RSA No.1077 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No.1077of 2007 (O&M) Date of decision: 13.05.2011 Jit Singh alias Ajit Singh and others .....Appellants Versus Shamsher Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.J.S.Brar, Advocate for the appellants. Mr.I.S.Brar, Advocate for respondent No.1 **** SABINA, J. Plaintiffs had filed a suit for declaration that they were owners in possession of half share of the suit land. The case of the plaintiffs, in brief, was that Nihal Singh was co-sharer qua the suit land to the extent of one half share. Nihal Singh had died issueless in the year 1986. Partap Kaur, wife of Nihal Singh had pre-deceased him. Plaintiffs were sons of Gopal Singh, brother of Nihal Singh,whereas, defendants No. 2 and 3 were sons of Kartar Singh and defendant No. 4 was daughter of Kartar Singh, brother of Nihal Singh. Defendants No. 5 to 9 were children of Kako, daughter of Gurdial Singh. Shamsher Singh, defendant No.1 was RSA No.1077 of 2007 (O&M) 2 son of Balwinder Singh-defendant No.2. During his life time, Nihal Singh had executed a registered Will dated 4.4.1968 in favour of his wife-Partap Kaur and brother Gopal Singh. Plaintiffs, being children of Gopal Singh, were entitled to succeed to the estate of their father which he had got from Nihal Singh. After the death of Nihal Singh, during the pendency of the mutation proceedings, defendant No.1 claimed a Will qua 34 kanals 13 marlas of land in his favour. Defendant No.2 set up a Will executed by Nihal Singh in his favour. In fact, Nihal Singh had not executed any Will in favour of defendants No. 1 and 2. Mutation No. 3866 was sanctioned on 27.7.1999 qua 34 kanals 13 marals of land in favour of defendant no.1 on the basis of Will dated 28.7.1983 and qua the remaining land in favour of all the natural heirs deceased- Nihal Singh. The said order of Assistant Collector First grade was illegal null and void. Plaintiffs were the only legal heirs of Nihal Singh in terms of the Will dated 4.4.1968. Defendant No.1, in his written statement, averred that Nihal Singh had executed a registered Will dated 28.7.1983 in his favour qua the land measuring 34 kanals 13 marlas. On the basis of the said Will, mutation had been sanctioned in his favour. No appeal had been filed against order dated 27.7.1999 passed by the Assistant Collector First Grade whereby mutation was sanctioned in favour of the answering defendants on the basis of Will dated 28.7.1983. Defendant No.2, in his written statement averred that the Will dated 4.4.1968 was a forged and fabricated document. The other contentions in the plaint were denied. The remaining defendants were proceeded ex-parte as they had failed to appear despite service. RSA No.1077 of 2007 (O&M) 3 On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiffs are owners in possession to the extent of ½ share of the land described in the head note of the plaint?OPP 2.Whether plaintiffs are entitled to relief of declaration prayed for?OPP 3.Whether the suit is within time?OPP 4.Whether the suit is not maintainable in the present form?OPD 5.Whether deceased Nihal Singh had executed a registered Will dated 28.7.1983 in favour of defendant no.1 in respect of 34 Kanals 13 Marlas of land ?OPD-1 6.Whether plaintiffs have no locus standi to file the present suit?OPD 7.Whether the plaintiffs have concealed material facts from the Court?If so its effect?OPD 8.Relief.” The Additional Civil Judge, (Senior Division) decreed the suit of the plaintiffs vide judgment and decree dated 3.10.2006. Aggrieved by the said judgment and decree, defendant No.1-Shamsher Singh preferred an appeal and defendants No. 2 to 5 and 7 to 9 preferred a separate appeal. The Additional District Judge, while disposing of the appeals, held as under:- “In view of above discussion, civil appeal no.112 of 1.11.2006 filed by Shamsher Singh is accepted and the judgment and decree under appeal are set aside and it is RSA No.1077 of 2007 (O&M) 4 held that Shamsher Singh, defendant no.1 is owner in joint possession to the extent of 34 Kanals 13 Marlas of land out of the suit land on the basis of will dated 28.7.83 Ex.D1 and whereas the plaintiffs are owners in joint possession to the extent of 3 shares and defendants no. 2 to 9 are owners in joint possession to the extent of 2 shares out of the remaining suit land i.e. Land excluding 34 Kanals 13 Marlas of land of which defendant No.1 is owner on the basis of said will Ex.D1. The consolidated civil appeal no. 117 of 8.11.2006 titled Balwinder Singh etc. vs. Jeet Singh etc. stands decided accordingly. In the circumstances of the present case, the parties are left to bear their own costs. Decree sheet be prepared. Copy of this judgment be placed on the file of consolidated civil appeal. Lower court record be sent back. File be consigned to the record room.” Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the learned First Appellate Court had erred in allowing the appeal filed by defendant No.1. The Will Exhibit D1 was not a genuine document. In fact, Nihal Singh had executed a Will in favour of Gopal Singh, father of the plaintiffs on 4.4.1968. Plaintiffs had become owners of the suit property qua the share of Nihal Singh. In support of his arguments, learned counsel has placed reliance on Tikkan Lal Baatta (died) through LRs. vs. Ashok Kumar and others 2005 AIR (Punjab) 145 wherein it was held that where the High Court finds that the reasons given by the Courts below upholding the Will in question are flimsy, that in fact, itself is a substantial question of law. RSA No.1077 of 2007 (O&M) 5 It was the duty of the High Court to see whether the reason given by the Courts below upholding the Will are sustainable or not. Learned counsel has next placed reliance on Girja Datt Singh vs. Gangotri Datt Singh 1995 AIR (SC) 346 wherein it was held that due attestation of the Will has to be proved by the propounder of the Will. Learned counsel has next placed reliance on S.R,Srinivasa vs. S. Padmavathamma 2010(4)RCR (Civil) 210. Para 25 of the judgment reads as under:- 25. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426, Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [(1977) 1 SCC 369 as follows: "1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2.Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least RSA No.1077 of 2007 (O&M) 6 has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken t o be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or RSA No.1077 of 2007 (O&M) 7 that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises 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 satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, RSA No.1077 of 2007 (O&M) 8 such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." Learned counsel has also placed reliance on Dalpat Singh etc vs. Rajwant Singh etc. AIR1954 Punjab 33 wherein it was held that there is no presumption of correctness attached to a copy of mutation as to the date of death of the last holder. Learned counsel for respondent No. 1, on the other hand,has submitted that the legatees of Will dated 4.4.1968 had predeceased the executant of the Will. Thereafter, Nihal Singh had executed the Will Exhibit D1 in favour of respondent No.1 qua 34 kanals 13 marlas of land. In the present case, Nihal Singh was admittedly the owner of the property in dispute. He executed a registered Will dated 4.4.1968 in favour of his wife Partap Kaur and brother Gopal Singh. Admittedly,Partap Kaur had predeceased Nihal Singh. As per Exhibit D2/D, mutation regarding inheritance of Nihal Singh, Gopal Singh had already died when the said mutation was sanctioned. There is nothing on record to the contrary. Section 105 Indian Succession Act reads as under:- "105. In what case legacy lapses.-(1) if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's RSA No.1077 of 2007 (O&M) 9 property, unless it appears by the Will that the testator intended that it should go to some other person. (2) In order to entitle the representatives of the legatee to receive the legacy, it must be proved that he survived the testator." Thus, as per the above provision,since both the legatees had predeceased the testators, Will dated 4.4.1968 was liable to be ignored as the same had lapsed. The next question that requires consideration is as to whether the Will Exhibit D1 had been duly proved to have been executed by the testator. Will is a sacred document and comes into operation after the death of the executant. Will speaks of the mind of the deceased after his death. In order to prove the due execution of the Will, the propounder of the Will is required to examine atleast one of the attesting witness to the will. As per Section 68 of the Indian Evidence Act, 1882, the propounder of the Will is further required to dispel suspicious circumstances, if any, surrounding the Will. Although registration of the Will is not compulsory but it goes a long way in proving the genuineness of the Will. In order to prove the due execution of the Will, defendant No.1 examined DW2 Major Singh, one of the attesting witnesses to the Will. The said witness deposed that he had seen the original Will dated 28.7.1983. The same had been executed by Nihal Singh qua 34 kanals 13 marlas of land in favour of Shamsher Singh. The Will was scribed by Radhey Sham at the instance of Nihal Singh. Thereafter, it was read over to Nihal Singh and he thumb marked the RSA No.1077 of 2007 (O&M) 10 same after admitting its contents to be correct. The said witness along with Randhir Singh had attested the Will. Thereafter, the Will was presented for registration before the Sub Registrar. PW1 Radhey Sham, Scribe has deposed that he had scribed the Will at the instance of Nihal Singh and had,thereafter, read the same to the executant. The executant after admitting the contents to be correct had thumb marked the same. Major Singh and Randhir Singh had attested the same in the presence of Nihal Singh. Thus, defendant No.1 had been successful in proving the due execution of the Will Exhibit D1. As per endorsement on the Will made by the Sub Registrar, the Will was read over to the executant and he had admitted the contents to be correct. The said endorsement has a presumption of truth. There is nothing on record to suggest that the said endorsement had not been correctly made. Although in the Will, Exhibit D1, no mention has been made qua the earlier Will, executed by the testators but since the Will dated 4.4.68 had lapsed, in the facts and circumstances of the case, the fact that the Will Exhibit D2 was not mentioned in the Exhibit D1 does not render the Will Exhibit D1 a suspicious document. Nihal Singh had executed the Will in favour of defendant No.1 who is the grand son of brother of the executant. The executant had mentioned in the Will that he was happy with the services rendered to him by Shamsher Singh and,therefore, defendant No.2 would inherit 34 kanals 13 marlas of land out of his property after his death. Nihal Singh was not having any child of his own and his wife had predeceased him. In these circumstances, he could have executed the Will in favour of any person. Moreover, defendant No.2 cannot be described as a RSA No.1077 of 2007 (O&M) 11 stranger to Nihal Singh. Nihal Singh had remained alive for three years after the execution of the Will and had not bothered to revoke the same. There is nothing on record to suggest that the Will in question was not thumb marked by Nihal Singh. In these circumstances, the learned First Appellate Court had rightly held that the Will Exhibit D1 was a genuine document. The judgments relied upon by the learned counsel for the appellants fail to advance the case of the appellants as they are not applicable to the facts of the present case. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge May 13, 2011 arya