R.S.A. No. 3124 of 2007 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3124 of 2007 (O&M) Date of Decision : 24.3.2009 Bal Krishan .......... Appellant Versus Hari Kishan & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Arun Palli, Sr. Advocate with Mr. Parminder Singh, Advocate for the appellant. Mr. Kunal Malwani, Advocate for respondent No.1. Mr. J.K. Bhatti, Advocate for Mr. J.L. Malhotra, Advocate for respondents No. 2, 3 & 4. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgments and decree passed by the learned Courts below vide which the suit filed by the plaintiff / appellant for declaration and mandatory injunction has been ordered to be dismissed. The plaintiff / appellant filed a suit for declaration claiming that the Wills executed by late Smt. Jamna Devi are null and void and have no values in the eyes of law. The relief of mandatory injunction was also claimed claiming that suit property be partitioned between legal heirs in equal shares. R.S.A. No. 3124 of 2007 2 The facts pleaded was that House No. 233, Sector 20-A, Chandigarh was owned by Smt. Jamna Devi wife of late Sh. Asha Ram. Smt. Jamna Devi was said to have acquired the suit property after selling the plot which was in the name of her husband at Ludhiana, and she was the registered owner of the suit property. The plaintiff Bal Kishan was running a general merchant shop in the year 1955-56 at Civil Lines, Mohalla Ram Nagar, Ludhiana and he was staying with his uncle Jagdish Parshad Gupta. The appellant purchased a ten marlas plot in the name of his father at Ludhiana. But in the year 1956 the appellant got job in PWD Department at Ambala Cantt, and accordingly had to leave the shop which he was running. On 16.12.1956 he had joined as a Clerk and stayed with his father at P & T Colony at Ambala Cantt. The father of the appellant expired at Ambala in the year 1958 and thereafter the appellant was transferred from Ambala Cantt. to Chandigarh in the year 1965 to the Office of Superintending Engineer, PWD Lab., Haryana, Chandigarh. His mother is said to have purchased 8 Marlas plot now house No. 233, Sector 20-A, Chandigarh in her name for residence and use of the appellant. It was further pleaded in the suit that Hari Kishan was residing at Amritsar and Jai Kishan was at Shimla and was working as a Teacher. The plaintiff further pleaded that this plot was constructed by the appellant and thereafter the appellant with an intention to live together in family called the brothers to stay with them as it was purchased in the name of Smt. Jamna Devi, mother of the appellant and respondents. It was pleaded that the amount had been spent by the appellant. It is the case of the appellant R.S.A. No. 3124 of 2007 3 that due to the dispute in the family and to avoid the bickering, the appellant shifted to top floor of the house, as the ground floor was occupied by Hari Krishan and first floor by Jai Kishan defendant. In the year 1984 a registered Will was executed by Smt. Jamana Devi vide which she distributed the property and share to all the three brothers and the plaintiff appellant was given equal share in the property in dispute. Smt. Jamana Devi thereafter executed another Will on 12.6.1985 and third Will on 25.3.1987 wherein the earlier Wills executed by Smt. Jamana Devi were revoked. The case set up by the plaintiff appellant was that after the execution of the Will dated 1.8.1984 late Smt. Jamana Devi was influenced by the defendants / respondents, as they offered to give independent flat to the appellant at Mani Majra and on the said compromise, undertaking was taken from the appellant on 1.6.1985 but the said compromise was not complied with. Smt. Jamana Devi thereafter is said to have executed another Will dated 21.1.1992 with an intention to give equal share to the appellant. The will was registered and thereafter another Will was executed on 18.4.1996, which was said to have been executed and registered at the age of 83 years by Jamana Devi. In the said Will no share was given to the plaintiff appellant and it is the case of plaintiff / appellant that no mention of previous Wills was made. Thus, it was claimed that the Will was null and void and surrounded by suspicious circumstances. In the written statement filed, the suit was contested and assertions made by plaintiff were denied. On the pleadings of the parties, the learned trial Court was R.S.A. No. 3124 of 2007 4 pleased to frame the following issues :- “1. Whether the Will executed by late Smt. Jamna Devi are null and void ? OPP 2. Whether the plaintiff is entitled for mandatory injunction as prayed for ? