R.S.A.No. 2372 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 3.8. 2009 R.S.A.No. 2372 of 1998 Gian Chand ......Appellant Versus Raj Dulari and another .......Respondents R.S.A.No. 2373 of 1998 Gian Chand ......Appellant Versus Raj Dulari and others .......Respondents R.S.A.No. 2374 of 1998 Gian Chand ......Appellant Versus Raj Dulari and another .......Respondents R.S.A.No. 2375 of 1998 Raj Pal ......Appellant Versus Raj Dulari and another .......Respondents R.S.A.No. 2372 of 1998 2 R.S.A.No. 2376 of 1998 Raj Pal ......Appellant Versus Raj Dulari and others .......Respondents R.S.A.No. 2377 of 1998 Raj Pal ......Appellant Versus Raj Dulari and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Anil Kshetarpal, Advocate, for the appellants. Mr.R.S.Mamli, Advocate, for respondent No.1. None for respondent No.2 **** SABINA, J. Vide this judgment, RSA Nos. 2372 to 2377 of 1998 are being disposed of as similar controversy is involved in all the cases and these have arisen out of the same judgment. Three suits were filed by the claimants to the estate of Shadi (deceased) widow of Attar Singh i.e. Civil Suit No. 55/90 of 1997 (Gian Chand vs.Raj Dulai etc.), Civil Suit No.117 of 1990 (Raj Pal vs. Raj Dulari etc.) and Civil Suit No.106 of 1988 (Raj Delari vs. Raj Pal etc.). All these three civil suits were decided by the trial Court vide single judgment dated 27.11.1995. Civil suit No.55/90 was R.S.A.No. 2372 of 1998 3 dismissed with costs; civil Suit No.106/90 was decreed to the extent that the plaintiff is entitled to inherit ¾ share in the property of her father and civil suit No. 117/90 was decreed to the extent of 1/4th share in the total property of late Attar Singh i.e.1/2 share of the property of Smt.Shadi and the same was dismissed to the extent of remaining defendants. Aggrieved by the same, plaintiffs Gian Chand and Raj pal filed three appeals each which were dismissed by the Additional District Judge, Jagadhari, vide judgment and decree dated 16.4.1998 and the findings of the trial Court were affirmed. Hence, the present appeals by the plaintiffs. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 to 10 of its judgment, are as under:- “3. Shadi wife of Attar Singh had inherited the following property after the death of her husband Attar Singh:- (a) Land measuring 168 kanals 11 Marlas comprised of Khewat No.53, Khatauni No.84, Rect. No.43, Khasra No.16 (8-0), 24/2(3-6), 25(7-7), Rect. No. 46, Khasra No.11(3/16), Rect. No. 47, Khasra No.1(8-0), 2(8-0), 3(8-0), 4(8-0), 5(8-0), 6(8-0), 7(8-0), 8(8-0), 9(8- 0), 10(8-0), 11(8-0), 12(8-0), 13(8-0), 14(8-0), 15(8-0), 16 (3-18), 17(2-7), 18(1-2), Rect. No.48, Khasra No.6/1(4- 12), Rect. No.44, Khasra No.21(6-19), 15(7-6), Kittas 24, as per jamabandi for the year 1983-84, situated in village R.S.A.No. 2372 of 1998 4 Barheri. (b) Land bearing 76 kanals- 2 Marlas comprised in Khewat No.53, Khatauni No.83, Rect. No.28, Khasra No.16(11-0), 24(11-0), 25(8-0), Rect. No.38, Khasra No.4 (8-0), 5(8-0), 6/1(7-11), 7/1(7-11), 13/2(6-0), 14(8-0), Khatauni No.82, Rect. No.14, Khasra No.8/1(0-2), Rect. No.80(0-18) including Garha Khad and Bara, as per jamabandi for the year 1983-84 situated in village Barheri. (c ) One house consisting of rooms and and a varandah and courtyard situated in the abadi of village Barheri and bounded as under:- East: Gali Share-aam and then house of Raghunath. West: House of Kishan Chand. North: House of Ram Kishan and house of Paras Ram. South: House of Kishan Chand and house of Sadhu Ram. (d) Gair Mumkin tubewell in Khewat No.28, Khatauni No.52, Rect. No.24, Khasra No.25/4(0-9). (e) Gair Mumkin Garha Khad in Khewat No.53, Khatauni No.82, Rect. No.14, Khasra No.8/1(0-2) and Khasra No.80(0-18). 4. It was alleged before the trial Court that Gian R.S.A.No. 2372 of 1998 5 Chand had helped Smt. Shadi and her son namely Raj Pal during the time of her adversity and he provided her with food and shelter and also served her in duress, when she was thrown out by her daughter named Smt.Raj Dulari. Rula Ram, son-in-law of Shadi also not entertained Smt.Shadi during the period of her adversity. Raj Dulari is the real daughter of Smt.Shadi who was born out of wed lock between Smt.Shadi and Attar Singh, whereas, Raj Pal was born after the death of Attar Singh. Raj Pal was born from Smt.Shadi and one Des Raj. As per Gian Chand and Raj Pal, Smt.Shadi, during her life time had executed a Will duly registered on 9.7.1975, out of her free will and without any pressure or influence of anybody else and as a token of her love and affection for her son namely Raj Pal and in lieu of the services rendered by Gian chand to her and her