RSA No.1615 of 1986 1 In the High Court of Punjab and Haryana at Chandigarh. (I) Regular Second appeal no.1615 of 1986 Date of decision: 15.03.2011 Rajinder Kaur ...Appellant Versus Manjit Kaur and others ...Respondents (II) Regular Second appeal No.1732 of 1986 Rajinder Kaur ...Appellant Versus Manjit Kaur and others ...Respondents CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Ms. Shikha Sharma, Advocate, for the appellant. Shri P.S. Punia, Advocate, for the respondents. Jitendra Chauhan, J. This judgment will dispose of two appeals No.1615 and 1732 of 1986.The following pedigree table will be helpful in understanding the facts of the case:- Dayal Singh | | | | Smt Har Kaur Ajaib Kaur 2nd wife Ist wife expired. Issueless. Defendant. | | Gurdev Singh. Died on 16.05.1982. | | | | Jagir Kaur Ist wife Rajinder Kaur. 2nd wife Issueless Already expired. Plaintiff | | Manjit Kaur Inderjit Kaur Rupinder Kaur. Defendant Defendant Defendant. RSA No.1615 of 1986 2 Gurdev Singh was working as a clerk in the office of the Deputy Commissioner, Bathinda. Unfortunately, he died in an accident on 16.05.1982, leaving behind Smt Rajinder Kaur widow; Smt. Ajaib Kaur, step mother; Majit Kaur, Inderjit Kaur and Rupinder Kaur daughters, born from the womb of his predeceased Ist wife Smt Jagir Kaur. Gurdev Singh had a kothi No.183 A/36, measuring 400 sq.yards situated in Shant Nagar, Bhagu Road, Bathinda and some land situated in village Chak Kalyan (Mehraj). Mutation No.16242, Ex.P.3, was sanctioned on 30.6.1982 on the basis of inheritance by Assistant Collector Ist Grade in favour of Smt Ajaib Kaur, stepmother; Smt Rajinder Kaur, widow; Manjit Kaur, Inderjit Kaur and Rupinder Kaur, dauthers; in equal shares, regarding the estate of Gurdev Singh deceased.Smt Rajinder Kaur plaintiff was present at the time of sanctioning of the mutation before the Assistant Collector Ist Grade, Bathinda. She was identified by the Revenue Patwari. On 13.9.1982, Smt Rajinder Kaur filed Revenue appeal No.114 before the Collector, Bathinda alleging that Smt. Ajaib Kaur was step mother of Gurdev Singh deceased and thus, was not entitled to inherit any share as she did not fall under class I heir of the deceased. For the first time she set up an unregistered will Ex.P.1 dated 2.8.1972 on 13.09.1982 in this revenue appeal. Vide order Ex.P.4, dated 5.11.1982, the learned Collector dismissed the appeal of Smt Rajinder Kaur and deleted the name of Smt Ajaib Kaur, step mother as legal heir of the deceased from the mutation of inheritance. The daughters on one hand and the widow on the other hand filed civil suits against each other. The daughters filed lis on the basis of natural succession while the widow came forward with an unregistered will dated 2.8.1972 Ex.P.1. RSA No.1615 of 1986 3 Thereafter, Smt Rajinder Kaur plaintiff filed Civil Suit No.584, dated 19.11.1982, against Manjit Kaur, Inderjit Kaur and Rupinder Kaur daughters and Smt Ajaib Kaur, step mother of Gurdev Singh for declaration to the effect that she is the owner in possession of Kothi No.183 A/36, measuring 400 sq.yards, situated in Shant Nagar, Bhagu Road, Bathinda, on the basis of Will Ex.P.1 allegedly executed by Gurdev Singh deceased on 2.8.1972. Manjit Kaur, Rupinder Kaur, and Inderjit Kaur daughters of Gurdev Singh filed Civil Suit No.138 on 6.4.1983 against Smt Rajinder Kaur. Both the suits were contested by the respective defendants. In both the civil suits the common question for determination was as to “Whether Gurdev Singh deceased executed a valid will dated 2.8.1972 in favour of Smt Rajinder Kaur and two daughters Inderjit Kaur and Rupinder Kaur ignoring Smt Manjit Kaur”. Both these suits, Civil Suit No.584 of 1982, Rajinder Kaur vs Manjit Kaur and others; and civil suit No.138 of 1983, Manjit Kaur and others vs Rajinder Kaur were consolidated on 30.9.1983. Both were tried together and decided by single judgment dated 20.11.1985 by the Additional Senior Sub Judge, Bathinda. The learned Additional Senior Sub Judge decreed Civil Suit No.584 dated 1982 filed by Rajinder Kaur against Manjit Kaur, Inderjit Kaur and Rupinder Kaur daughters