R.S.A.NO. 5295 OF 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.NO. 5295 OF 2003 Date of decision:31.07.2009 Ashok Kumar ......Appellant Versus Joginder Singh and others ......Respondents BEFORE: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr. Rakesh Gupta, Advocate for the appellant. Mr. Yash Paul Malik, Advocate for Mr. R.S.Tacoria, Advocate for respondent no. 1. Rajive Bhalla, J. The appellant challenges the judgments and decrees dated 6.09.2000 and 26.08.2003, passed by the Civil Judge (Junior Division) Kaithal and the Additional District Judge, Kaithal, decreeing the suit filed by respondent no. 1 and dismissing his appeal. The plaintiff-respondent no. 1 filed a suit for declaration that the Will dated 8.04.1979, allegedly executed by his mother Smt. Dharamwati, bequeathing her land measuring 6 kanals and 1 marla in favour of his nephew, Ashok Kumar son of Dayal Singh, the appellant is a forged and fabricated document. R.S.A.NO. 5295 OF 2003 2 The plaintiff alleged that the suit land was owned by his mother Smt. Dharamwati. She died in the year 1980, leaving behind the plaintiff, and Dayal Singh her sons and Shakuntala Devi her daughter, as her natural heirs. The appellant and respondent no. 2 got a mutation of inheritance sanctioned, in favour of the appellant, on the basis of a forged and fabricated will dated 8.04.1979. The appellant filed a written statement denying the averments in the plaint and alleged that as the plaintiff is an attesting witness to the will, he cannot be allowed to challenge its legality. It was further asserted that the will bears the signatures of Dharamwati and is duly attested by two witnesses. Respondents no. 2 and 3 were proceeded against ex parte. Respondent no. 1 filed a replication denying the averments in the written statement and reiterating those in the plaint. On the basis of the pleadings, the learned trial court framed the following issues:- “1. Whether the plaintiff is owner in possession of the suit land as alleged?OPP. 2. Whether the will dated 8.4.79 and order dated 18.8.96 of sanctioning mutation no. 4034 in favour of the defendant no. 1 is illegal?OPP 3. Whether the present suit is not maintainable?OPD. R.S.A.NO. 5295 OF 2003 3 4. Relief.” Vide order dated 16.11.98 issue no. 2 was re-cast as: “2. Whether the will dated 8.4.79 executed in favour of defendant no. 1 by deceased, Dharamwati is executed is disposable state of mind and also mutation no. 4034 on the basis of Will, are legal and valid?OPD” After an appraisal of the pleadings, the evidence adduced and a due consideration of the arguments addressed, the trial court decreed the suit by holding that the will dated 8.04.1979, is a forged document, surrounded by unexplained suspicious circumstances. The trial court held that after the death of their father, there was a dispute between the respondents on the one hand and their relatives on the other. Dayal Singh was pursuing this litigation as respondent no. 1 was posted at Delhi. Respondent no. 1 handed over blank signed papers to Dayal Singh for the purpose of this litigation but it appears that Dayal Singh misused these papers to create a will, in favour of his son showing respondent no. 1 as an attesting witness. In order to fortify these finding a reference was made to the fact that the signatures of respondent no. 1 appear on the left and right side of the will. It was held that signatures on the left and right of a paper, are affixed on affidavits or written statements and not on wills. It was also noticed that the deed writer signed in the R.S.A.NO. 5295 OF 2003 4 middle of the will between the two signatures of Joginder Singh, the thumb impression of Dharamwati appears below the signatures of Joginder Singh respondent no. 1 and Sham Sunder the attesting witness has signed the will at two places, on the left and right side of the paper. Aggrieved by the aforementioned judgment and decree, the appellant filed an appeal. Vide judgment and decree dated 26.08.2003, the Additional District Judge, Kaithal dismissed the appeal and affirmed the findings of the trial court. Counsel for the appellant submits that the impugned judgments are riddled with errors of fact and law. The suspicious circumstances referred to by the courts below are inconsequential , as respondent no. 1 is an attesting witness of the will. His story that his signatures were obtained on blank papers should have been summarily rejected. It is submitted that as there was a dispute between Joginder Singh respondent no. 1 and Dayal Singh