IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.835 of 2010 Date of decision: 26.7.2010 Sukhdeep Singh Bajwa and another -----Appellants Vs. General Public and others ----Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE RAJESH BINDAL Present:- Mr. S.N.Chopra, Advocate for the appellants. Adarsh Kumar Goel,J. 1. This order will dispose of LPA Nos.835 and 836 of 2010 as both the appeals arise from common judgment of learned Single Judge. 2. Respondent No.2 was original applicant in Probate case No.5 of 1994, while the appellant was original applicant in Probate Case No.3 of 2001. In Probate Case No.5 of 1994, Will dated 1.6.1981 executed by Gurnam Kaur (hereinafter referred to as the Ist Will) has been set up, while in Probate Case NO.3 of 2001, Will dated 14.4.1989 executed by Gurnam Kaur (hereinafter referred to as the Second Will) has been set up. Learned Single Judge accepted the first Will to be genuine and granted probate. The second Will was held not to be genuine and pobate was declined. Hence these two appeals. 3. Pedigree table of the parties to the extent relevant is as under:- LPA No.835 of 2010 Gurdial Singh (died in 1963) Gurnam Kaur, widow (died on 27.6.1990) Maj. Gen.Kuldip Singh Amarjit Singh Jaswant Singh Kuljit Kaur, daughter (sons of the testatrix and Gurwant Kaur,daughter beneficiaries of first will to the extent of 1/3rd) Ratinder Kaur daughter Amandeep Singh Sukhdeep Singh Kanwaljit Singh Son Son Son (beneficiaries of second Will) 4. Case of the applicant in Probate Case No.5 of 1994 is that Smt.Gurnam Kaur executed Will dated 1.6.1981 Ex.P1 which was registered in the office of the Sub Registrar, Chandigarh on 1.7.1981. The Will was attested by attesting witnesses, PW6 Haredev Singh Jattana and PW8 Balwinder Singh. The Will was executed by the testatrix voluntarily and in sound disposing mind. The same was left in the custody of the applicant and was got duly registered. As against this, stand of the applicants in the second Will is that Will dated 1.6.1981 was false and second will was genuine. The second Will was contested by the applicant in Probate Case No.5 of 1994 by submitting that the deceased was normally living with the said applicant. She had made complaint against Amarjit Singh, father of the beneficiaries of the second Will. The second Will was unnatural. The daughters of the deceased supported the stand in Probate Case No.5 of 1994. 5. Following issues were framed:- 2 LPA No.835 of 2010 1. Whether deceased, Gurnam Kaur, executed valid will dated 1.6.1981 in favour of petitioner and respondents No.2 and 10? OPP 2. Whether Gurnam Kaur executed valid will dated 14.4.1989? OPR 11 to 13 3. If issue No.2 is proved, whether petitioner is entitled to the grant of probate? OPP 4. Whether the property has been correctly valued and described in the petition? OPP 5. Whether the petition is not maintainable as alleged by respondents No.11 to 13? OPR 11 to 13 6. Learned Single Judge held the First will to be proved on the basis of evidence of PW6 Hardev Singh Jattana who was attesting witness as also statement of PW8 Balwinder Singh who was another attesting witness. Further, reliance was placed on testimony of PW7 Maj. Gen.Kuldip Singh, applicant in Probate Case No.5 of 1994 and PW9 Gurwant Kaur, daughter of the testatrix. Evidence of RW12 Amarjeet Singh Bajwa, father of beneficiaries of second will and the applicants of Probate Case No.3 of 2001 was found to be untrustworthy. 7. Relevant findings recorded by learned Single Judge are reproduced below:- “In my opinion, the will dated 1.6.1991 stands proved while the will dated 14.4.1989 is shrouded in suspicious circumstances. Apart from the evidence of the attesting witnesses, the most important witness is Gurwant Kaur. It must be remembered that originally she was one of the plaintiffs in a suit challenging the will of the late father o the parties in favour of his wife and sons. This witness is not proved to have any animus with any of her brothers. She has deposed in categoric terms that her mother had told her that she had executed the will in June 1981 in favour of 3 LPA No.835 of 2010 her three sons. The other discrepancies pointed out with regard to the execution of will are in my opinion, too minor to be given any importance.The fact that the word ‘Advocate’ was typed or that the names of the witnesses and the dates were written by hand would not detract from the unshaken testimony of PW9 Smt. Gurwant Kaur and the attesting witnesses. The court cannot lose sight of the fact that the sisters had challenged the will in favour of three brothers and the mother which had been defended by all of them. Thus, it is not at all unnatural for the mother to have