R.S.A.No. 962 of 1997 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 17.8. 2009 R.S.A.No. 962 of 1997 Nachhattar Kaur and others ......Appellants Versus Amarjit Kaur and others .......Respondents R.S.A.No. 963 of 1997 Nachhattar Kaur and others ......Appellants Versus Amarjit Kaur and others .......Respondents R.S.A.No. 964 of 1997 Shanti and others ......Appellants Versus Amarjit Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Sandeep Mahajan, Sr. Advocate with Mr.J.B.Singh, Advocate, for the appellants. Mr.Arun Jain, Sr.Advocate with Mr.Amit Jain, Advocate for the respondents. **** R.S.A.No. 962 of 1997 2 SABINA, J. Vide this judgment, RSA Nos. 962 to 964 of 1997 would be disposed of as the civil suits, out of which the said appeals had arisen, were consolidated and were disposed of vide common judgment. Plaintiffs had filed suits for joint possession, which were dismissed by the Sub Judge II Class, Ambala City vide judgment and decree dated 28.7.1992. In appeals, the said judgment and decree were upheld by the Additional District Judge, Ambala vide judgment and decree dated 30.10.1996. Hence, the present appeals. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2to 6 of its judgment, are as under:- “2. Brief facts of the case giving rise to the filing of these three appeals are as follows. Shri Sarwan Singh son of Shri Sada Ram son of Shri Sant Ram was admittedly owner of land measuring 190 kanal 1 marla situated in village Kesri, Tehsil and District Ambala and as fully described in the head note of the plaint in which the three suits had been consolidated. He had breathed his last in the month of January 1980 leaving behind Smt. Shanti as his widow and four daughters namely Nachhattar Kaur, Ram Kaur, Harbel Kaur and Jarnail Kaur. The suit property was, however, being claimed by R.S.A.No. 962 of 1997 3 one Ram Singh, sister's son of Shri Sarwan Singh on the basis of a registered Will dated 8.7.1974 allegedly executed in his favour by Sarwan Singh. Said Shri Ram Singh had, therefore, filed civil suit No.182 dated 13.5.1980, later renumbered as 74 of 1985 for permanent injunction on the ground that he was owner in possession of the suit land on the basis of a registered Will dated 8.7.1974, but the defandants in that suit including Smt.Shanti, a widow of Sarwan Singh were threatening to interfere in his possession by force. 3. Said Ram Singh had pleaded that Sarwan Singh was his maternal uncle. He had no son. The plaintiff used to live with him at village Kesri. Sarwan Singh used to love him from the core of his heart. He was serving Sarwan Singh and cultivating the land for him. Pleased with the services and due to love and affection Sarwan Singh had executed a Will dated 8.7.1974 in his favour bequeathing all his land in his favour and made him as his legal heir. Said Ram Singh was later murdered allegedly by three husbands of three daughters namely Nachhattar Kaur, Ram Kaur and Harbel Kaur and so, Amarjit Kaur widow of Ram Singh, Manjit Kaur minor daughter of Ram Singh and Gurdial Singh-father of Ram Singh were impleaded as legal representatives of R.S.A.No. 962 of 1997 4 Ram Singh. Later four daughters of Sarwan Singh were also impleaded as defendants in the suit filed by Ram Singh. In the written statement filed by the defendants in that suit they had denied that Sarwan Singh had executed any Will in favour of Ram Singh. They had also denied that Ram Singh or his Lrs were in possession of the suit land. They had rather claimed that the suit land was in possession of Smt. Shanti who along with her daughters were natural heirs of Sarwan Singh. They had also claimed that the property in the hands of Sarwan Singh was ancestral and he was Jat governed by custom and so he could not will away his ancestral property. 4. Another suit was filed by three daughters of Sarwan Singh namely, Smt.Nachhattar Kaur, Ram Kaur and Harbel Kaur, hereinafter referred to as the plaintiffs, in 1981 claiming joint possession on 3/5th share of total suit land on the ground that they along with their mother Smt.Shanti and sister Jarnail Kaur were natural heirs to the property of Shri Sarwan Singh. They had further claimed that the suit property was in possession of Smt.Shanti, but she was not accepting their claim. They had further claimed that Ram Singh wanted a mutation of the suit land sanctioned in his R.S.A.No. 962 of 1997 5 favour on the basis of Will, but the said mutation was contested and was lying pending as a disputed mutation. Said Ram Singh had also died and Amarjit Kaur, Manjit Kaur and Gurdial Singh defendant- respondents, hereinafter referred to as defendants No. 1 to 3, were claiming themselves to be his legal heirs and were contesting the said mutation. The plaintiffs had further claimed that Shri Sarwan Singh had never actually executed any Will in favour of Ram Singh and so he or his legal heirs had no right, title or interest in the suit land, but they were not recognizing the rights of the plaintiffs and hence, this suit for joint possession of 3/5th shares in the suit land. The fourth daughter Jarnail Kaur had not joined them as plaintiff and so she was impleaded as defendant-respondent No.5, hereinafter referred to as defendant No.5. 