respondent no. 2, there was no question of respondent no. 1 affixing signatures on blank papers and handing them over to respondent no. 2. It is further argued that as the law does not require that a will shall be scribed by a regular deed writer, the absence of a regular deed writer cannot by itself be a circumstance to reject a will . The unnatural space between the lines or the nature in which signatures have been affixed are natural as the scribe is not a trained deed writer. As the execution of a will stands proved, the courts below were not justified in dismissing the suit by holding that the will is R.S.A.NO. 5295 OF 2003 5 surrounded by unexplained suspicious circumstances. It is further argued that the deceased was residing with the appellant, her grand son and the will is the natural outcome of love and affection. It is also argued that a suit for declaration simpliciter without a prayer for consequential relief of possession is not maintainable. Counsel for respondent no. 1, the contesting respondent, submits that the proof of a will is a question of fact, particularly where the findings are preceded by clear and cogent reasons. The impugned findings, rejecting the execution of the will, do not suffer from any error as would require interference. The courts below have referred to a large number of unexplained suspicious circumstances surrounding the execution of a will and therefore, the appeal be dismissed and the impugned judgments be affirmed. Counsel for the appellant has framed the following substantial questions of law: “1. Whether the will dated 8.4.79 has been duly proved? 2. Whether the will dated 8.4.79 is surrounded by suspicious circumstances? 3. Whether the respondents being the grand son and serving the mother was the only deserving beneficiary of the grand mother? R.S.A.NO. 5295 OF 2003 6 4. Whether the suit for declaration simplicity is maintainable and without the prayer of consequential relief of possession or joint possession?” I have heard counsel for the parties, perused the impugned judgments and considered the questions of law framed by counsel for the appellant. The dispute in the instant appeal relates to the validity of a will dated 8.04.1979, allegedly executed by Dharamwati, the grandmother of the appellant and mother of the respondents. By way of this will she allegedly bequeathed her property to the appellant, her grandson to the exclusion of her children. Joginder Singh respondent no. 1, Dayal Singh respondent no. 2 are sons and Shakuntala Devi respondent no. 3 is the daughter of the testator. The appellant who is the son of Dayal Singh is the sole beneficiary under the will. As the will has been propounded by the appellant, the onus to prove its execution and to dispel all suspicious circumstances lies upon the appellant. Joginder Singh, respondent no. 1, filed the instant suit alleging that the will dated 8.4.1979 is forged. The appellant alleged, amongst others, that as respondent no. 1 is an attesting witness of the will, he cannot challenge its execution. In turn, Joginder Singh alleged that the will had been created on blank signed papers, entrusted by him to Dayal Singh, father of the appellant during an earlier litigation. R.S.A.NO. 5295 OF 2003 7 The courts below have recorded concurrent conclusions that the will, though, signed by respondent no. 1 as an attesting witness, is surrounded by unexplained suspicious circumstances and therefore, cannot be accepted as the will of the testator. The courts below have commented adversely on the space between the lines, the affixation of signatures on the left and right side of the paper as is affixed in an affidavit, the placing of the signatures of the deceased on the left side of the will and then also above that of respondent No.1 etc. The courts below have also held that the will was prepared on blank signed papers. In order to place the conclusions recorded by the courts below in their correct perspective, it would be appropriate to reproduce a relevant extract from the judgment of the first appellate court:- “A person can tell lie but the circumstance cannot. A close perusal of the will, certified copy of which is Ex.D1 clearly indicates that in fact, no will was executed by the deceased, rather the said will has been forged on a blank paper, which already having the signatures of Joginder Singh plaintiff. A close perusal of Ex. D1, which is certified photo copy of the will reveals that the alleged will bears the signatures of Joginder Singh on two sides, i.e., on the left side and