perpetuated the desire of her husband and bequeathed the property inherited from him in favour of three sons to the exclusion of the daughters. It cannot also be forgotten that the testatrix was borne at the turn of the century and had been brought up in milieu where daughters were not supposed to inherit from their fathers. Thus, the execution of the will dated 1.6.1981 apart from having been satisfactory proved, also corresponds to the normal course of the conduct which can be held to have appealed to the testatrix. As regards the infirmities alleged to have vitiated the registration process, learned counsel for the objector ahs argued that as per the statements of PW6 and P.7 the witnesses of the testatrix immediately went to the registration office after the execution of the Will. However, in para 1 of the petition, it ahs been mentioned as follows:- ‘The testatrix passed away on June 27, 1990 at General Hospital Sector 16 Chandigarh having executed her last and only will and testament in the English language and character of Ist June, 1981 registered with the Estate Office, Chandigarh on Ist July, 1981’ It is further argued that the statement of the petitioner in mutation proceedings (Ex.R4) reveals that he had admitted that endorsements were typed at his house. Learned counsel for the objector has also drawn my 4 LPA No.835 of 2010 attention to ex.RW12/6 which shows that the words ‘drafted by me’ and ‘advocate’ do not appear in the certified copies. In my opinion, these discrepancies can be explained by the long lapse of time between the execution/registration of the will and the date/s of the statement, mutation proceedings as well as the drafting of the petition. Xx xx xxx xxx As regards the will dated 14.4.1989 the first suspicious circumstance is the harsh language used against the two sons when even respondent No.2 had admitted that after 1980, she used to stay with all the brothers even though the case of the other brothers and the sisters is that after 1980 she never stayed with respondent No.2. Once it is accepted that Smt.Gurnam Kaur used to stay with her two elder sons also, it would be very hard to reconcile the following sentences:- ‘They filed suits against me used to give threats to kill me and gave many types of notices to me…. One day he came to Qadian alongwith armed military personnel and he tried to kill me….’ The second suspicious circumstance is the appearance of 88 years old Gurnam Kuar at Gurdaspur 14.4.1989. Nothing ahs been explained as to how she reached Gurdaspur at that ripe old age, whether she was escorted and where she went after the execution of the will. Third, respondent No.2 who was admittedly posted close to Gurdaspur at that time and would have been the natural person with whom the testatrix would be staying at that time, strangely shows ignorance about her movements or whereabouts on that fateful day. Fourth, had a will been executed in favour of his sons, there was no question that he would apply to be substituted as a legal representative of Gurnam Kaur in the litigation pending at the time of her 5 LPA No.835 of 2010 death without disclosing the fact that in fact his sons were her legal representatives. Apart from the evidence which has been led in this case, this court is also bound to take notice of the record of mutation No.2258 which was sanctioned in respect of the impugned will by the revenue authorities. Though the probate court is not bound by the judgments of revenue authorities in mutation proceedings yet it cannot be gainsaid that those proceedings are not wholly irrelevant. In those proceedings also, parties led evidence and after consideration thereof a judicious order was passed. I have gone through the evidence led in that case as well as the finding of the revenue authorities. It would be seen that the revenue courts also considered the same circumstances and have independently arrived at similar conclusions. One salient factor which weighed with the revenue court was that the fact that respondent No.2 had appeared in the mutation proceedings on 8.2.1991 yet at that stage he did not take any plea that the mutation should not be sanctioned on the basis of will dated 1.6.1981 because there was a subsequent will in favour of his sons and the subsequent will was pleaded by the beneficiaries only on 25.5.1992. On a conspectus of all the facts and law discussed above it is held that the will dated 1.6.1981 is proved to have been validly executed by the testatrix and the will dated 14.4.1989 is discarded being surrounded by suspicious circumstances. Consequently Probate Case No.5 of 1994 is allowed and Probate case No.3 of 2001 is dismissed with no order as to costs.” 