and Smt. Ajaib Kaur step mother of Gurdev Singh deceased declaring Smt Rajinder Kaur to be owner in possession of Kothi situated at Bathinda and dismissed the suit No.138 of 1983 filed by Manjit Kaur and other daughters against Rajinder Kaur plaintiff. Both the parties went in appeal before the Ist Appellate Court. Manjit Kaur, Inderjit Kaur and Rupinder Kaur filed Civil appeal No.53 of RSA No.1615 of 1986 4 21.12.1985 against Smt Rajinder Kaur and Smt Ajaib Kaur against the judgment and decree dated 20.11.1985 passed in Civil Suit No.584 of 1982 decreeing the suit of Rajinder Kaur widow. The same appellants also preferred Civil appeal No.52 of 1985 against Smt Rajinder Kaur in Civil Suit No.138 of 1983 against the judgment and decree dismissing the suit of daughters by the learned trial court. The learned Ist appellate Court accepted the appeal of Manjit Kaur and other daughters and dismissed the suit for declaration of Smt Rajinder Kaur, widow, regarding ownership of Kothi No.183 A/36. The learned Ist appellate Court reversed the findings on issue no.2, holding that the will Ex.P1, was not proved and Rajinder Kaur, Manjit Kaur, Inderjit Kaur and Rupinder Kaur were held to be entitled to inherit the property of Gurdev Singh in equal shares i.e. 1/4th share each. Smt Rajinder Kaur widow came in these regular second appeals no.1615 and 1732 of 1986 impugning the judgment and decree of the Ist appellate Court dated 23.5.1986. These appeals are being disposed of by this single judgment. Ms. Shikha Sharma, counsel for the appellant in both the appeals argue that Gurdev Singh deceased had executed a legal and valid will on 2.8.1972 in sound disposing mind. She argued that the will, Ex.P1, is duly proved by PW1, Bharpur Singh and PW2, Gurdev Singh, marginal witnesses of the will and PW3, Nirmal Singh, the scribe of the will. PW6, Shri K.C. Jaidka,Document and Finger Print Expert proved the signatures on the will to be that of Gurdev Singh testator. She assailed the findings of the Ist appellate Court. On the other hand, Shri P.S. Punia, counsel for the respondents argued that the will is forged and fictitious document, which came into RSA No.1615 of 1986 5 existence, after four months of the death of Gurdev Singh, testator. He argued that there are number of suspicious circumstances surrounding the will, which the propounder of the will failed to explain. The counsel for the respondent further submits that the judgment and decree of the Ist appellate Court is correct appreciation of evidence. He submits that no substantial question of law is involved in these regular second appeals. I have heard the learned counsel for the parties and have gone through the record of the case with their able assistance. The main question for determination in these regular second appeals is that as to whether the Will Ex.P.1 is forged, fictitious and fake document, which came into existence after the death of Gurdev Singh testator. It is settled law that where there are suspicious circumstances surrounding the will, the onus heavily lies on the propounder to explain the circumstances to the satisfaction of the court before the court accepts the will as genuine. It is also well settled that unlike other documents, a will speaks after the death of the testator and as such when it is propounded, the testator is no longer in this world to say whether it is his will or not. It is due to this fact that courts generally call for a strict proof of the will. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. So, to satisfy the conscience of the court, this court is reviewing the entire evidence in the case. Let us go to the background of the case. Gurdev Singh, a permanent clerk working in the office of the Deputy Commissioner, Bathinda, died in an accident on 16.5.1982. Before death, he was hail and hearty. He allegedly executed an unregistered will dated 2.8.1972. The will is scribed by RSA No.1615 of 1986 6 Nirmal Singh PW3, a semi illiterate truck driver. The marginal witnesses are outsiders. PW1, Bharpur Singh, a totally illiterate person, is Ist marginal witness, who belonged to Village Kot