IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1915 of 1983 Date of Decision: 15.12.2008 Karam Singh and others …. Appellants vs. Smt. Bachan Kaur, etc. …. Respondents Coram: Hon’ble Mr. Justice Rajive Bhalla. Present: Mr. Kabir Sarin, Advocate for the appellant. Mr. K.S. Dadwal, Advocate for respondent No.1. Mr. S.K. Singla, Advocate for respondent No.2. **** Rajive Bhalla, J (Oral) CM No.10668-C of 2005 Prayer in this application filed under Order 22 Rule 4 of the Code of Civil Procedure is to implead one Shindo daughter of Bachan Kaur, now wife of Jagjit Singh as legal representative with respect to the share of deceased Bachan Kaur. Counsel for the non-applicant-appellant has no objection. In this view of the matter, the application is allowed. Smt. Shindo daughter of Bachan Kaur is impleaded as the legal representative of Bachan Kaur for the purpose of this appeal, alone. Office is directed to carry out necessary corrections in the memorandum of parties. RSA No.1915 of 1983 Bachan Kaur widow of Waryam Singh and his daughter Tarsem Kaur, filed a suit for permanent injunction to restrain Dalel Singh, Bawa Singh, Karam Singh and Lachhman Singh from interfering in her peaceful possession over her house, measuring four marlas and two other plots measuring four marlas and five marlas each situated in village Baghpur, Police Station Sadar, Tehsil and District Hoshiarpur. In addition, RSA No.1915 of 1983 -2- they prayed for grant of a decree for possession of 104 kanals 15 marlas of agricultural land situated in village Baghpur, Police Station Sadar, Tehsil and District Hoshiarpur. Dalel Singh etc. filed a written statement denying the correctness of the averments in the plaint and asserted that Waryam Singh had died unmarried and issueless. They also denied that Bachan Kaur was his wife and Tarsem Kaur his daughter. It was also asserted that six years before his death, Waryam Singh executed a registered will bequeathing his entire estate to them as also to Sat Saroop Singh son of Dalel Singh. After considering the pleadings, the learned trial court framed the following issues :- 1. “Whether Bachan Kaur is the widow and Tarsem Kaur is the daughter of Waryam Singh deceased and as such they are his legal heirs? OPP. 2. Whether the plaintiffs are in possession of the house and plots in dispute as owners? OPP. 3. If issue No.2 is proved is the suit for permanent injunction regarding the house and plots in dispute not maintainable? OPD. 4. Whether the plaintiffs are entitled to the possession of the land in dispute measuring 104 kanals 15 marlas as the legal heirs of Waryam Singh deceased? OPP. 5. Whether the defendants are the collaterals of Waryam Singh deceased and are in possession of the properties in dispute as owners on the basis of a validly executed will by Waryam Singh deceased in their favour? OPD. 6. Whether the plan submitted by the plaintiffs with the plaint is not correct and no house exists at the spot as shown in the RSA No.1915 of 1983 -3- plan, if so, to what effect? OPD. 7. Whether the plaintiffs are entitled to the permanent injunction prayed for regarding the house and plots in dispute? 8. Relief.” After considering the dispute in its entirety, the trial court held that Bachan Kaur is the legally wedded wife of Waryam Singh and Tarsem Kaur, his daughter born from this union. The registered will propounded by the appellants, was rejected as being shrouded by suspicious circumstances. A decree for declaration of ownership and for possession was therefore passed in favour of Bachan Kaur and Tarsem Kaur. The prayer for grant of an injunction, with respect to the house, was declined as in the meanwhile, the house was demolished. Aggrieved by the aforesaid judgment and decree, the appellants filed an appeal whereas the respondents filed cross-objections. The first appellate court dismissed the appeal and accepted the cross-objections thereby affirming the findings with respect to marriage, rejection of the will and the paternity of Tarsem Kaur. Counsel for the appellants submits that the courts below have misread the evidence and have relied upon mere conjectures and surmises to hold that Bacham Kaur is the wife and Tarsem Kaur the daughter of Waryam Singh. The evidence of marriage is inherently flawed, patently false and contradictory. It is urged that the respondents have failed to adduce any evidence to establish the ceremonies of marriage. The marriage allegedly took place in 1960 whereas the affidavits Ex.P-12/A, B, and statements of Bachan Kaur and Waryam Singh Ex.P12/E and Ex.P12/D were executed and recorded in the year 1962. It is further submitted that the voter list Ex.P-4 does not refer to Bachan Kaur but refers to a lady named Gurbachan Kaur. The birth entry Ex.P-1 is based on RSA No.1915 