RSA No. 798 of 1983 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 798 of 1983 Date of decision 16.3.2011 Dhanna Singh Appellants versus Jarnail Singh & Ors. Respondents CORAM : HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.G.S.Dhillon,Advocate for the appellant Mr.Jatinder Singla,Advocate for the respondents ...... JITENDRA CHAUHAN.J The present appeal has been filed against the judgment and decree dated 25.2.1983 passed by learned First Appellate Court whereby the appeal preferred by Jarnail Singh and others was accepted and the judgment and decree dated 3.9.1982 passed by the learned trial Court were set aside. The plaintiff filed a suit for possession of the land measuring 159 Kanals 6 marlas situated in village Bareh. The case of the plaintiff is that Ajmer Singh alias Jagmeri was owner in possession of 109 kanals 6 marlas of land which is duly reflected in jamabandi for the year 1977-78. Ajmer Singh died on 14.8.1980. He was unmarried and issueless. Basakha Singh, the father of the plaintiffs and brother of Ajmer Singh was alive at that time. Ajmer Singh was residing with Basakha Singh. He succeeded land of Ajmer Singh as his sole legal heir. Basakha Singh also died on 31.1.1981. Plaintiffs being the sons of Basakha Singh entered into the shoes of Basakha Singh and succeeded the land of their father and Ajmer Singh, their uncle. The allegations of the plaintiffs are that the defendants got RSA No. 798 of 1983 2 prepared a false and fabricated Will of Ajmer Singh and got mutation No.3539 sanctioned in their favour and that the said Will deserves to be cancelled. The further allegations of the plaintiffs are that they were illegally and forcibly dispossessed by the defendants. Hence, they filed the present suit for possession on the basis of natural succession. The defendants filed written statement controverting the allegations made by the plaintiffs in the plaint. They have not contested that Ajmer Singh was owner and in possession of the suit land and he died unmarried and issueless on 14.8.1980 and that Ajmer Singh and Basakha Singh were real brothers and Ajmer Singh were residing with Basakha Singh. Rather, they alleged that Ajmer Singh was living with them. They alleged that Ajmer Singh executed a valid and registered Will on 31.5.1979 in favour of Dhanna Singh, Sukhdev Singh and Gurdev Singh voluntarily with sound and disposing mind. On the basis of the said Will, mutation was sanctioned in their favour. They pleaded that they are the nephews of Ajmer Singh and the testator had been residing with them and they performed the last rites of Ajmer Singh. The plaintiffs filed replication and denied the allegations and reiterated the pleadings made in the plaint. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiffs are the sole legal heirs of Ajmer Singh? if so, to what effect? OPP 2. Whether Ajmer Singh deceased executed a valid registered Will dated 31.5.1979 in favour of the defendants? if so its effect? OPD 3. Relief RSA No. 798 of 1983 3 The plaintiffs examined Labh Singh,PW2 and Gurcharan Singh himself appeared as P.W1 and have also produced and proved copies of mutation Nos. 8539 Ex.P1 and 8560 Ex.P3 and copy of jamabandi for the year 1978-79 Ex.P2 . The defendants have examined Bhura Singh DW2 and Sukhdev Singh and Gurdev Singh appeared as DW1 and DW3. They also produced and proved registered Will dated 31..5.1979 Ex.D1. The Ld.trial court after examining the evidence produced on record, decided issue No.1 against the plaintiffs on the ground that Basakha Singh was not the sole legal heir of Ajmer Singh, as in the pedigree table prepared on the back of mutation Ex.P1. Basakha Singh, Bhan Singh and Ajmer Singh were entered as three sons of Dewa Singh and a daughter Bhano. Dhanna Singh, Sarwan Singh and Sukhdev Singh were entered as sons of Bhan Singh. At the time of death of Ajmer Singh, Basakha Singh and defendants (sons of Bhan Singh) were alive. As regards Issue No.2, the ld.trial Court decided it in favour of the defendants and against the plaintiffs holding that the Will Ex.D1 is a natural and genuine document executed by Ajmer Singh who was of sound mind, even in his old age. The Will was duly registered by the Sub Registrar. The testator appended his thumb mark in the presence of Sub Registrar and that Gurcharan Singh PW1 and Labh Singh,PW2 have not been able to establish that the Will was executed under suspicious and unnatural circumstances. So, the ld.trial court dismissed the suit of the plaintiffs. The plaintiffs filed appeal before the Ld. Ist Appellate Court, which was accepted by it and judgment and decree of the ld.trial court were set aside. Aggrieved by the same, the defendants preferred this appeal,which was allowed by this Court vide order/judgment dated RSA No. 798 of 1983 4 