on the right side of the paper. Such types of signatures are made just to file the written statements in any civil suit. Ex. D1, further R.S.A.NO. 5295 OF 2003 8 reveals that Krishan Sarup, deed-writer signed in the middle of the paper in between the two signatures of Joginder Singh. Signatures by the scribe are always made on one side of the paper and not in the middle of the paper. Ex. D1 further reveals that the signatures of Dharamwati are on left side of the paper, and that too below the signatures of Joginder Singh. Had in fact, Dharamwati, executed the will, then certainly, she must had signed either in the middle of the paper or on the right side of the paper or at the most above the signatures of Joginder Singh, alleged attesting witness to the will. Similarly, Sham Sunder attesting witness signed the will on two places, i.e. on the left side and right side of the paper. Sham Sunder while appearing in the witness-box as DW2 failed to explain why he signed twice on the will and that too at the bottom. Had the signatures of attesting witness been obtained at the bottom and then at one side of the will in the middle of the subject matter, then it could be concluded that the signatures of the attesting witnesses were obtained twice to prove the authentication of the writing, but in the present case, the signatures of the attesting witnesses on both the sides of the R.S.A.NO. 5295 OF 2003 9 paper at the bottom are sufficient to suggest that the will is a forged document and same had been forged on the blank paper bearing the signatures of Joginder Singh. Signatures of Sham Sunder, another attesting witness have been obtained on both the sides just to cover up the signatures of Joginder Singh and to show that both the witnesses signed in the similar manner.” The above extract, in my considered opinion, leaves no ambiguity as to the fact that the will is a fabricated document, brought into existence by the appellant and his father Dayal Singh (respondent No.2). Counsel for the appellant has failed to advance any argument, apart from an assertion that as the will is not scribed by a regular deed writer , the discrepancies in its execution were natural. In my considered opinion, the manner in which the signatures of the attesting witnesses, the scribe and the testator appear on the will, leaves no manner of doubt that the will was forged on a paper, that already bore the signatures of respondent no. 1. It would be necessary to mention that though Dharamwati passed away in 1980, the will was produced, for the first time in the year 1996. No explanation, whatsoever, is forthcoming for this inordinate delay. Furthermore, the deposition of the attesting witness Sham Sunder does not inspire confidence, as he has failed to furnish any explanation for R.S.A.NO. 5295 OF 2003 10 affixing his signatures twice. This apart, the will appears to be the handy work of Dayal Singh respondent no. 2 who had earlier set up a will dated 2.12.1978, in his favour which was rejected in Civil Suit no. 1 of 1981, titled as “Joginder Vs. Dayal Singh”. It appears that as respondent no. 1 resided in Delhi, the appellant and Dayal Singh made a plan to deprive him of his inheritance and therefore, forged the will dated 8.04.1979. By way of the first question, the appellant asserts that as the will has been proved, the courts below should have dismissed the suit. It would be necessary to mention here that the proof of the execution of a will and its legality are matters apart, the proof of the execution of a will does not discharge the onus placed upon the propounder of a will to explain all or any suspicious circumstances that may surround its execution. The second question of law relates to the suspicious circumstances and has already been answered by holding that the suspicious circumstances recorded by the courts below are sufficient to hold that the will is a forged document. The correctness of the third question of law cannot be disputed. However, service to the grandmother would not confer legitimacy on the will. The last question whether a suit for declaration simpliciter, without a prayer for possession is maintainable is answered by holding that as the plaintiff respondent no. 1 has claimed ownership with joint possession as a co-sharer, there is no requirement for a separate prayer for possession. In view of what has been stated hereinabove, as no R.S.A.NO. 5295 OF 2003 11 substantial question of law arises for consideration, the appeal is dismissed. [RAJIVE BHALLA] JUDGE 31st July, 2009 SKaushik