Regular Second Appeal No.704 of 1996 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Date of Decision: August 07, 2009 R.S.A. No. 704 of 1996 Sewa Singh and others ...........Appellants Versus Smt. Harbans Kaur and another ..........Respondents R.S.A. No. 705 of 1996 Sewa Singh and others ...........Appellants Versus Smt. Harbans Kaur and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mrs.Lisa Gill,Advocate for the appellants. Mr.J.S.Virk, Advocate for the respondents. ** Sabina, J. This order shall dispose of Regular Second Appeal Nos. 704 and 705 of 1996 as they have arisen out of a common judgment. Sewa Singh filed a suit for declaration against Harbans Kaur and Satnam Singh. Harbans Kaur filed a suit for possession of the suit land and a house owned by Anokh Singh and also for recovery of Rs.16690.46. Regular Second Appeal No.704 of 1996 2 Sewa Singh has filed a suit for declaration that he is in possession of the suit property. Both the suits were consolidated and were disposed of vide one judgment by the Courts below. The suit of the plaintiff Sewa Singh was partly allowed restraining the defendant from interfering with the possession of the plaintiff and suit of plaintiff Harbans Kaur was decreed for possession of entire property as fully described in the head note of the plaint and also for recovery of Rs.16690.46 with future interest at the rate of 6% per annum by the Sub Judge First Class, Patiala on 10.5.1993. Appeals filed against the said order were dismissed vide judgment and decree dated 6.2.1996 by the Additional District Judge, Patiala. Hence, the present appeals. The case of the parties, as noticed by the learned Additional District Judge in paras 2 and 3 of its judgment, reads as under:- “ 2. The facts of both the cases are identical because in both the cases the crux of the issue is about the execution of the Will by Anokh Singh on 15.8.76, in favour of plaintiff Sewa Singh. According to Sewa Singh, in his suit said Anokh Singh son of Bal Singh son of Basawa Singh was owner of 25 bighas 11 biswas of land and that he was his real brother. He served the deceased and they lived together in the same house, whereas defendant Harbans Kaur resided at village Dachar permanently. The last rites of the deceased were performed by the plaintiff and his ashes were submerged by him at Kiratpur. He is in possession of the suit land after the death of Anokh Singh as owner and that defendants want to dispossess him forcibly. It is also the case of Sewa Singh, in defence to the suit filed by Harbans Kaur that he is the owner Regular Second Appeal No.704 of 1996 3 and in possession of the house and land in his own right which he got under a valid Will dated 15.1.76. Satnam Singh as attorney of Harbans Kaur entered into a compromise on 23.12.85 to set at rest the controversy between the parties. 3. The defendant-Harbans Kaur, resisted the suit of the plaintiff on the ground that Anokh Singh did not execute any will on 15.8.1976 in favour of Sewa Singh. The alleged will is false forged and fabricated document and it does not bear the thumb impression of deceased Anokh Singh. She is the absolute owner of the suit land and the house being daughter of Anok Singh. However, it is admitted that Sewa Singh is in unlawful possession of the suit land and that suit land was owned by Anokh Singh and that Sewa Singh is his real brother. In her own suit Harbans Kaur has claimed possession of the agricultural land measuring 25 bighas 11 biswas, possession of house in dispute and recovery of Rs.16690.46 on account of use and occupation/mesne profits for the period from Hari 1983 to Sauni 1985.” On the pleadings of the parties, the following issues were framed :- “1. Whether the Anok Singh executed a valid will on 15.8.76 in favour of the plaintiff ?OPP 2. Whether the plaintiff is owner of the suit property ?OPP 3. Whether the plaintiff is entitled to the injunction prayed for ? OPP 4. Whether the suit is barred as has been alleged in the written statement?OPD Regular Second Appeal No.704 of 1996 4 5. Whether the suit is not maintainable ?OPD 6. Whether the suit is within time?OPP 7. Whether the plaintiff has no cause of action and locus standi to file the suit?OPD 8. Relief.” Issues framed in case Harbans Kaur Vs. Sewa Singh 1.Whether the plaintiff is the owner of the suit property?OPP 2.Whether the plaintiff is entitled to the possession to the suit property?OPP 3. Whether the plaintiff is entitled to recover Rs.16690.40P as alleged in the plaint?OPP 4. Whether Anokh Singh deceased executed any valid will in favour of the defendant?OPD 5. Whether Satnam Singh entered into compromise dated 23.12.95 with the plaintiff as attorney of the plaintiff, if so its effect?OPD 6. Whether the suit is liable to be stayed U/Order 10 CPC?OPD 7. Whether the suit is not maintainable?OPD 8.Whether the plaintiff has no locus-standi to file the present suit?OPD 9. Relief”. Learned counsel for the appellants has submitted that the Will