of 1983 -4- information supplied to an illiterate chowkidar. Another argument is that in the will, Waryam Singh, has described himself as unmarried and issueless thereby suffering an admission with respect to his marital status. The courts below therefore were not justified in rejecting the will merely because the alleged wife and a daughter have been disinherited. It is further submitted that even if Bachan Kaur and Tarsem Kaur are held to be the wife and daughter of the deceased, the registered will, in favour of the appellants would oust their claim of ownership. It is prayed that in this view of the matter, findings based upon mere conjectures and surmises be set aside. Counsel for the respondents, on the other hand, submits that there is sufficient evidence on record to establish Bachan Kaur's marriage to Waryam Singh. Bachan Kaur has stepped into the witness box and deposed in great detail with respect to her marriage and the ceremonies attendant thereto. She has produced witnesses in support of her assertion that initially the marriage was by chadar andaji but later on it was formalized by ceremonies performed in a Gurdwara. It is submitted that this evidence remains un-rebutted and was, therefore, rightly accepted by the courts below. The affidavits Ex.PW/12/A, B, and the statements of Bachan Kaur and Waryam Singh Ex.PW/12/E, Ex.PW12/D were executed by the deceased and Bachan Kaur to acknowledge the marriage and the birth of Tarsem Kaur. It is further submitted that Ex.P-12 is the report from the Director, Finger Prints, Phillaur which establishes that the thumb impressions appearing on the affidavits and the statement were appended by Waryam Singh. The birth entry in the chowkidar's register establishes the birth of Tarsem Kaur. Information regarding the birth of Tarsem Kaur was given by Waryam Singh himself and the entry bears his thumb impression. As regards the will it is submitted that the will was manufactured by the appellants and was, therefore, rightly discarded by the RSA No.1915 of 1983 -5- courts below. Dalel Singh, a beneficiary has taken an active part in ensuring the exclusion of the wife and daughter as the will does not make any reference to the wife or the daughter and no reason is assigned for disinheriting them. It is prayed that as concurrent findings of fact recorded by the courts below do not suffer from any error and as no question of law muchless a substantial question of law arises for consideration, the appeal be dismissed. I have heard counsel for the parties and perused the impugned judgments as also the record. The dispute in the instant case pertains to the right to inherit the estate of Waryam Singh, deceased. The appellants allege that they are his collaterals whereas the respondents allege that they are his wife and daughter. The appellants apart from denying that Bachan Kaur is the wife and Tarsem Kaur the daughter of Waryam Singh have propounded a will allegedly executed by Waryam Singh. Thus, the dispute in essence relates to the status of Bachan Kaur and Tarsem Kaur as wife and daughter of Waryam Singh and to the legality of the will allegedly executed by Waryam Singh. The courts below are concurrent in their opinion that there is sufficient evidence on record to hold that Waryam Singh and Bachan Kaur were husband and wife and that Tarsem Kaur is their daughter born from this union. The courts below have also held that the will, produced by the appellants, cannot be accepted as the last valid will of Waryam Singh. In order to place the conclusions, recorded by the Courts below in their right perspective a brief reference to the evidence would be appropriate. Bachan Kaur stepped into the witness box and deposed as PW-12 that she was married to one Rama, who passed away. The mother of Niranjan Singh interceded and arranged her marriage to Waryam Singh. The marriage was initially solemnized by chadar andaji but subsequently RSA No.1915 of 1983 -6- formalised by ceremonies in the village Gurdwara. The marriage is acknowledged by affidavits sworn by Waryam Singh and Bachan Kaur Ex.PW-12/A, B, and their statements Ex.PW12/D and Ex.PW12/E respectively. The thumb impressions of Waryam Singh on these affidavits were compared by the Director, Finger Prints, Phillaur and found to be correct. The birth entry dated 15.01.1963 Ex. P-1 refers to the birth of a daughter to Waryam Singh and was recorded by the Chowkidar upon information provided by Waryam Singh. The entry bears the thumb impression of Waryam Singh. In the voter list Ex.P-4, though Bachan Kaur is wrongly described as Gurbachan Kaur but as the husband’s name and his father's name is correctly recorded, this document supports the fact of marriage. A fact that puts paid to the appellants’ assertion that Waryam Singh died