Regular Second Appeal No. 1548 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1548 of 2002 Date of Order: 10.07.2009 Raj Kumar and another ....Appellants Versus Lal Chand and another ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Avnish Mittal, Advocate for the appellants Mr. Pritam Saini, Advocate for the respondents. RAJIVE BHALLA, J (Oral). The appellants impugn the judgments and decrees dated 15.12.2001, and 17.1.2000, passed by the Additional District Judge, Patiala, and the Civil Judge (Junior Division), Rajpura. Lal Chand (Respondent no.1) and the appellants set up two separate wills dated 11.05.1988 and 04.09.1974 allegedly executed in their favour by Joti, deceased. The trial Court rejected both the wills whereas the first appelalte court has accepted the will propounded by Lal Chand. Lal Chand, plaintiff/respondent no.1 filed a suit for declaration that he and Saroj Bala are owners in joint possession of 1/4th share of the suit land on the basis of a will dated 11.05.1988 executed by their maternal grandfather, Joti deceased . It was pleaded that Lal Chand and Saroj Bala are the son and daughter of Smt. Shanti, the pre-deceased daughter of Joti. It was further pleaded that the defendant/appellants who are Joti's brother's sons have set up a forged and fabricated will dated 04.09.1974 registered on 10.09.1974. The defendant-appellants filed a written Regular Second Appeal No. 1548 of 2002 -2- statement and apart from raising various technical objections denied that Lal Chand and Saroj Bala are the son and daughter of Smt. Shanti or that Smt. Shanti was the daughter of Joti. They also set up a registered will dated 04.09.1974, registered on 10.09.1974 and alleged that Joti had bequeathed his entire estate to them. The appellants denied the execution of the will set up by the respondents as a fraudulent document. Saroj Bala who was arrayed as defendant no.4 filed a written statement admitting the claim of Lal Chand. On the basis of the pleadings, the trial court framed the following issues:- “1. Whether Joti has executed a registered will in favour of defendants?OPD 2. Whether Joti Ram executed Will dated 11.05.1988 in favour of the plaintiffs?OPP 3. Whether the suit is maintainable in this form?OPD 4. Whether the suit is false, frivolous and defendants are entitled to compensatory costs?OPD 5. Relief.” After considering the pleadings, the evidence adduced and the arguments addressed, the trial court rejected both the wills and, therefore, dismissed the suit. Aggrieved by the aforementioned judgment and decree, both parties filed separate appeals.The Additional District Judge, Patiala, accepted the appeal filed by Respondent No.1 Lal Chand, set aside the judgment and decree passed by the trial court and decreed the suit by upholding the validity of the will dated 11.05.1988, propounded by Lal Chand. The appeal filed by the appellants was dismissed by holding that Regular Second Appeal No. 1548 of 2002 -3- will dated 04.09.1974 is forged. Counsel for the appellants submits that the first appellate court has committed serious errors of law while accepting the appeal and upholding the validity of the will dated 11.05.1988. The onus to establish the execution of this will and to dispel any suspicious circumstance that may surround its execution lay upon Lal Chand propounder of the will dated 11.05.1988. Lal Chand has, however failed to discharge this onus. The First Appellate Court, has therefore, erred in upholding the validity of the will dated 11.05.1988. It is further argued that the fact that this will was executed three months before the demise of Joti is by itself sufficient to cast a doubt upon its execution. The respondents have failed to explain the non-registration of the will dated 11.05.1988 as the earlier will dated 04.09.1974 was registered. Another argument is that respondent no.1 has failed to prove that at the time of the execution of the will the testator was of sound disposing mind. It is further submitted that PW1 Prem Chand has admitted that Lal Chand, the beneficiary of the will dated 11.05.1988, was present during the execution of the will. The onus, therefore, to establish that the will was free from coercion or undue influence lay upon Lal Chand. It is further submitted that the trial court rejected the report and the deposition of the hand writing and finger print expert with respect to the thumb impressions allegedly affixed by Joti deceased. The trial court relied upon these circumstances to reject the will but the first appellate court has reversed the finding without cogent reasons. It is also asserted that while accepting the will propounded by respondent no.1, the first appellate court, has placed the onus to disprove the will, upon the appellants whereas as per the settled position in law the onus to establish the execution of a will and to dispel all or any suspicious circumstance lies upon the propounder of a will. In support of the aforementioned argument, counsel for the appellant places reliance upon Smt. Sushila Devi Vs. Regular Second Appeal No. 1548 of 2002 -4- Pandir Krishna Kumar Missir and others, AIR 1971, 2236 and H. Venkatachala Iyengar V. B.N. Thimmajamma and others, AIR 1959 SC 443. As regards the will dated 04.09.1974, propounded by the appellants, it is argued that the will has been proved by examining the attesting witnesses and as it is a registered document, executed