in question was liable to be believed as it had been duly proved by the appellants by examining attesting witnesses. It was also established on record that the executant was in a sound disposing mind at the time of execution of Will. Although the Will in question was not a registered document but Will is not compulsorily required to be registered. Appellant Regular Second Appeal No.704 of 1996 5 was taking care of his brother Anokh Singh and, hence, he had executed the Will in favour of the appellant. Merely because executant has ignored his daughter while executing the Will did not make the Will a suspicious document. In support of her arguments, learned counsel for the appellants has placed reliance on Dalip Singh and another vs. Pritam Kaur 1990(1)276 wherein it was held that a Will in favour of nephews to the exclusion of only daughter who had been married long ago did not make the Will a suspicious document. Learned counsel for the appellants has next place reliance on Savithri and others vs. Karthyayani Amma and others (2007) 11 Supreme Court Cases 621 wherein it was held that the fact that the natural heirs had been excluded or a lesser share had been given to them by itself without any thing more could not be held to be a suspicious circumstance. The testator had lived for seven years after execution of the Will and did not cancel it. It showed that the Will is a valid one. Learned counsel for the appellant has next placed reliance on Vidya Wanti and another vs. Durga Dass (2008) 7 Supreme Court Cases 216 wherein it was held that an unregistered Will executed by an executant in favour of his brother disinheriting his wife and daughter in the facts of the case could not be said to be surrounded by suspicious circumstances. The scibe and marginal witnesses had conclusively proved the Will. Learned counsel for the respondent, on the other hand, has argued that the Courts below had rightly held that the Will in question was result of fraud. The daughter of the executant was a widow and had stayed with the executant to enable her son to complete his studies upto 10th class. There was nothing on record to suggest that the relations between the Regular Second Appeal No.704 of 1996 6 executant and his daughter were not cordial. 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 witness and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. 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. Coming to the facts of the present case, admittedly, Harbans Regular Second Appeal No.704 of 1996 7 Kaur is daughter of Anokh Singh. Anokh Singh had allegedly executed the unregistered Will in favour of his brother who disinherited his widowed daughter on the ground that he had already spent enough at the time of her marriage. Although in technical sense, execution of the Will was proved by the propounder by examining the attesting witnesses Piara Singh, Jagat Singh and Rajinder Kumar yet the Will does not appear to be a genuine Will and fails to satisfy the test of judicial conscience. A perusal of the Will reveals that the date on the Will has been written with a different ink. It is an unregistered Will. Although registration of the Will is not compulsory yet it goes a long way in establishing the genuineness of the Will. Hence, the fact that the date on the Will is written with a different ink makes the Will a suspicious document. Further there is no material on record to suggest that the executant was not having cordial relations with his daughter. Rather, the witness examined by the propounder Harbans Kaur, on the other hand, has deposed that she had cordial relations with his father and after the death of her husband, she was brought by her parents to their house. Her Son- Satnam Singh was 1½ years old at that time. Her father had incurred expenses on the education of her son. In these circumstance, disinheritance of Harbans Kaur by the executant gains significance and makes the Will a suspicious document. In normal circumstances, a father may not make the Will in favour of his daughter who is married since long. However, in the present case, the executant had only one daughter and she had become widow after couple of years of her marriage. In such a situation, in normal circumstances, the father would have given his property to his daughter and not to anybody else. In the present case, the executant was an old man and Regular Second Appeal No.704 of 1996 8 has died soon after the execution of the Will. This also renders the Will, which is an unregistered one, a suspicious document. In view of the fatual matrix of the case, the Courts below had rightly held that the Will in question was a suspicious document. The judgments relied upon by the learned counsel for the appellants fail to advance the case of the appellants as they are based on different facts. No substantial question of law warranting interference arises in this regular second appeal. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 07, 2009 arya