both of them are related to the deceased through the same degree. On behalf of Jaswant Kaur—appellant/defendant No. 4A, it has been submitted by Shri Animesh Sharma, Advocate, that from the evidence produced by that defendant, it stands proved that she is related to the deceased through common ancestor and is one of the cognate. She is related to the deceased through same degree like Naib Singh plaintiff and, as such, she is to succeed ½ share of the suit land. He also tried to contend that in view of the suspicious circumstances, enumerated by the first appellate court, the Will propounded by the plaintiff is to be discarded and cannot be held to be a genuine one. He adopted the arguments advanced by the learned counsel for the plaintiff so far as the claim of defendants No. 2 and 3 are concerned and according to him also, those defendants have not been able to prove by producing cogent and convincing evidence that they are the illegitimate children of the deceased. There is no credible evidence for proving that they were born to defendant No.1 from the loins of testator- Sant Singh. Learned counsel for the defendants No. 2 and 3 submitted that the evidence produced by the plaintiff that he was serving the deceased during his life time is not worthy of credence. Only oral evidence has been produced to that effect and that fact could have been substantiated by means of documentary evidence. The plaintiff was never recorded as a voter in the village of the deceased and he continued to be recorded as voter in his RSA No. 1187 of 1986 9 original village Gazipur. No ration card was prepared by him at the address of the deceased and he failed to produce any evidence in the form of record of the school for proving that his children were admitted in the school in the village of the deceased. In fact, after the death of Maya Devi, the deceased performed second marriage with defendant No.1 and was being looked after by her. From the evidence produced on the record, which consists of oral as well as documentary evidence, it stands proved that defendants No. 2 and 3 were born to defendant No.1 from the loins of the deceased. It was correctly concluded by the first appellate court that they being the son and daughter of the deceased were to succeed to his estate. The fact that defendant No.1 has been residing with the deceased as his wife stands proved from the voter list proved on the record as Ex. DW1/3/4A. Therefore, there is no ground for upsetting the well reasoned findings recorded by the first appellate court. In view of the submissions made by both the sides and the grounds of appeal, the following substantial questions of law arise in the present appeal:- (i) Whether the Will dated 9.2.1974 is surrounded by the suspicious circumstances, as enumerated by the first appellate court, which were never dispelled by the plaintiff and are sufficient for discarding the Will ? (ii) Whether Naib Singh-plaintiff and Jaswant Kaur, defendant No.4A are the cognates of Sant Singh deceased and through which degree they are related to him ? (iii) Whether marriage of Davinder Kaur-defendant No.1, was solemnized with Sant Singh? RSA No. 1187 of 1986 10 (iv) Whether defendants No. 2 and 3 were born to defendant No.1 from the loins of Sant Singh and, as such, were to succeed to his estate ? Question No.1 For proving the execution of the Will, the plaintiff examined three of the attesting witnesses thereof; namely, Piara Lal (PW-2), Norata Singh (PW-3) and Tara Singh (PW-3A). All of them in one voice have deposed that the Will was executed by Sant Singh in their presence, which was scribed by Arjan Singh, deed writer, who read out the contents thereof to him and after admitting those contents to be correct, he put his signatures thereon in their presence and then they put their attestation in his presence. The statements of these witnesses fulfill the test as laid down in Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 for proving the Will. No doubt, the Will is to be proved like any other document but an additional duty is cast upon the propounder of the Will. He is to dispel all the suspicious circumstances surrounding the Will. When the Will is surrounded by suspicious circumstances, the same ceases to be a simple lis between the parties. In case the propounder fails to dispel those circumstances, then the Will cannot be held to be a genuine document. It was held by the Hon'ble Supreme Court in the case of K.Laxmanan Versus Thekkayil Padamini and others 2009 (1) Supreme Court Cases, 354 that the propounder of the Will is to prove legality of execution and genuineness of the Will by explaining the absence of suspicious circumstances. Even when there are no such pleas but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. The first appellate court took into consideration a number of RSA No. 1187 of 1986 11 suspicious circumstances before discarding the Will. The first suspicious circumstances is that no provision was made for maintenance of Maya Devi and she was totally divested of the movable and immovable properties of the deceased. The plaintiff tried to assert that Maya Devi was not the legally wedded wife of the deceased and was just living with him. However, it has come on the record that she cohabited with him for a long period of 30 years. In those circumstances, presumption of marriage can easily be drawn. Moreover, admissions have been made by the