5. Defendants No. 1 to 3 had contested the suit on the same grounds as were pleaded by them in the suit filed by Ram Singh on 12.5.1980 as already discussed above. Defendant No.5 had admitted the execution of Will in favour of Ram Singh to her knowledge, but claimed that if the said Will is not held to be valid, she had equal right inherit the suit property. Smt.Shanti defendant-respondent No.4 hereinafter R.S.A.No. 962 of 1997 6 referred to as defendant No.4 had not contested the suit filed by plaintiffs as she had not filed any written statement to the plaint of Nachhattar Kaur and others. 6. Smt.Shanti and her three daughters namely Nachhattar Kaur, Ram Kaur and Harbel Kaur had also filed a separate suit bearing suit No.63 dated 2.2.1984 later renumbered as 72 dated 24.4.1985 for permanent injunction against defendants No. 1 to 3 claiming that Smt.Shanti was in possession of the suit land as they along with Jarnail Kaur were owners in possession of the suit land being natural heirs of Sarwan Singh and defendants No. 1 to 3 were interfering in their possession. In this suit it was claimed that Khasra Girdawari had been wrongly sanctioned in favour of defendants No. 1 to 3 but in the appeal Collector, Ambala had set aside that order of Assistant Collector, IInd Grade, Ambala dated 11.3.1982, and sanctioned Girdawari in their favour through order dated 12.10.1983. The suit had also been contested by defendants No. 1 to 3 on the same grounds as were pleaded by them in their suit filed on 12.5.1980. Defendants No.1 to 3 had also claimed that in proceedings under Section 145 Cr.P.C. S.D.M. Ambala had held their possession and against order dated R.S.A.No. 962 of 1997 7 12.10.1983 passed by Special Collector they had filed an appeal which was still pending. They had also claimed that they had already filed a civil suit and Nachhattar Kaur and her two sisters had also filed a suit against them and so all these three should be decided together. The parties had also taken several other technical pleadings which would be reflected in the issues framed in the three cases. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled to 1/5th share each in the estate of Sh.Sarwan Singh deceased being his daughters? OPP 2. Whether Sarwan Singh-deceased appointed Ram Singh as his heir during his life time and further executed a valid Will dated 8.7.1974 in favour of Ram Singh? OPD 3. Whether the defendants No. 1 to 3 have filed a separate suit for permanent injunction regarding the same property against the plaintiffs if so to what effect? OPD 4. Whether Sarwan Singh was competent to execute the Will in favour of Ram Singh? OPD 5. R.S.A.No. 962 of 1997 8 5. Whether the defendants No. 1 and 2 are the legal representative of Ram Singh-deceased? OPP 6. Relief. ” The question that requires consideration is as to whether Sarwan Singh had executed a Will dated 8.7.1974 in favour of his nephew Ram Singh. On the other hand the plaintiffs have placed reliance on Will dated 29.6.1976 executed by Sarwan Singh in favour of Shanti and Ram Singh. Learned senior counsel for the appellants, during the course of arguments, has not placed reliance on the Will dated 29.6.1976. Learned senior counsel has vehemently argued that the Will dated 8.7.1974 was surrounded by suspicious circumstances as the executant had executed the same in favour of his nephew by excluding his real daughters. More so one of the daughters of the executant was un-married at the time of execution of the Will. Widow of the executant had only been given one room and Rs.1,000/- from each crop per year as her share in the suit property. The original Will was not available on record and hence, the Court has been denied the opportunity to examine the signatures etc. of the executant on the Will. Learned Senior counsel for the respondents, on the other hand, has submitted that the executant had executed the registered Will in favour of his nephew in the year 1974. The executant had died in the year 1980. By that time all the daughters of the executant R.S.A.No. 962 of 1997 9 were married. The executant had given sufficient reasons in the Will as to why he was depriving his daughters from the share in the suit property. Learned senior counsel has further submitted that after the death of Sarwan Singh, Ram Singh had been murdered by the husbands of the plaintiffs. After hearing learned senior counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. 