fourteen years before the demise of the testator, the courts below should have upheld its execution and its validity . However, the will has been rejected on the sole ground that it contains a false recital that the testator did not have any issue. It is submitted that this recital is factually correct as on the date of the execution of this will the testator's only child Saroj Bala had already passed away. It is further submitted that during his cross-examination, Lal chand, the plaintiff, while deposing as PW7 admitted, that Shanti Devi passed away about 25/30 years ago. If his deposition recorded on 08.08.1986 is to be accepted as correct, Shanti Devi passed away before Joti executed the will dated 04.09.1974 thus establishing the correctness of the recital in the will that he is issueless. It is submitted that even otherwise a mere error cannot be the sole ground to reject a will, particularly where the execution and registration of the will have been proved in accordance with law. Counsel for the respondents, on the other hand, submits that the courts below have recorded concurrent findings of fact, rejecting the will dated 04.09.1974 propounded by the appellants. As these findings do not suffer from any error of law or give rise to a substantial question of law, the appeal should be dismissed. It is submitted that the Will dated 04.09.1974 was rejected on account of an error in the recitals of the will that falsifies the reason as scribed for the execution of the will. The premise for execution of the will dated 04.09.1974, as set out in its recitals, is that Joti is issueless and would therefore be looked after by the appellants. Regular Second Appeal No. 1548 of 2002 -5- However, as Shanti Devi was alive, though married, this recital is patently false and therefore, sufficient to reject the will. The alleged admission by Lal Chand is an approximate date of death and is, therefore, irrelevant. It is further argued that even if it is presumed that Shanti Devi had passed away, her grandchildren Lal Chand and Saroj Bala were alive,and being natural heirs to the estate of Joti, their names should have found mention in the will. Failure to refer to the names of the grandchildren, renders the will highly suspicious. It is further submitted that even if it is accepted that the will dated 04.09.1974 was executed by Joti, it must fail in view of his later will dated 11.05.1988. It is further argued that the appellants have proved the execution of the will by producing its scribe PW1, Prem Chand and an attesting witness PW3.These witnesses have deposed in unison that the will was scribed at the behest of the deceased who appended his thumb mark in their presence and they appended their thumb marks and signatures in the presence of the testator. It is argued that the suspicious circumstances referred to by counsel for the appellants are neither suspicious nor sufficient to discard the will. The mere fact that the will is unregistered is by itself insufficient to discard the will. The attesting witnesses have deposed that the testator was of sound disposing mind at the time of execution of the will. The mere presence of Lal Chand, without any pleadings or evidence alleging the exercise of undue influence or coercion is entirely irrelevant. The rejection of the report of the hand writing and finger print expert by the trial Court is entirely irrelevant as at no stage of the proceedings have the appellants alleged that these thumb impressions are forged. I have heard counsel for the parties, perused the impugned judgements, considered the arguments addressed, the questions of law framed and express my inability to accept the arguments raised by counsel Regular Second Appeal No. 1548 of 2002 -6- for the appellants. Counsel for the appellants has framed the following questions of law, stated to be a substantial questions of law:- “A) As to whether there is no presumption available with regard to execution of a Will in favour of a male son of a married daughter as has been raised by the First Appellate Court? B) As to whether there are any circumstances available on record to reject the registered will dated 04.09.1974 in favour of the defendant appellants. C) As to whether a registered will is not entitled to be over an unregistered will more so when the registered will had been executed by the testator 14 years prior to his death. D) As to whether the judgments of the learned courts below is not perverse being based upon misreading and non-reading of important evidence.” Before proceeding to deal with the questions so raised, it would be appropriate to reiterate that the proof of the execution of a will is, more often than not, a question of fact. Interference in judgments and decrees passed by the courts below is essentially confined to any substantial questions of law that may arise for consideration. The findings recorded by the courts below rejecting the will dated 04.09.1974 and accepting the will dated 11.05.1988 are findings of fact that do not suffer from any disability as would give rise to a substantial question of law. The questions numbered as (B) and (C) relate to the rejection of the will dated 04.09.1974, propounded by the appellants and question no. (A) relates to the will dated 11.05.1988 executed in favour of the respondents. It is true that minor factual discrepancies in the recitals of a Regular Second Appeal No. 1548 of 