son, who was of tender age at that time. Smt.Shadi died on 1.7.1983 leaving behind the properties mentioned above. After her death Gian Chand and Raj Pal became owners of the property including the house, previously owned by the deceased Smt.Shadi. Gian Chand also took a plea that the land measuring 168 kanals 11 Marlas was already in his possession on long lease. R.S.A.No. 2372 of 1998 6 5. After the death of Smt.Shadi, there was a dispute about the mutation of the property of deceased. In the first instance the mutation of the said property was entered in the name of Gian Chand and Raj Pal, but same being a contested mutation was referred to the Assistant Collector, Ist Grade, Thanesar, who decided the same in favour of Smt.Raj Dulari. Thereafter, he along with Raj Pal filed an appeal against the said order dated 30.4.1984 passed by the Assistant Collector, Ist Grade, Thanesar before the Collector, who set aside the said order and sanctioned the mutation of the land in dispute in favour of Smt.Raj Dulari and Raj Pal in equal shares on 11.7.1987. Thereafter, RSA was filed before the Commissioner who accepted the same and recommended the sanction of the mutation in his favour and in favour of Raj Pal on the basis of registered Will referred to above. The recommendation of the Commissioner who concurred with the above findings of the Collector. A representation against the order of Financial Commissioner was also moved before the Hon'ble High Court but the same was dismissed as per statement of learned counsel for Gian Chand. A plea was taken by Gian Chand that Raj Durari has no right, title or interest R.S.A.No. 2372 of 1998 7 in the disputed property. She and her husband were hostile towards Smt.Shadi during her life time and they turned her out from her house along with Raj Pal who was in her lap at that time. They also levelled false allegations of unchastity against her and Raj Pal was alleged to be her illegitimate son. He was the person who had given shelter to her and her son in those day of adversity and whereupon, she gave the land mentioned above on lease to him. Smt.Raj Dulari had also challenged the above mentioned lease but her suit and appeal were dismissed. Gian Chand also took a plea that Smt.Raj Dulari had took advantage of wrong entries and during the pendency of mutation proceedings has even sold out one bara and also took a loan over the land measuring 76 kanals 2 marlas. She has also threatened to sell away and alienate the remaining disputed property left by Smt.Shadi. 6. Raj Pal has also supported Gian Chand on the fact that Smt.Shadi during her life time had executed a registered Will on 9.7.1975. He also took plea on the same line as of Gian Chand. He further took a plea that Raj Dulari mortgaged the land measuring 67 kanals 15 marlas for an amount of Rs.7400/- with Central Bank of India. He has also challenged the said R.S.A.No. 2372 of 1998 8 mortgage deed as null and void, illegal and not binding upon his rights as she had no right or title in the land in dispute. Plea was also taken that another loan of Rs.10,000/- was raised by her from P.L.D.B. And it is also illegal and void. He has also challenged the mutation no.930 sanctioned on 23.2.1987 being null and void. 7. Raj Dulari while filing her written statement in civil suit no.55 and 117 and by filing her separate suit being no.106 have taken plea that she is absolute owner of the above mentioned property in dispute. She is the only daughter of deceased Smt.Shadi, who died in 1983. She denied that Raj Pal is son of deceased Shadi and he has got no relationship with her. Gian Chand and Raj Pal in collusion with the revenue authorities have got sanctioned the mutation No.930 dated 26.5.1984 about the suit land without any right, title or interest. Raj Pal is not the son of Smt.Shadi, hence the said mutation is bogus and fictitious one. She is the sole legal heir of Smt.Shadi, hence, nobody else except her has any right, title or interest in the suit land. Raj Pal and Gian Chand, who were bent upon the alienate and to dispossess her therefrom on the basis of the mutation in their favour. She has taken R.S.A.No. 2372 of 1998 9 plea that decree for declaration to the effect that mutation No.930 in their names relating the suit land is illegal, null and void and not binding upon her rights. She is full owner in possession of the suit land therefore, Raj Pal and Gian Chand be restrained from alienating the suit land or dispossessing from the same. 8. Rah Durari and Raj Pal also filed joint written statement in civil suit No.55, filed by Gian Chand. In the said written statement they alleged that the Will dated 