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. 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 R.S.A.No. 962 of 1997 10 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. A perusal of the Will dated 8.7.1974 Ex.D-1 reveals that the executant had executed the same in favour of his nephew Ram Singh (son of his deceased sister Ajmer Kaur) as he was residing with the executant and was looking after the executant. Hence, the executant executed the Will in favour of his nephew by depriving his daughters as his three daughters were already married and the fourth daughter was aged about 15 years. Apparently, the executant felt that during his life time he would perform marriage of his fourth daughter also. Vide order dated 6.9.1983, application filed by the defendants for permission to prove the Will by way of secondary evidence was allowed subject to all just exceptions. The case of defendants No. 1 to 3 in the application for permission to lead secondary evidence to prove Will dated 8.7.1974 was that the Will in question was in R.S.A.No. 962 of 1997 11 possession of Shanti widow of Sarwan Singh. A perusal of the statement of Shanti dated 28.10.1982 reveals that she stated that she had no such Will in her possession. Since defendants were allowed to lead secondary evidence to prove the Will by the trial Court, there is no force in the contention raised by the learned senior counsel for the appellants that non production of the Will was fatal to the case of defendants No. 1 to 3. The Will in question is a registered document. The endorsement made by the Registrar that the Will had been read over to the executant and he had signed the same after admitting it to be correct has a presumption of truth. The plaintiffs had failed to rebut the said presumption. In order to prove the execution of the Will, defendants No. 1 to 3 examined DW-3 Janak Singh, Registry Clerk and DW-5 Harbans Singh, attesting witness. Both the said witnesses proved the execution of the Will as well as registration of the Will in question. Thus defendants No. 1 to 3 had been successful in proving due execution of the Will and the next question that requires consideration is as to whether propounder of the Will has been successful in dispelling any suspicious circumstances surrounding the Will. Will is deviation from natural succession. Merely because the daughters of the executant had been dis-inherited vide the Will in itself is no ground to hold that the Will in question was a suspicious document in the facts and circumstances of the present case. The R.S.A.No. 962 of 1997 12 executant has categorically deposed that the son of his deceased sister Ram Singh was residing with him and was looking after him. Sister of the executant i.e. Ram Singh's mother was already dead. Hence, it would natural for the executant to have executed the Will in favour of his nephew by excluding his daughters. Moreover, three daughters of the executant were already married and the executant was apparently satisfied that in case of his death, his nephew would perform the marriage of his un-married daughter. Although it has not been so specifically stated in the Will but it appears that the executant must have trusted his nephew to perform his moral duties after his death. Jarnail Kaur, one of the daughters of Sarwan Singh, admitted in her written statement that Sarwan Singh had executed the Will in favour of his nephew Ram Singh. Shanti, widow of Sarwan Singh and the plaintiffs placed reliance on Will dated 29.6.1976 executed in favour of Shanti and Ram Singh. A perusal of the said Will reveals that vide the same, the executant had revoked his earlier registered Will dated 8.7.1974 and had executed the new Will in favour of his wife regarding some land and in favour of Ram Singh regarding his remaining land. The execution of the said Will was not held to be proved by the Courts below and the said finding has not been challenged by the learned senior counsel for the appellants during the course of arguments. However, the fact remains that in the said Will set up by Shanti and the plaintiffs, the execution of the earlier Will was duly admitted. R.S.A.No. 962 of 1997 13 Keeping in view the totality of circumstances, it transpires that the Will dated 8.7.1974 had been duly executed by Sarwan Singh in favour of his nephew Ram Singh. Even in his later Will, which was set up by Shanti and the plaintiffs , Ram Singh had been given a share in his property by the executant, whereas, the daughters were denied any share in the property. In these circumstances, the Courts below had rightly dismissed the suits of the plaintiffs. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE August 17, 2009 anita