R.S.A. No.2007 of 1982 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.2007 of 1982 Date of Decision: 4.11.08 Kartar Singh and another .....Appellants versus Dilber Singh (dead)through legal representatives. ....Respondent CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA Present : Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellants. Mr. R.C.Dogra, Advocate with Mr. N.C.Doabia, Advocate for the respondent. RAJIVE BHALLA, J The appellants impugn judgments and decrees dated 07.09.1979 and 05.08.1982, passed by the Sub Judge, IInd Class, Phillaur and the Additional District Judge, Jalandhar, partly decreeing the suit filed by the respondent and dismissing the appeal filed by the appellants respectively. The dispute, in the present case, pertains to inheritance to the estate left behind by one Milkhi @ Prem Singh, who died unmarried and issueless. Milkhi @ Prem Singh had a brother Bawa Singh and a sister Smt. Indi. Bawa Singh his brother pre deceased him leaving behind four sons Kartar Singh, Joginder Singh, Jita Singh (appellants)and Sadhu Singh. After the demise of Milkhi @ Prem Singh, a suit was filed by Smt. Indi claiming to have succeded to the estate of Milkhi@ Prem Singh as his sole and exclusive heir, being his sister. The appellants/defendants namely Kartar Singh, Joginder Singh, Jita Singh filed a written statement denying that she was the sister of Milkhi @ Prem Singh. In addition, they R.S.A. No.2007 of 1982 -2- pleaded that during his life time Milkhi @ Prem Singh executed two Wills dated 11.04.1961 and 28.10.1973 bequeathing his entire property to them. On the basis of the pleadings, the learned trial court framed the following issues:- 1. Whether the plaintiff Indi deceased is the sister of deceased Milkhi?OPP 2. Whether deceased plaintiff Indi is the only heir of deceased Milkhi?OPP 3. Whether deceased Milkhi executed a valid Will dated 11.04.1961 and 28.10.73 in favour of defendants. 4. Relief. The learned trial Court vide judgment and decree dated 07.09.1979 held that Smt. Indi was the real sister of Milkhi @ Prem Singh and though it upheld the legality of the registered Will dated 11.04.1961, Ex. D1 it rejected the Will dated 28.10.1973, Ex.D2 by holding that the appellants had failed to prove its execution or dispel the suspicious circumstances surrounding its execution. The suit was, therefore, partly decreed. Aggrieved by the aforementioned judgment, the appellants filed an appeal. The Additional District Judge, Jalandhar, vide judgment and decree dated 05.08.1982 dismissed the appeal, affirmed the status of Smt. Indi as the sister of Milkhi @ Prem Singh, upheld the execution of the Will Ex.D1 dated 11.04.1961 and affirmed the finding of the trial Court, rejecting the Will Ex.D2 dated 28.10.1973. Counsel for the appellants submits that the appellants have proved the execution of the Will, Ex. D2, by the testator as they have examined Amar Singh, an attesting witness and Hans Raj the scribe. The thumb impressions of Milkhi @ Prem Singh appearing on the Will, Ex.D2 have been proved by the finger print expert produced by the appellants. R.S.A. No.2007 of 1982 -3- The learned courts below discarded the Will Ex.D2 on imaginary, insignificant and irrelevant considerations, namely, that the Will is unregistered, no reason has been assigned for disinheriting Smt. Indi, material contradiction exists between the statements of the attesting witness and the scribe, the attesting witness committed an error in identifying the other attesting witness and the entries in the register produced by the scribe are sparse. It is submitted that a Will does not require compulsory registration and the exclusion of a natural heir is a natural consequence of a Will. The alleged discrepancy between the depositions of Hans Raj the scribe and Amar Singh the attesting witness is a mere lapse of memory. The scribe and the attesting witness have deposed in unison as to the execution of the will by Milkhi @ Prem Singh and its attestation by the attesting witnesses and, therefore, the courts below were not justified in rejecting the Will. The inference drawn by the courts below from the sparse entries in scribe's register is unwarranted as he has deposed that he did not have much work. It is also contended that Amar Singh the attesting witness made a bona fide error while identifying the other attesting witness. It is argued that as the courts below have upheld the execution of the Will, Ex.D1, they have in essence accepted, the appellant's claim that Milkhi @ Prem Singh was residing with them and was being looked after by them. It was therefore natural for Milkhi to execute the second will in their favour. Counsel for the respondent, on the other hand submits that the concurrent findings of fact recorded by the courts below, discarding the Will Ex.D2, do not require interference. The learned courts below have assigned clear and cogent reasons for discarding the Will. The appellants have failed to prove the execution of the Will and have failed to dispel the suspicious circumstances shrouding its execution. It is submitted that the onus to dispel suspicious circumstances lay squarely upon the appellants. R.S.A. No.2007 of 1982 -4- As the appellants failed to discharge this onus , the learned courts below rightly rejected the Will Ex.D2 and proceeded to hold that the legal heir of Smt. Indi would be entitled to succeed to the land, subject matter of the Will Ex.D2. It is further submitted that the evidence adduced by the appellants to prove the execution of the will is riddled with contradictions and is replete with falsehood and was therefore rightly rejected by the Courts below. Counsel for the appellants, has framed the following questions of law:- 1. “Whether the judgments and decrees of the courts below can be sustained in law as they are perverse and are based upon a misreading of the oral and documentary evidence on record?” 