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 4. Whether the plaintiff has not come to the Court with clean hands ? OPD 5. Whether the suit of the plaintiff is liable to be dismissed on account of non-joinder of necessary parties ? OPD 6. Whether no proper Court fee has been affixed on the plaint ? OPD 7. Relief.” On appreciation of evidence on record the learned Courts below have recorded a concurrent finding of fact holding that late Smt. Jamna Devi executed a Will which was not null and void. In view of the findings recorded on issue No.1 it was held that plaintiff appellant was not entitled to mandatory injunction as prayed for. The learned trial Court was also pleased to hold that the suit filed by the plaintiff appellant was not maintainable in the present form as he had not come to the Court with clean hands. Issues No. 5 & 6 were not pressed and were decided against the defendant/ respondents. Consequently, the suit was ordered to be dismissed. In appeal the learned lower appellate Court was pleased to affirm the findings recorded by the learned trial Court. The learned lower appellate Court considered all the points R.S.A. No. 3124 of 2007 5 raised by the plaintiff appellant and by way of detailed finding rejected the claim of the plaintiff. The findings recorded by the learned lower appellate Court read as under :- “24. Initially Will Ex.PA/2 was executed and registered on 1.8.1984 by Jamna Devi in favour of all her sons vide which she had divided the house among them. The execution and registration of said Will is admitted by both the parties. However, this Will was subsequently revoked vide another Will which is dated 25.3.1987. 25. The second Will Ex.PA/3 was executed on 12.6.1985 vide which plaintiff Bal Krishan was given only life interest. It is mentioned in the Will that Bal Krishan will remain co-owner of a share and after death of Jamna Devi so long she remains alive and after his death his family members will not have any claims to the property, for the reason and Jamna Devi had already compensated him suitably. Its relevant portion is reproduced hereunder :- “My son Sh. Bal Krishan will be the co-owner of this property after my death only so long he remains alive. After his death his family members will not have any claim of the property for the reason that I have already compensated him suitably.” 26. The entire matrix revolves around the handwritten instrument Ex. D3 which is dated 1.6.1985 vide which plaintiff Bal Krishan had agreed that he has R.S.A. No. 3124 of 2007 6 already been compensated by his mother and he has no concern with Kothi No. 233, Sector 20-A, Chandigarh, which belongs to his mother. This writing is admitted by the plaintiff in his plaint. He admitted his signatures on this document and also admitted its execution. But his averment in the plaint to the effect that Jamna Devi under the influence of the defendants, and by giving a promise to give independent flat at Manimajra has taken undertaking from the plaintiff on 1.6.1985. Even while appearing as PW-1 he has admitted the execution Ex.D2. The writing dated 1.6.1985 (in the cross-examination recorded on 17.9.2005 writing dated 1.6.1985 is marked as D2, subsequently the same was marked as Ex. D3). In his cross-examination plaintiff has admitted that writing dated 1.6.1985 is in his handwriting and the same bears his signatures. In his affidavit Ex. PWA/1 he also admitted the execution of said writing dated 1.6.1985. 27. The plaintiff has always been changing his stands with regard to writing dated 1.6.1985. In the pleadings as well as the affidavit he has taken the plea that in fact his mother has promised him to purchase an independent house for her in Manimajra and on this pretext she obtained the writing Ex.P1. A suggestion was put by the plaintiff to DW Hari Kishan that this writing was got written from plaintiff forcibly and signatures of plaintiff were obtained while it was blank. But this plea is beyond pleadings nor the same is legally proved. These circumstances establishes that the plaintiff has admitted that document Ex. D3 was executed by him in his own handwriting and signed by him. The onus has shifted upon him to establish that it was obtained either by misrepresentation or under coercion. The plaintiff has not established the factum of coercion and particulars of R.S.A. No. 3124 of 2007 7 misrepresentation. He remained mum for a long period and taken this plea only in this suit filed on 12.2.2002 to the effect that his signatures were obtained by his mother on the pretext of purchasing of an independent house for him. The plea of coercion and signing of the document Ex.P1 is without any substance and an after thought, even the same is not mentioned in the pleadings of the plaintiff. 28. In the cross-examination, the plaintiff has in unequivocal terms admitted that he himself has written the contents of Ex.D3 which is writing dated 1.6.1985. When he has himself written all the contents of this writing, the question of taking his signatures on blank paper does not arise at all. This fact also establishes that the plaintiff has been concealing the truth and he has made up a false story with regard to execution of Ex.D3. 29. It has been argued strenuously on behalf of the plaintiff that if the version given in Ex.D3 would have been true then there was no need to execute the Will Ex. PA/3 dated 12.6.1985 i.e. 11 days after execution of Ex.D3. I have deeply considered this contention but it has no substance. 