witnesses of the plaintiff himself; namely, Piara Lal (PW-2) Norata Singh (PW-3) and Tara Singh (PW3-/A) that Maya Devi was the wife of the deceased. It is an admitted fact that she was alive on the date, the alleged Will was executed. Once it is proved on the record that she was the wife of the deceased and at that time the deceased was not having an issue, the divesting her from the estate of the deceased, becomes a suspicious circumstance. No doubt, the Will is meant for divesting the natural heirs but the Court is to see if the person, in whose favour the Will was executed by divesting the natural heirs, was so close to the testator and was under such an obligation that he thought it prudent to disinherit his own wife, who cohabited with him for thirty years, without even making a provision for her maintenance. The plaintiff tried to produce the evidence to the effect that he, alongwith his mother wife and children, shifted to the house of the deceased about 10/11 years before his death and had been looking after him and managing his land. He has also produced evidence to the effect that he was related to the deceased as his nephew. There is nothing on the record to disbelieve the evidence produced by him that he was related to the deceased as his nephew. However, no reliance can be placed on the evidence RSA No. 1187 of 1986 12 produced by him to the effect that he had shifted to the house of the deceased about 10/11 years before his death and had been looking after him. It has come during the evidence that the deceased was maintaining a motor car and had employed a driver also. He was not only the Numberdar of the village but also the Cashier of the Co-operative Society of the village. In these circumstances, it cannot be said that he was not in a position to look after himself and was to depend upon someone. The plaintiff admitted during his cross-examination that he is recorded as voter in his original village Gazipur and that he applied for the ration card in the village Makaronpur, only two years back. His statement was recorded in the year 1982 and thus, he applied for the ration card after two years of the death of the deceased. Had he been living with the deceased, he must have been recorded as a member of his family in his ration card. According to the plaintiff, he got his children admitted in the school in Makaronpur, but failed to prove any documentary evidence in support thereof. After the careful perusal of the evidence on record, this Court has come to the conclusion that the plaintiff was not living with the deceased during his life time and was not looking after him. Thus, there was no opportunity with the deceased to prefer him over his wife Maya Devi, who was alive living with him at the time of execution of the alleged Will. The next suspicious circumstance is non-scribing of the Will from a regular deed writer and the attesting witnesses of the Will from a different village. That can be said to be a weak suspicious circumstance. There is no rule of law that the Will must be got scribed from a regular deed writer. However, no explanation has come forth as to why the deceased chose to get the Will attested from the persons from outside his village. The RSA No. 1187 of 1986 13 above said attesting witnesses have made parrot like statements and they appear to be tutored witnesses. All of them in one voice stated that they had come to the village of the deceased to attend a function in the house of Amar Singh Numberdar and that they were asked by Sant Singh to come to his house after attending the function and that very message was also conveyed to them by the plaintiff and that Arjan Singh was already present with the deceased when they went to his house. Such like perfect statements can be made only by the tutored witnesses. The non-attesting of the Will by someone from the village of the deceased is also a suspicious circumstance. According to all these witnesses, the Will was scribed with the help of the pen and the ink which were lying in the house of the deceased and that he had put his signatures with the same pen. It was rightly observed by the first appellate court that the signatures of the deceased on the Will and writing thereof appear to be with the help of different pens. Another suspicious circumstance is the non-disclosure and non production of the Will before the revenue authorities immediately after the death of the deceased. This conduct of the plaintiff itself is a suspicious circumstance. The plaintiff tried to prove on the record that the Will was lost on 19.4.1979 and was found by one Shankari (PW-7), who delivered the same to him through the Sarpanch of the village. According to the plaintiff, he lodged a report regarding loss of the Will with the police, the very next day on which it was lost and thereafter, when the same was handed over to him, he lodged the second report. Copies of these reports were proved on record as Exs. P.1 and P.2 by Mahal Singh Constable (PW-1). Shankari was examined as PW-7. This evidence produced by the plaintiff appears to be a devise, for explaining the reason for not producing the Will before the RSA No. 1187 of 1986 14 revenue authorities on earlier date. As per the contents of the report Ex. P.1, the Will was lost from a bag which the plaintiff was carrying, which is highly improbable. The story of the finding of the Will by Shankari is also full of doubt. Even