unmarried and issueless is the deposition of PW-11, Sat Saroop Singh son of Dalel Singh who has deposed in favour of Bachan Kaur by stating that she was married to Waryam Singh and Tarsem Kaur is their daughter. Sat Saroop Singh's deposition is significant as he is a beneficiary under the will and is the son of Dalel Singh. It would also be necessary to mention here that at the time of marriage he was Secretary of the concerned Gurdwara and has deposed with respect to the ceremonies of marriage etc. The evidence referred to hereinabove, was accepted by the courts below as sufficient to hold that Smt. Bachan Kaur was the wife and Smt. Tarsem Kaur is the daughter of Waryam Singh deceased. I find no error in the process of reasoning, whether of fact or of law as would enable this court to interfere. The concurrent findings, based upon material evidence clearly establish that Waryam Singh married to Bachan Kaur and Tarsem Kaur is their daughter from this union. The arguments by counsel for the appellants that the marriage allegedly took place in 1960 whereas the affidavits and the statements were executed and recorded in 1962 are RSA No.1915 of 1983 -7- irrelevant as the authenticity of Waryam Singh's thumb impression have been duly proved. The recitals in the will that Waryam Singh is unmarried and issueless is falsified by the affidavits, the statements, the birth entry and the entry in the voter list read along with the oral evidence adduced by the respondents. It is, therefore, apparent that the impugned findings do not merit interference. As regards the registered will, both the courts below have held that Dalel Singh, a beneficiary was present during the execution of will, and as noticed by the courts below, one of the witnesses PW-13 has deposed that Waryam Singh was under the influence of liquor. It has also been held that instead of procuring the services of the lambardar of their community the appellants secured the services of the harijan lambardar. The courts below also discarded the will as the recital that Waryam Singh is unmarried and issueless was found to be false. The courts below also held that the will was unnatural as the wife and the daughter were disinherited. The fact that Dalel Singh, a beneficiary, played an active role in the execution of the will remains un-rebutted and therefore casts a serious doubt on the validity of the will. The onus to establish that the presence of Dalel Singh, at the execution of the will, was merely incidental and had no bearing upon the execution of the will, lay upon the appellants. The appellants however, have failed to explain the presence of Dalel Singh at the execution of the will. The deposition by PW-11 Sat Saroop Singh son of Dalel Singh, himself a beneficiary, in favour of the respondents clearly negatives the recitals in the will. In the will, Waryam Singh describes himself as unmarried and issueless, a fact, that is palpably incorrect and falsified by his affidavits Ex.PW-12/A, Ex.PW-12/B and his statement Ex.PW12/D made before a notary public. Another significant piece of evidence that establishes the falsity of the recitals in the will, is the RSA No.1915 of 1983 -8- birth entry reflecting the birth of a daughter to Waryam Singh, recorded on the statement of Waryam Singh. The entry bears his thumb impression. An equally important fact is that if Waryam Singh was issueless and unmarried there was no need for him to execute a will as the appellants would have succeeded to his property as collaterals. It, therefore, appears that the appellants, feared that as Waryam Singh had married Bachan Kaur, they would not succeed to his estate and therefore, coerced and manipulated Waryam Singh into executing a will. The cumulative effect of the circumstances referred to hereinabove were rightly considered by the courts below as sufficiently suspicious to hold that the will though executed by Waryam Singh did not reflect his free will and would, therefore, have to be discarded. It is true that a will more often than not disrupts the normal course of inheritance and disinherits a person, likely to succeed to the estate of the deceased. Where, however, recitals in a will are palpably false and close relatives like a daughter and wife or both are not referred to, muchless disinherited, as is the situation in the present case, a court would be required to scrutinize the evidence and the circumstances with a great degree of care and caution. The findings recorded by the courts below, that the will executed by Waryam Singh did not reflect his true will, do not suffer from any error whether of fact or of law and would, therefore, have to be affirmed. As no question of law muchless a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. 15.12.2008 (Rajive Bhalla) sk Judge