Fatta. The other marginal witness PW2, Gurdev Singh Nambardar, the second marginal witness belonged to Village Gurusar Sainewala. The testator is permanent resident of Bathinda. The will is allegedly executed at the residence of the testator on 2.8.1972. Gurdev Singh, the testator was working in that office where hundreds of documents are registered daily. Therefore, he is expected to understand the value of the document and the procedure for preparation of the same. He was having the knowledge/value of a registered document i.e., if a document is duly registered, the chances of doubting its genuineness and authenticity are very less. Moreover, the testator knew that such important documents are to be scribed from a regular deed-writer and entry/endorsement should be made in the register and such a document should not be kept unregistered. If the testator would execute the will, he will call some respectables of his confidence from Bathinda or atleast from the vicinity, where he permanently reside. He would cite educated persons as marginal witnesses. The working place of the testator is District Courts where he is permanent government employee of the office of Deputy Commissioner, Bathinda. Everybody knew that hundreds professionals like documents writer, typists, advocates are available in the courts to execute the documents. His confidential colleagues or friends are available in his office to attest the will. No special reason has come on record as to why the testator opted to execute the will at his house, that too, from a professional semi illiterate driver. No special affinity or love and affection of the testator with the marginal witnesses is explained. Men may tell lie but the documents cannot. One can RSA No.1615 of 1986 7 see will Ex.P.1 with naked eyes to be forged and ficitious document. The signatures of Gurdev Singh, the testator are at two places at the will in the blue oml while the entire body of the will is in the black ink. The thumb impression of one of the marginal witnesses is in ink and the ridges are not visible on this thumb impression. The testator knew that thumb impression on a document is always obtained with ink pad. The ink pad were easily available in a city where the will was being executed. It is a matter of common knowledge and the testator knew that the executant sign the will in the middle of the paper underneath the contents and on both sides the marginal witnesses sign the will. Now the question arises as to why the manufacturer of the will put a date on it of ten years back. The answer is obvious. Smt Rajinder Kaur, the beneficiary, with whom blank signed judicial paper was available, on which this will was to be prepared, knew fully well that this judicial paper relates to the year 1972. She might have made some consultations with professionals and became aware that this judicial paper could be sent to Government Press, Nasik by the court to ascertain the year of issuance of this judicial paper. So, there are many suspicious circumstances, which goes a long way to show that the will is improbable, unnatural and is not duly executed by Gurdev Singh, the testator in the manner as alleged by Bharpur Singh, Gurdev Singh and Nirmal Singh PW1 to PW3 respectively. In fact, the circumstances show, the will Ex.P.1 came into existence after four months of the death of Gurdev Singh, the testator. Gurdev Singh died in an accident on 16.5.1982. The revenue patwari entered the mutation of Gurdev Singh on the basis of natural succession. If a persons is in possession of a will of the deceased, he would immediately come out RSA No.1615 of 1986 8 with the will to get the mutation entered on the basis of the will. Leave it aside, the will Ex.P.1 was also not produced at the time of the sanctioning of the mutation on 30.6.1982 by Smt Rajinder Kaur, who was present at the time of the sanctioning of the mutation. In September, 1982. Rajinder Kaur widow lay her hands on a blank paper having two signatures of Gurdev Singh and she manuplated the will Ex.P.1 with the connivance of the marginal witnesses and the scribe. Thereafter, this manufactured will was