13.9.2006. Against the said judgment, Jarnail Singh (since dead) through LRs and others went in appeal before the Hon'ble Apex Court. The Hon'ble Supreme Court allowed the appeal vide order dated 6.4.2009 and set aside the judgment dated 13.9.2006 and remitted the case back to this Court for fresh decision in accordance with law after formulating the substantial question of law. Learned counsel for the appellants has argued that the ld. First Appellate Court accepted the appeal and set aside the judgment and decree of the Ld. trial court only on the ground that Ajmer Singh testator of the Will was a drug addict; no explanation has been given in the Will for excluding Basakha Singh, who was the close relation i.e brother of Ajmer Singh. Further, no explanation has been forthcoming that Ajmer Singh would repose faith in Bhura Singh and Gurdev Singh and lastly that the Sub Registrar has not recorded endorsement in his own hand that the Will was read over and explained to Ajmer Singh-executant. Learned counsel has further argued that though it has come on record that Ajmer Singh was in the habit of taking opium but there is no evidence to defend that he was a regular opium taker and was under the influence of opium at the time of execution of the Will. The learned counsel has submitted that it is well proved from the statements of DW2 Bhura Singh,Lambardar and DW1 Sukhdev Singh that Ajmer Singh,testator and Basakha Singh were not in cordial terms. Ajmer Singh narrated to Bhura Singh DW2 the fact of making Will in favour of Dhanna Singh. This witness has also stated that sometimes Ajmer Singh takes opium. He further submitted that this witness who is the attesting witness of the Will has supported the execution of the Will. Gurdev Singh DW3 has categorically stated that Dhanna Singh was RSA No. 798 of 1983 5 not with Ajmer Singh when they reached the office of Sub Registrar. On the other hand, learned counsel for the respondents submitted that it is not disputed that Dewa Singh had three sons namely Bhan Singh, Ajmer Singh and Basakha Singh. First of all, Bhan Singh died . Ajmer Singh died on 14.8.1980 and at the time of his death, he was issueless. Basakha Singh, his younger brother died on 30.1.1980. Thus learned counsel has argued that the succession automatically opens to Basakha Singh. Learned counsel has further argued that mental capacity of Ajmer Singh, testator of the Will is the relevant consideration in proving the Will. He relied upon Bharpur Singh & Others v. Shamsher Singh 2009(1) RCR (Civil) 826 and submitted that from the overwhelming evidence on record, it is established that Ajmer Singh was not in sound disposing mind at the time of execution of the Will. Learned counsel argued that Dhanna Singh the beneficiary of the Will took active part in the execution of the Will, which is sufficient circumstance to make the Will a suspicious document as he was exposing the cause of his other two brothers also as they have joint mess with them. In support of his contention, he placed reliance on Nimbo & Ors. v. Satyavir Singh 1995(1) Civil Court Cases 224 (P&H). Learned counsel thus argued that no reason for exclusion of Basakha Singh has been stated in the Will. He has further submitted that mere registration of the Will does not mean that the Will is a genuine particularly when there is no endorsement on the Will that the Will was read over to the testator. In support of his contentions, he relied upon Gapal Charan Mohanty and another v. Smt. Adarmani Mohanty and others 1988 Civil Court Cases 317 (Orissa). Learned counsel thus argued that no reason for exclusion of Basakha Singh has been stated in the Will. He has further RSA No. 798 of 1983 6 submitted that mere registration of the Will does not mean that the Will is a genuine particularly when there is no endorsement on the Will which was read over to the testator. In support of his contentions, he relied upon Gurdial Kaur v. Kartar Kaur 1998(1) PLJ 686. Both the parties have asserted that Ajmer Singh had been residing with them and was being looked after by them. However, there is no evidence on record either in the shape of ration card, voter card or any other document on the basis of which this fact can be tested. In the absence of the same, the evidence led by the parties would guide this Court as to which of the parties used to look after Ajmer Singh, testator of the Will . From the statement of Sukdev Singh, it has come on record that Baskaha Singh was not having cordial relation with Ajmer Singh. Bhura Singh DW2, Lambardar of the village was the attesting witness and in his presence Ajmer Singh put his thumb mark on the Will. I have heard the learned counsel for the parties and perused the entire record with their able assistance. In the circumstances, the substantial question of law