9.7.1975 allegedly executed by Smt.Shadi is surrounded by number of suspicious circumstances. Besides this, it is silent for the reasons for dis- inheritance of Smt.Raj Dulari in the property of the deceased. It is an invalid document in the eyes of law. The same was rightly discarded by the revenue courts and upto the court of learned Financial Commissioner vide judgment dated 5.8.1986. Further, the residential property is required to be stamped as per the market value and therefore, the suit of Gian Chand is also bad for want of proper court fee. As per them, the alleged Will was a result of fraud, mis-representation and un- due influence practised by Gian Chand and Smt.Shadi who has reposed extreme confidence in Gian Chand and who committed breach of trust. Thus, the R.S.A.No. 2372 of 1998 10 impugned Will was not a result of free consent and will. Both of them have took a plea that they being daughter and son of deceased Smt.Shadi are legally entitled to inherit her estate after hear death on 17.7.1983. 9. Raj Dulari and Raj Pal have admitted that Gian Chand in in possession of the land measuring 168 K-11M which was on lease for 99 years but the same is result of fraud and misrepresentation and un-due influence. They admitted that all the proceedings took place before the revenue courts regarding mutation of the suit land. They have also admitted that there was a period of about 10 years when there were some differences with Smt.Shadi but Gian Chand took the advantage of such strained relations and got executed a lease deed for 99 years and the impugned Will dated 9.7.1975 and general power of attorney. He also got a pronote for an amount of Rs.9000/- executed from her. 10. As admitted by Gian Chand by filing written statement in civil suit no.117 had admitted the averments of the plaint of Raj Pal whereas Smt. Raj Dulari and her husband have controverted all the facts thereof. In the said suit Manager, P.L.D.B. Radaur has also filed his written statement. He has pleaded ignorance about the dispute between the parties. All R.S.A.No. 2372 of 1998 11 the averments of the suit filed by Raj Dulari have been controverted by Raj Pal.” On the pleadings of the parties, following issues were framed by the trial Court:- In C.S. No.55 of 1987 “1. Whether the plaintiff is owner in possession of the suit land to the extent of ½ share? OPP 2. Whether the Will dated 9.7.1975 in favour of plaintiff and defendant No.2 is genuine? OPP 3. Whether the plaintiff has no locus standi to file and maintain the present suit? OPD 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether the suit of the plaintiff is time barred? OPD 6. Relief. ” In C.S. No.106 of 1988 “1. Whether Smt.Shadi, mother of plaintiffs, was owner in possession of the suit land ? OPP 2. Whether the plaintiff is only daughter/heir of Smt.Shadi, if so, to what effect? OPP 3. Whether the mutation dated 26.5.84, No. 930 regarding the suit land, is illegal? OPP R.S.A.No. 2372 of 1998 12 4. Whether the plaintiff has no locus standi? OPD 5. Whether the suit is not maintainable in the present form? OPD 6. Whether the suit is misuse of process of law? OPD 7. Whether the suit is time barred? OPD 8. Whether Smt.Shadi executed any registered Will in favour of the defendant. If so, to what effect? OPD 9. Relief. ” In C.S. No.117 of 1990 “1. Whether Smt.Shadi executed a valid Will in favour of plaintiff and defendant No.2 on 9.7.1975? OPP 2. Whether the orders of revenue authorities regarding mutation No.930 are illegal, null and void? OPP 3. Whether the mortgage created by defendant No.1 in favour of defendants No.3 and 4 are null and void and not binding upon the plaintiff ? OPP 4. Whether the suit is bad for want of notice under Section 124 of Haryana Co-operative Societies Act? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD R.S.A.No. 2372 of 1998 13 6. Whether the plaintiff is estopped by his own act and conduct from filing the present suit? OPD 7. Whether the suit is not maintainable? OPD 8. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD 10. Whether the suit is time barred? OPD 11. Whether the plaintiff has no cause of action ? OPD 12. Relief. ” Learned counsel for the appellants has argued that the Courts below had erred in discarding the Will dated 9.7.1975 executed by Shadi in favour of the appellants. The Will was a duly registered document and had been executed by Shadi in her sound disposing mind. She had given reasons for executing the Will in favour of the appellants. It was evident from the written statement filed by Raj Dulari in the suit filed by Gian Chand that she was not very happy with the relationship of her mother Shadi with Des Raj. Shadi had inherited the entire property of Attar Singh. Even Raj Dulari herself had averred in the plaint in the suit filed by her that her mother was exclusive owner of the property in dispute. Hence, learned counsel has submitted that Raj Dulari had no concern with the suit property. R.S.A.No. 2372 of 1998 14 Learned counsel for respondent No.1, on the other hand, has submitted that, in fact, Shadi was a simple lady. Gian Chand had got executed a lease deed, a Will and a pronote in his favour. Shadi has challenged the lease deed during her life time. Had she any inclining about the Will then Shadi would have cancelled the Will. However, the Will in question was not executed by Shadi of her own free Will. No reasons had been given in the Will as to why Raj Dulari has been dis-inherited. After the death of Attar Singh, Raj Dulari and Shadi inherited the property in equal shares and after the death of Shadi, Raj Dulari and Raj Pal inherited her share equally. Admittedly, the suit property was initially owned by Attar Singh and he died in the year 1954. Succession of Attar Singh qua the property opened. Since the property in question was not a Hindu joint family property, after the death of Attar Singh, his widow Shadi and daughter Raj Dulari inherited his property equally. Although Raj Dulari did not plead specifically in this regard but from the admitted facts, it is evident that property of Attar Singh was liable to be inherited equally by his surviving widow and daughter. After the death of Shadi on 1.7.1983, in normal circumstances, her share of property would have devolved on her daughter Raj Dulari and her son Raj Pal. Admittedly, Raj Pal is the son of Shadi and Des Raj. Gian Chand and Raj Pal have placed reliance on Will dated 9.7.1975 alleged to have been executed by Shadi. R.S.A.No. 2372 of 1998 15 A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator. Although, in the present case, the Will in question is a R.S.A.No. 2372 of 1998 16 registered document, yet it does not seem to be a genuine Will. The most important circumstance that makes the Will a suspicious document is that the executant has not given any reason as to why she was dis-inheriting her daughter. Rather it appears that every effort has been made to give reasons as to why Gian Chand was being given share in the property in question. Gian Chand is not related to Shadi. He is an outsider and in normal circumstances, Shadi, if she genuinely wanted to execute the Will by excluding her daughter, she would have executed it in favour of her son Raj Pal. There was no occasion for her to have executed the Will in favour of Gian Chand. Gian Chand, who as per the Will was really helping Shadi in her day to day life, had been leased out the land by Shadi for 99 years. Shadi had also allegedly executed a pronote in his favour with regard to monetary help rendered by him. Hence, there was no occasion for Shadi to have executed the Will also in favour of Gian Chand. The alleged lease deed executed by Shadi in favour of Gian Chand was challenged by her by way of civil suit. Ex.D-2/9 is the judgment passed in the said civil suit. Although the civil suit in question was dismissed yet it shows that all was not well between Shadi and Gian Chand. From this it can be inferred that in case Shadi had any idea about the Will, she would have cancelled the same. Ex.D-2/7 is a suit for permanent injunction filed by Gian Chand and Amar Singh, sons of Sadhu Ram against Shadi, Rura Ram and Raj Dulari. The said suit was decreed in favour of Gian R.S.A.No. 2372 of 1998 17 Chand. Appellant Raj Pal had filed a joint written statement along with Raj Dulari in a suit filed by Gian Chand, wherein he has also challenged the genuineness of the Will. This fact also renders the Will in question a suspicious document as one of the beneficiaries of the Will himself had challenged the genuineness of the Will. In case the relations between Shadi and her daughter were really strained, even then there was no difficulty in mentioning the same by her in the Will to exclude her from inheriting her property on the basis of the Will. In these circumstances, the Courts below rightly held that the Will in question was not a genuine document and was surrounded by suspicious circumstances. The Courts below have also rightly held that the property of Attar Singh was inherited by his surviving widow and daughter in equal shares and thereafter, after the death of Shadi, her share of property was equally inherited by her son Raj Pal and her daughter Raj Dulari. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE August 03, 2009 anita