R.S.A.No. 1630 of 1997(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1630 of 1997(O&M) Date of decision: 10.5.2011 Gurdeep Kaur ......Appellant Versus Kulwinder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Ms.Ravinder Kaur, Advocate, for the appellant. Mr.Sudeep Mahajan, Advocate for respondents **** SABINA, J. The plaintiff had filed a suit for declaration that she was owner in joint possession of the suit land to the extent of half share. The case of the plaintiff, in brief, was that the suit land measuring 203 kanals 6 marlas was jointly owned and possessed by Thakar Singh and Narinjan Singh in equal shares. Thakar Singh had died on 12.5.1986. The plaintiff being widow of Thakar Singh had inherited half share out of the suit property belonging to Thakar Singh. Defendants No.1 and 2 had got a mutation sanctioned in their R.S.A.No. 1630 of 1997(O&M) 2 favour qua inheritance of Thakar Singh. The said mutation was illegal and was not binding on the rights of the plaintiff. Defendants No.1 and 2, in their written statement, averred that Thakar Singh had died on 12.5.1986. It was denied that the plaintiff was the `widow of Thakar Singh. It was averred that the plaintiff had got married with Thakar Singh but had left his company as relations between them had become strained. Thereafter, the plaintiff had got married with someone else. Thakar Singh had executed a registered Will in favour of the answering defendants on 16.9.1983. Defendant No.4-bank, in its written statement, averred that Narinjan Singh-defendant No.3 had mortgaged the suit land with the bank for purchase of a tractor on 9.9.1983 vide registered mortgage deed. The bank had every right to realise its debt as per law. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Gurdip Kaur plaintiff is the widow of Thakar Singh deceased, if so, its effect? OPP. 2. Whether plaintiff is owner in joint possession of ½ share of the disputed land ? OPP 3. Whether on 16.9.83 Thakar Singh deceased executed a valid Will in favour of defendant Nos. 1 to 3 ? OPD 4.Whether plaintiff being widow of Thakar Singh deceased is entitled to ½ share in the disputed property? OPP 5. Whether plaintiff is entitled to the declaration prayed R.S.A.No. 1630 of 1997(O&M) 3 for? OPP 6. Whether plaintiff has no locus standi to file the suit ? OPD 7. Relief.” The Sub Judge, Ist Class, vide judgment and decree dated 21.1.1994 decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendants No.1 to 3 preferred an appeal and the same was allowed by the Additional District Judge vide judgment and decree dated 13.2.1997. Consequently, the suit of the plaintiff was dismissed. Hence, the present appeal by the plaintiff. Learned counsel for the appellant has submitted that the Will Ex.D-1 was not a genuine document as no mention had been made in the Will qua the plaintiff. The plaintiff was wife of the executant and in normal circumstances, the executant would have made some provision for his wife in the Will. In support of her arguments, learned counsel has placed reliance on Kalyan Singh vs. Smt. Chhoti and others AIR 1990 SC 396, wherein it was held as under:- “The Will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife seems to be un-natural. It casts a serious doubt on genuineness of the Will.” Learned counsel for the respondents, on the other hand, has submitted that the executant had died issueless and in these circumstances, it was natural for him to have executed the Will in favour of his nephews. The suit land was agricultural land and it is the normal tendency of the agriculturist to execute the Will in favour R.S.A.No. 1630 of 1997(O&M) 4 of the male heirs. In support of his arguments, learned counsel has placed reliance on Savithri and others vs. Karthyayani Amma and others 2007 (4) CCC 801 , wherein it was held as under:- “12. Submission of the learned counsel that if both Krishnan Nair and Sankaran Nair were to bequeath their entire right, title and interest in the properties in favour of the respondents herein, by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. It must also be borne in mind that the parties are governed by Marumakkattayam School of Hindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court R.S.A.No. 1630 of 1997(O&M) 5 may take into consideration for the purpose of upholding the same. The question as to whether the Register was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which requires serious consideration. But we may notice that the witness examined on behalf of the respondents, Raveendran (DW-2), categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house of Krishnan Nair, but according to DW-2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also. 19. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves R.S.A.No. 1630 of 1997(O&M) 6 dismissal. Will is a solemn document. It speaks of the mind of the executant after his death. In order to prove the due execution of the Will, the propounder of the Will is required to examine at least one of the attesting witnesses to the Will in compliance with Section 68 of the Indian Evidence Act, 1872. The propounder of the Will is further required to dispel any suspicious circumstances surrounding the Will. Registration of Will is not compulsory but it goes a long way in establishing the genuineness of the Will. In the present case, the property in question was owned by deceased Thakar Singh. Plaintiff Gurdip Kaur is the widow of Thakar Singh, whereas, defendants No.1 and 2 are the nephews of Thakar Singh. Property measuring 203 kanals 6 marlas was jointly owned by Thakar Singh and Narinjan Singh-defendant No.3 in equal shares. Thakar Singh, admittedly, died on 12.5.1986. The case of the plaintiff is that she being the wife of deceased Thakar Singh was to inherit his half share out of the suit property, whereas, the case of the defendants is that Thakar Singh had executed a registered Will in favour of defendants No.1 and 2, Ex.D-1 on 16.9.1983. The Will Ex.D-1 is a registered document. In order to prove the due execution of the Will, the defendants examined Gurdip Singh, deed writer as DW-1, Puran Singh as DW-2 and Swaran Singh as DW-3, attesting witnesses to the said Will. The said witnesses have deposed qua due execution of the Will by deceased Thakar Singh in favour of defendants No.1 and 2. As per endorsement on the Will Ex.D-1, the contents of the same were read over by the Sub Registrar to the executant at the time of registration. R.S.A.No. 1630 of 1997(O&M) 7 The said endorsement has a presumption of truth. There is nothing on record to rebut the said presumption. As per Ex.D-1, the executant was issueless and had executed the Will in favour of his nephews, Kulwinder Singh and Kashmir Singh, qua his property. Although in the said Will, no reference has been made to plaintiff Gurdip Singh but that in itself is not sufficient to hold that the Will was surrounded by suspicious circumstances. The execution of the Will has been duly proved by the defendants. Since the executant was not having any child of his own, it was natural for him to have executed the Will in favour of the sons of his brother so that the agricultural land remains in the family. The judgment relied upon by learned counsel for the appellant fails to advance the case of the appellant in the facts and circumstances of the present case. PW-2 Surinder Kaur deposed that she had been adopted by Gurdip Kaur. In her cross-examination, she deposed that at the time of her adoption by Gurdip Kaur, Thakar Singh was alive. The adoption deed was executed at the time of her adoption but she was not in possession of the same. She had not attended the Bhog ceremony of Thakar Singh. She volunteered that she had not been called for the same. On the other hand, Gurdip Kaur, while appearing in the witness box as PW-4, had not deposed qua adoption of Surinder Kaur by her. Rather she has stated that Chhindo, daughter of her brother Darbara Singh was being treated by her as her daughter. Thus, the fact that Surinder Kaur was adopted by Gurdip Kaur is not established on record. Moreover, if Surinder Kaur had been adopted by Gurdip Kaur, the said fact would have been stated by Gurdip Kaur when she appeared in the witness R.S.A.No. 1630 of 1997(O&M) 8 box as PW-4. No adoption deed has been proved on record by Surinder kaur. Surinder Kaur had stated that she was adopted by Gurdip Kaur during the life time of Thakar Singh. However, as per Section 8 of the Hindu Adoptions and Maintenance Act, 1956, any female Hindu who is not married, or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be Hindu or has been declared by a co` urt of competent jurisdiction to be of unsound mind, has capacity to take a son or a daughter in adoption. Thus, Gurdip Kaur could not validly adopt Surinder Kaur during the life time of her husband. In these circumstances, Surinder Kaur could not be described as adopted daughter of plaintiff Gurdip Kaur. Thakar Singh had executed a registered Will in favour of his nephews on 16.9.1983 and had died on 12.5.1986. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE May 10, 2011 anita