30. Janki Devi was mother of the parties. In all the Wills produced on the file one thing is especially mentioned by her that she had love and affection to all his sons. Even in last Will dated 18.4.1996 which is Ex.D2, it is specifically mentioned in Para No.3 thereof that Jamna Devi had three sons namely Hari Kishan, Bal Krishan and Jai Kishan and she had great love and affection towards all of them. She was a mother. Her love towards her sons was everlasting and eternal. Although she had compensated the plaintiff in terms of money yet she had been loving him as a true mother. The R.S.A. No. 3124 of 2007 8 famous saying of Washington Irwing depicts the mind of such a mother :- “A father may turn his back on his child; brothers and sisters may become inverterate enemies; husbands may desert their wives, and wives their husbands. But a mother's love endurses through all; in good repute, in bad repute,in the face of the world's condemnation, a mother still loves on, and still hopes that her child may turn from his evil ways, and repent; still the remembers the infant smiles that once filled her bosom with rapture, the merry laugh, the joyful shout of his childhood, the opening promise of his youth; and she can never be brought to think him all unworthy.” The famous Jewish saying has further defined place of mother as under :- “God could not be every where, and therefore, he made mothers.” 31. The question now arises is what was the need to execute Ex.PA/3 on 12.6.1985. Admittedly the first Will Ex.PA/2 was executed on 1.8.1984 in favour of all of three sons but on 1.6.1985 Bal Krishan was compensated by Jamna Devi in terms of money and he admitted and affirmed this fact vide his writing dated 1.6.1985. In this Will Ex.PA/2 she has given a reason that her son Bal Krishan will be co-owner of the property only till his life as he has already been compensated suitably. It was a cogent and suitable reason to change the Will Ex. PA/2 after 1.6.1985. Admittedly plaintiff is son of Jamna Devi and he has been residing in said house, belonging to Jamna Devi R.S.A. No. 3124 of 2007 9 and Will had come into force after father death of Jamna Devi. She had great love and affection for all of her sons, therefore, she has bequeathed and conferred a limited estate i.e., life interest to her son Bal Krishan after execution of writing dated 1.6.1985. It is specifically mentioned in Ex.PA/3 that after death of Bal Krishan his family members have no claim in the house in dispute. But Jamna Devi was not satisfied with the execution of the Will dated 12.6.1988. Perhaps it was in her mind that she has not cancelled her Will Ex.PA/3 that is why vide Will Ex.PA/4 she has made clarification of matter and through this Will she has revoked the first Will dated 1.8.1984 which is Ex.PA/2. Vide Ex.PA/4 she has bequeathed entire ground floor to Hari Kishan, first floor to Jai Kishan and provided right to reside to Bal Krishan in the barsati portion on the top floor of the house only for his life and she ha s clarified that after the death of Bal Krishan his legal heirs have no right or title. In other words she put an embargo on the succession rights of the legal heirs of Bal Krishan as the latter was given only right to reside on the barsati portion till his life. It has also been specifically mentioned in Ex.PA/4 that she had already compensated her son Bal Krishan suitably. 32. Now coming to the Will dated 21.1.1992 which is Ex.PO/5. In this Will she had already clarified the testament made in Will Ex.PA/4 and through this Will she had bequeathed that none of her son can sell their respective shares in the house in question. However, they can use the premises as their personal residence. Again she has specifically mentioned that she had fully compensated her son Bal Krishan by financially helping him. At the time of marriage of her daughters and R.S.A. No. 3124 of 2007 10 otherwise also she has again given right to reside to Bal Krishan and his wife in the second floor of house uptill their respective lives. Nothing new is added in this Will Ex.PA/5. 33. Now coming to the cancellation deed. Through this document Jamuna Devi had cancelled above said Wills Ex.PA/2, Ex.PA/3, Ex.PA/4 amd Ex.PA/5. She executed the impugned Will Ex.D2 dated 18.4.1996. It appears that she first of all executed Ex.PA/1. The same was registered at No. 268 dated 18.4.1996. Subsequently she executed Will Ex.D2 which was entered at No. 269 on 18.4.1996. In this Will also she has clarified that she has already compensated her son Bal Krishan who has received entire share in the shape of cash, jewellery from her in lieu of her share towards House No. 233, Sector 20-A, Chandigarh, and she executed a writing dated 1.6.1985, therefore, she has executed this Will only in favour of her two sons Hari Kishan and Jai Kishan. In other words nothing is added in this Will. 34. So far as execution of Will Ex.D2 is concerned, the same is proved by leading cogent evidence. This Will is drafted by Shri G.S. Saini, Advocate and is attested by Shiv Kumar DW2 and Joginder Singh Saini DW3. All these witnesses have been