that emerges for consideration of this Court is “Whether the Ist Appellate court has misread and misinterpreted the evidence relating to the proof and execution of the registered Will”? In the instant case, admittedly the Will Ex.D1 is a registered one and had been presented before the Sub Registrar, Budhlada on the date it was executed and was found to be registered at serial No.8. Ajmer Singh and Gurdev Singh put their thumb marks and Bhura Singh, Lambardar had appended his signatures before the Sub Registrar, Budhlala. The endorsement Ex.D1/A is relevant in this regard. This Will had been scribed RSA No. 798 of 1983 7 by Megh Raj,petition writer who had died and could not be produced before the Court. Dhanna Singh, one of the propounders, though was present at the time of execution of the Will but his mere presence, cannot itself be taken alone as a factor, which will make the Will a suspicious document. It is pertinent to notice that Dhanna Singh is not the sole beneficiary under this Will and alongwith him Sukhdev Singh and Gurdev Singh had been benefitted. The genuineness of the Will cannot be doubted in this case,especially when it is a registered Will. The attesting witness examined before the Court had duly proved the Will. It is also established that Ajmer Singh, testator of the Will was of sound mind even though old. He had appended his thumb mark in the presence of Sub Registrar. All these admitted facts do not leave any space open for raising a finger to the genuineness of the Will. So the Ld. Trial Court had rightly held that Will is a natural and genuine document and was duly registered and signed by the Sub Registrar and that Ajmer Singh had executed a valid registered Will in favour of Dhanna Singh and others. As regards presence of one of the propounders,it will not amount to taking active and prominent part in the execution of the Will. Mere presence of the beneficiary at the time of execution of the Will will not affect the Will unless and until it is positively proved that he had influenced the volition of the testator or exerted any pressure or undue influence. There is a presumption of a registered Will being voluntary unless contrary is proved. It is a normal practice that whenever an illiterate villager go to a deed-writer, he will accompany a family member with him to check that he will be thumb marking the proposed written document, which he really intended to execute. Another fact came in evidence is that earlier the testator RSA No. 798 of 1983 8 intended to execute Power of Attorney and after consultation, he changed his mind and executed the Will in question. This shows the voluntary and free decision making of the testator. The General Power of Attorney comes into operation immediately on its execution and registration, by which the executant nominate his agent to exercise all powers on his behalf including transfer, sale, mortgage or exchange his land in favour of third person which acts of attorney holder are binding on the executant. But wisely, Ajmer Singh had not vested these powers to anybody, rather executed a Will which was to be effective after his death. The Will is a revocable document. So, the execution and registration of the Will is voluntary act of the testator which was without any undue influence, pressure or coercion and executed with sound disposing mind. So from the distinction between a General Power of Attorney and Will, he understood the nature and effect of disposition and preferred to execute the Will instead of a General Power of Attorney. It is not a suspicious circumstance. In this case, there are number of circumstances i.e. the Will is duly registered one, due execution of which has been proved on the record, testator thumb marked it with sound disposing mind understanding the nature and effect of disposition as explained to him (Ajmer Singh) by the Sub Registrar, so the assertion of the respondent that the beneficiary had participated in the execution of the Will, should not be termed as surrounded by suspicion. It was held in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead ) by LRs and others, AIR 1995 SC 1684 that “Deprivation of the natural heirs by the testator should not raise any suspicion because whole idea behind execution of Will is to interfere with the normal line of succession”. The exclusion of some natural heir is not a suspicious circumstances. RSA No. 798 of 1983 9 The findings of the Ld.Ist Appellate Court cannot be sustained and are set aside, as the same are misread and misinterpreted. However, the findings returned by the ld.trial court are restored. The present appeal is allowed and the suit of the plaintiffs is accordingly dismissed with no order as to costs. (JITENDRA CHAUHAN) JUDGE 16.3.2011 MS Note:Whether to be referred to Reporter?Yes/No.