produced in revenue appeal filed by her for the first time on 13.9.1982. Lacunas are always left in a forged and manufactured documents which are detected lateron. Such like signatures are taken on affidavits, plaints or written statements to be filed in a court of law. No doubt, an effort has been made to compare the signatures of the impugned will with the acquitance roll of the department but it is not proved that the signatures and entire body of the will were of one and the same time. The acquaintance roll Ex.PW5/A prove that the testator used to sign as ‘Gurdev Singh Brar’ in his official record. While signing a most important document of his life as his last will and testament, he would also sign as ‘Gurdev Singh Brar.’ But on the will Ex.P.1 he allegedly signed as Gurdev Singh. Mere galance of will Ex.P.1 would show that signatures and other writing of the will are of different times with different ink. Both the marginal witnesses are interested in Rajinder Kaur beneficiary as one of the marginal witnesses is from her parental village and the other is from her maternal village. The circumstances show that the will Ex.P.1 was not executed by Gurdev Singh rather it was manufactured much later after the death of Gurdev Singh by Rajinder Kaur only to grab the valuable urban kothi situated in Bathinda city. RSA No.1615 of 1986 9 In the instant case, the conscious of the court is not satisfied that the will in question was executed by Gurdev Singh. The evidence produced by plaintiff Rajinder Kaur is not sufficient to dispel the surrounding circumstances which create doubt in the mind of the Court. In the facts and circumstances, Smt Rajinder Kaur, who is propounder of the will, has totally failed to discharge the heavy onus upon her explaining the suspicious circumstances surrounding the execution of the will and in establishing that the will Ex.P.1 in question was a valid and genuine document duly executed by Gurdev Singh deceased. So, it is categorically held that the will Ex.P.1 is forged, fictitious and fake document. The findings of the learned Ist appellate Court are affirmed. Rajinder Kaur widow cannot be declared sole owner of kothi No.183 A/36 on the basis of will Ex.P.1. So far possession of Smt Rajinder Kaur appellant in Kothi No.183A/36 is concerned, there is sufficient evidence on record to establish that she is in possession of the same. Ex.PW8/A to Ex.PW8/D prove that the house tax is being paid by Smt Rajinder Kaur. Ex.PW9/A prove that electric connection is installed in the name of Smt Rajinder Kaur. Smt Rajinder Kaur is held to be in possession of the kothi in question. The learned Ist appellate Court held that Rajinder Kaur is in possession of Kothi No.183 A/36 and Manjit Kaur and others are not in possession of the property in dispute. It has been further held that when Rajinder Kaur is in possession of the property, Manjit Kaur is also a cosharer. So Manjit Kaur cannot alienate the property without getting the property partitioned as Rajinder Kaur, Manjit Kaur, Inderjit Kaur and Rupinder Kaur are cosharers in the property in equal shares after the death of Gurdev Singh. It has been further held that when Rajinder Kaur, Manjit Kaur, Rupinder Kaur RSA No.1615 of 1986 10 and Inderjit Kaur are held to be the owners of the property held by Gurdev Singh, so in these circumstances, the parties are restrained to alienate the specific portion of the property till the property is got partitioned by them. The above findings of the Ist appellate Court have not been challenged neither by way of filing appeal nor filing cross objections by Manjit Kaur and two others. So, these findings became final. These findings are modified to the extent that Smt Rajinder Kaur will not be dispossessed from Kothi No.183 A/36, measuring 400 sq. yards, situated in Shant Nagar, Bathinda, except in due course of law unless and until the property left by Gurdev Singh is partitioned. Resultanly, both regular second appeals no.1615 and 1732 of 1986 fail and are hereby dismissed without costs. March 15, 2011 ( JITENDRA CHAUHAN) JUDGE Note: Whether to be referred to the Reporter? Yes / No