8. We have heard leaned counsel for the appellants and perused the record. 9. Contentions raised on behalf of the appellants are:- i) Registration of Will was against mandatory requirements of Section 52(1)(c) added by Punjab Act No. 19 of 1961. 6 LPA No.835 of 2010 ii) Date in the Will is hand written while the rest of the Will is type written and similarly names of witnesses were hand written though words “witness No.1 and witness No.2” are type written. Name of the advocate who drafted the Will is not mentioned though in the type written copy, words “drafted by me and advocate” are mentioned. Scribe of the Will was not known. These constitute suspicious circumstances. iii) Beneficiary of the Will took prominent part in the execution of Will. Will was collected after registration by the beneficiary and not by the testatrix. iv) PW8 Balwinder Singh, attesting witness was examined in rebuttal and not in the affirmative evidence. 10. We are unable to find any substance in the submissions. 11. Due execution of Will has been proved by the testimony of attesting witness PW6 Hardev Singh Jatana. PW7 Maj. Gen Kuldip Singh Bajwa , who is no doubt one of the beneficiaries being one of the three sons of the testatrix has explained all the circumstances which may be necessary to remove the alleged suspicion. To the same extent is the testimony of PW9 Gurwant Kaur who is daughter of the testatrix. No doubt, PW8 Balwinder Singh, another attesting witness was not examined at the time of evidence in the affirmative and was examined in rebuttal, the objection to that effect was overruled. It was held that his evidence in rebuttal was justified to rebut evidence of Navdeep Gupta, handwriting expert. Order passed while recording the statement of the said witness is as under: “(At the first instance, counsel for the respondents has raided the objection to the examination of witness on the ground that the witness should have examined in affirmative as he is a witness to the will dated 1.6.1981 and he cannot be examined to disprove the will in question 7 LPA No.835 of 2010 dated 14.4.1989 in rebuttal as he has nothing to do with the will dated 14.4.1989. Heard. The respondents while leading the evidence before me had examined Sh.Navdeep Gupta, Handwriting and Finger Prints Expert in order to falsify the will dated 1.6.1981. He compared the will dated 1.6.1981 over which there are signatures of Balwinder Singh with the declaration dated 10.8.1994 purported to have been given by Balwinder Singh already on the file and he opined that the signatures on the will Ex.P4 and the declaration Mark C are not of the same person. As such the petitioners in order to rebut this fact were well justified in examining Balwinder Singh in rebuttal. Accordingly, the objection is overruled.” 12. As regards procedure for registration, learned Single Judge rightly observed that the said procedure could not, in any manner, affect the validity of the Will. The suspicious circumstances pointed out by learned counsel for the appellant do not create any doubt about the genuineness of the Will, as rightly held by learned Single Judge as follows: “Thus it logically follows that if merely by proving registration, execution is not proved, it cannot be also said that merely by pointing out infirmities in the registration process it must be held that the execution was not proved. A perusal of the judgment of the Hon’ble Supreme Court extracted above, clearly shows that execution of will and registration are two independent acts. In all cases, it is necessary to prove execution of a will and proof of registration is merely corroborative.” Learned Single Judge referred to the judgments of the Hon’ble Supreme Court relating to the proof of the Wills in H.Venkatachala Iyengar v. B.N.Thimmajamma and others, AIR 1959 SC 443, Smt.Jaswant Kaur v. 8 LPA No.835 of 2010 Smt.Amrit Kaur and others, (1977) 1 SCC 369, and Madhukar D.Shende v. Tarabaiaba Shedage, (2002) 2 SCC 85. 13. Due execution of Will having been proved and the same being natural Will, circumstances pointed out by learned counsel for the appellant as ‘suspicious’ do not vitiate the Will. There was no bar to date or name of witness being written in hand on otherwise typed Will. Similarly, mention of Advocate having drafted Will did not create any suspicion. Beneficiaries are all the sons. Merely because one of the sons collected will from registration office did not create any suspicion in the circumstances. Examination of PW8 in rebuttal has already been explained. 14. In view of above, we do not find any reason to interfere with the view taken by learned Single Judge. 15. The appeals are dismissed. (Adarsh Kumar Goel) Judge July 26, 2010 (Rajesh Bindal) ‘gs’ Judge 9