2. “Whether the approach of the courts below in discarding the Will can be sustained in law, as the execution of the Will Ex. D2 has been duly proved by the appellants?” 3. “Whether the courts below have erred in law in reading the Will Ex.D2 in isolation of the attending circumstances and the primary Will Ex.D1 to ascertain the real intention of the testator?” 4. “Whether the approach of the courts below in discarding the will Ex. D2 on the basis of circumstances which were not suspicious in nature and ignoring the legal and convincing evidence led by the appellants, can be sustained in law?” I have heard counsel for the parties and perused the impugned judgments. A considered appraisal of the questions of law, the impugned judgments, the pleadings on record and the evidence adduced in support thereof, leads to a singular conclusion that the impugned judgments do not R.S.A. No.2007 of 1982 -5- suffer from any of the legal infirmities referred to in the questions of law and the Will Ex.D2 was rightly discarded by the courts below. The dispute in the present appeal relates to inheritance to the estate of Milkhi @ Prem Singh. His real sister Smt. Indi ( now represented by her legal representative) asserts her right to succeed to his estate as a natural heir. On the other hand, Milkhi's nephews rely upon two Wills Ex. D1 , dated 11.04.1961 and Ex.D2 dated 28.10.1973 to assert that the entire estate has devolved upon them by testamentary succession. As regards the Will Ex.D1, both the trial court and the first appellate court have held it to be genuine and valid. The respondents have not impugned these finding. The bone of contention, therefore, is the Will Ex. D2 dated 28.10.1973. Both the courts below are concurrent in their opinion that the Will Ex. D2 was not executed by Milkhi @ Prem Singh and that the appellants have not only failed to prove its execution but have also failed to dispel the suspicious circumstance that shroud its execution. The right to execute a Will is statutorily recognised by Section 59 of the Indian Succession Act, which postulates that every person of sound mind, not being a minor, may dispose of his property by way of a Will. Section 63 thereof requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. The will is thereafter to be attested by two or more witnesses. A Will is to be proved in accordance with the provisions of Sections 67 and 68 of the Evidence Act. Section 67 provides that if a document is alleged to be signed by any person, his signature must be proved to be in his handwriting. Section 68 deals with the proof of the execution of a document required by law to be attested and provides that such a document shall not be used as evidence until one attesting witness at least has been called for proving its execution. The proof of a Will does not end with the deposition of the attesting witnesses and the scribe. The R.S.A. No.2007 of 1982 -6- propounder of a Will is thereafter required to dispel any suspicious circumstances that may surround its execution. The Hon'ble Supreme Court succinctly set out the legal requirements for proof of the execution of the Will in H. Venkatachala Iyengar v. B.N.Thimmajamma and others AIR 1959 SC 443 by holding as follows:- “ Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.” “19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the R.S.A. No.2007 of 1982 -7- departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the R.S.A. No.2007 of 1982 -8- document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely R.S.A. No.2007 of 1982 -9- technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.” It is, therefore, apparent that proof of the execution of a Will apart, the propounder thereof is required to dispel all or any suspicious circumstances that may shroud its execution. The trial court as also the first appellate court have referred to a large number of suspicious circumstances while holding that the appellants have failed to dispel suspicious circumstances that shroud the execution of the Will Ex. D2. It would, therefore, be appropriate to examine the Will Ex-D2,and the evidence adduced so as to ascertain whether the appellants have succeeded in discharging the onus placed upon them. The Will Ex. D2 dated 28.10.1973 is scribed by Hans Raj and attested by Amar Singh and Chuhar Singh son of Chowkidar. Hans Raj stepped into the witness box to prove that he had scribed the Will upon instructions received from the deceased. Amar Singh deposed so as to establish the attestation of the Will. Both the trial Court and the first appellate court have disbelieved their depositions as unreliable and contradictory. A suspicious circumstance that led the courts below to discard their deposition is a material discrepancy between their statements. Hans Raj, deposed that Amar Singh was alone when he approached him to get the Will scribed and after