2002 -7- will are generally disregarded. Where however the error is fundamental to the reason recited for execution of a will, such an error would be significant and would require a satisfactory explanation from the propounder of the will. In the instant case, the will recites that the testator is executing the will as he is issueless. Both the trial court and the first appellate court have held that this recital is factually incorrect as the testator's daughter was alive on 04.09.1974. An attempt by counsel for the appellants, to assert that this finding is factually incorrect as Lal Chand has admitted that Shanti Devi died 25/30 years ago, cannot be accepted. The alleged admission would have aided the cause of the appellants had they established the date of death of Shanti Devi. There is another aspect that has been referred to by the first appellate court. Even if one were to accept that Shanti Devi was no more, on 04.09.1974, Lal Chand and Saroj Bala her children were alive. The absence of any reference to the testators daughter Shanti Devi or his grand children Lal Chand and Saroj Bala, who were preferential heirs to the estate of the testator gives rise to a grave and serious suspicion as to the legality and the execution of the will propounded by the appellants. The onus to satisfactorily explain these significant errors and omissions lay upon the appellants. However, no explanation has been offered and none is forthcoming. I have no hesitation in holding that this significant, factual error in the will dt 04.09.1974 is sufficient to hold that the will does not reflect the true will of the deceased. As regards the argument that preference has to be accorded to a registered will, suffice is to state that registration by itself does not validate a will. Where a will suffers from unexplained errors and suspicious circumstances its registration does not confer legitimacy. I am, therefore, unable to hold that the findings recorded by the courts below rejecting the will propounded by the appellants suffers from any error or raises any substantial question of law much less the questions framed. Regular Second Appeal No. 1548 of 2002 -8- The matter that now requires consideration is whether the first appellate court was right in holding that the respondents have succeeded in proving the execution of the will dated 11.05.1988 and dispelling any suspicious circumstances surrounding its execution. As held by the Hon'ble Supreme Court in Smt. Sushila Devi V. Pandir Krishna Kumar Missir and Others (supra) and H. Venkatachala Iyengar V. B.N. Thimmajamma and others (supra) , the onus to prove the execution of a will and to dispel all suspicious circumstances surrounding its execution lie upon the person who propounds a will In order to discharge the onus placed upon him, Lal Chand has examined the scribe and an attesting witness of the will. The scribe Prem Chand has deposed that he was summoned through Lal Chand and after receiving instructions from Joti, scribed the will. Similarly the attesting witness PW2 has deposed that Joti affixed his thumb impression in the presence of the attesting witness and he thereafter signed in the presence of Joti. No infirmity is discernible in their depositions as would raise a substantial question of law sufficient to hold that the depositions do not prove the execution of the will. These witnesses were subjected to searching cross examination but did not depart from their primary depositions and proved the execution of the will , by the testator. The submission by counsel for the appellants, that respondent no.1 has failed to establish that Joti was of a sound disposing mind is factually incorrect. PW1-Prem Chand and PW2-Ghanshyam Singh have deposed that at the time of the execution of the will the testator was of sound disposing mind. The argument that as the presence of Lal Chand, plaintiff is admitted,an inference should be drawn of undue influence or coercion,is entirely misplaced. The mere presence of a beneficiary in the absence of any allegation or material to infer undue influence or coercion, is by itself insufficient to reject a will. An argument advanced that for want Regular Second Appeal No. 1548 of 2002 -9- of registration, the will dated 11.05.1988, should be rejected, cannot be accepted. A will is not compulsorily registrable and, therefore,the mere fact that it was not registered, is insufficient to discard the will. The questions numbers (B) and (C) are therefore answered by holding that the courts below rightly rejected the will dated 04. 09.1974 and the first appellate court rightly accepted the will dated 11.05.1988. In view of what has been stated hereinabove, the questions of law framed by counsel for the appellants, which is in my considered opinion are mere questions of fact, do not arise for adjudication. As regards question No. (A) suffice is to state that it does not arise, as the plaintiff does not claim inheritance to the estate of Joti on the ground that he is a son of a married daughter. The fourth question of law can be answered by holding that the impugned judgment is neither perverse nor suffers from any misreading or non reading of relevant evidence. In view of what has been stated hereinabove, as no question of law much less a substantial question of law arises for consideration, the appeal is dismissed with no order as to costs. July 10, 2009 (RAJIVE BHALLA) nt JUDGE