instructing him about the contents of the Will, went to fetch the attesting witnesses. In the meanwhile, he scribed the will. Amar Singh (DW3) on the other hand deposed that the Will was scribed in their presence, thus, contradicting the scribe Hans Raj on a material aspect of the execution of the Will. It would also be necessary to R.S.A. No.2007 of 1982 -10- mention here, and as held by the courts below, that Amar Singh (DW3) the only attesting witness examined by the appellants, deposed that the Will was attested by one Prem son of Chowkidar, whereas the Will is attested by Chuhar Singh son of Chowkidar. The explanation that this was a mere slip of the tounge was rightly rejected by the courts below. An attesting witness would not make such a fundamental error in identifying the other attesting witness. Another significant fact arises from the register produced by the scribe Hans Raj. The register contains an entry that the will was executed on 28.10.1973. The next entry appears after a gap of six months and the last entry is dated 29.05.1975. The sparse entries have been adversely commented upon. It would also require mention that the entry in the scribes register records one Kartar Singh as an attesting witness. His name is followed by the words “Bakalam Khud” i.e. signed in his own hand. However, neither the register nor the Will bears his signature. The appellant's explanation, as put forth by the scribe, that Kartar Singh was called away for some other work before he could append his signatures, was rightly rejected by the courts below as a lame excuse and a illogical attempt to explain a serious discrepancy. The courts below rightly drew an inference that Kartar Singh Lambardar's name was recorded as the appellants expected Kartar Singh to attest the Will but he refused to oblige them. Another significant aspect that was considered suspicious enough to discard the Will was that Joginder Singh one of the appellants, executed a General Power of Attorney Ex. P7, authorizing Sadhu Singh to make a statement admitting that no Will was executed by Milkhi @ Prem Singh. The power of attorney was neither explained nor retracted and, therefore, was considered as a suspicious circumstance. . It is true that disinheriting a natural heir, who but for testamentary succession would succeed to the property, is not by itself sufficient to discard a Will. Similarly failure to register a will cannot by itself lead to R.S.A. No.2007 of 1982 -11- rejection of a Will. A Will admittedly does not require registration. However, the Will Ex. D1 was registered, and a natural suspicion would arise as to why the Will Ex. D2 was not registered. The Will Ex. D2, contains a recital that the testator is disinheriting Sadhu Singh, his nephew (brother of the appellants), as he was not on good terms with the testator. No reference is, however, made to Smt. Indri, his real sister. The courts below, therefore, rightly held that if the deceased could assign a reason to disinherit a nephew, it was surprising that he did not choose to make any reference to his only sister. I find no error in the reasoning adopted by the courts below to hold that in the facts and circumstances of the present case, failure by the testator to refer to or assign any reason for disinheriting his only sister is a suspicious circumstance. Apart from the circumstances referred to above, the first appellate court proceeded to make a visual appraisal of the Will Ex.D2 and thereafter held that the space between the lines was narrower in the beginning of the Will and wider towards its end. The thumb impressions and signatures of the attesting witnesses which should normally appear at the end of the Will were preceded by the stamp of the Deed Writer. It was, therefore, concluded that the deed writer affixed his stamp between the thumb impressions and the recitals so as to fill the space left between the recitals that had been written on a blank piece of paper, that already bore the thumb impression of the testator. A perusal of the impugned judgments and the evidence adduced to prove the execution of the will and the circumstances referred to above, clearly establish that the evidence adduced by the appellants is riddled with contradictions, unexplained inaccuracies and suspicious circumstances that are cumulatively sufficient to hold that not only have the appellants failed to prove the execution of the Will but have also failed to dispel the suspicious circumstances that shroud its execution. The above facts, duly R.S.A. No.2007 of 1982 -12- considered and relied upon by the learned courts below to discard the will in my considered opinion leave no manner of doubt that the Will Ex.D2 is a forged and fabricated document, created by the appellants to deprive the respondents of their rightful inheritance to the estate of Milkhi @ Prem Singh. The concurrent findings returned by the courts below rejecting the Will Ex D-2, therefore, do not require interference. The impugned judgments do not suffer from any errors of fact, misreading of evidence, perversity in the process of reasoning or in the conclusions so recorded. As a result, the findings of fact recorded by the courts below discarding the Will Ex.D2 as a forged and fictitious document, are affirmed. In view of what has been stated herein above, the appeal is dismissed with no order as to costs. November 4th , 2008 (RAJIVE BHALLA) nt JUDGE