examined by defendants. DW4 G.S. Saini, has submitted his affidavit Ex. DW3/A wherein he has stated that on 18.4.2006 at about 3 P.M. Jamna Devi accompanied by DW3 Joginder Sijngh and DW2 Shiv Kumar came to him and she disclosed that she wanted to execute a Will. He has further testified that Will was drafted by him at the instructions of Jamna Devi. He had read over and explained the contents of Will in simple language to her R.S.A. No. 3124 of 2007 11 and she signed the same. Thereafter the Will was presented before Sub Registrar, by Jamna Devi herself in the presence of all the three witnesses and the Sub Registrar also read over and explained the contents thereof to Jamna Devi where at she had also signed the same and the witnesses along with Joginder Singh Saini, Shiv Kumar have also signed the Will. She has categorically stated that at that time she was in senses and sound mind. DW2 Shiv Kumar and Joginder Singh had also testified this fact. In the last line of their affidavit they had testified that Jamna Devi was in senses and was sound mind. Before signing the Will the same was read over to her in simple language. They have also corroborated that Sub Registrar had also read over the Will to her. To mind of this court the due execution of the Will is fully proved. Apart from it, execution of Will is not denied rather the same is challenged by the plaintiff on the ground that Jamna Devi was under influence of defendants but this fact is not proved by leading cogent evidence. It has come into evidence that the plaintiff is also residing on the second floor of the demised premises during the life time of Jamna Devi. It is not the case that he was rendering services to her. It is also mentioned in the Will that only her two sons Hari Kishan and Jai Kishan are rendering services to her and looking after her in the old age. Although the testator had love and affection qua her all the sons yet she was more satisfied with the services rendered to her by her two sons Hari Kishan and Jai Kishan. She had already compensated the plaintiff by giving jewellery and cash and the plaintiff has confirmed this fact vide his writing Ex.D3 which is dated 1.6.1985. In this view of the matter no suspicious circumstance has been put forth or R.S.A. No. 3124 of 2007 12 established which can render Will Ex.D2 ingenuine or invalid. This court is of the considered opinion that Will Ex.D2 which is dated 18.4.1996 is natural, genuine and without any suspicious circumstance. Thus the same is acceptable. Apart from it Jamna Devi remained alive even for 9 months after the execution of the Will and she never get it revoked. It has also been argued that the present house has been purchased by plaintiff Bal Krishan with his own funds but the plaintiff failed to establish this fact . However, a plea in question was taken by the plaintiff that in fact the property was purchased by Jamna Devi after selling a house at Ludhiana which she had inherited from her husband but again no evidence is produced to substantiate this plea. No sale deed executed at Ludhiana has been produced on the file. It has come into evidence that all the parties and Jamna Devi had executed special power of attorney Ex.D3 on 11.6.1962 vide which they have authorised Hari Kishan defendant as a lawful special attorney for the purpose of selling their respective shares out of house out of land measuring 150 sq. yards at Ludhiana. In pursuance of this power of attorney, the house at Ludhiana was sold by Hari Kishan. Thus, this plea is of no advantage to the case of plaintiff. 35. This Court has independently assessed the evidence on the record and is of the considered opinion that the findings of the learned trial court on all the issues are based upon proper appreciation of the evidence and the same are hereby affirmed.” It may be pertinent to mention here that keeping in view the relationship between the parties an offer of compromise was made, though R.S.A. No. 3124 of 2007 13 the defendant / respondents accepted the offer and agreed that the plaintiff appellant could stay in the premises during the life time without having any proprietary right in the property, the appellant plaintiff refused the said offer and sought to contest the case on merit. Mr. Arun Palli, learned Senior counsel appearing on behalf of the appellant contends that this appeal raises the following substantial question of law for consideration by this Court :- “Whether the learned Courts below were in error in accepting the Will though the same was surrounded by the suspicious circumstances which were not explained by the propounder of the Will ? The contention of the learned senior counsel for the appellant in support of the substantial question of law is that if the Wills executed from time to time by Smt. Jamna Devi are read it would prove that she had equal love and affection for all sons and therefore the execution of plaintiff / appellant in the Will propounded by the defendant respondents cannot be said to be outcome of free disposing mind especially in view of the fact that she was of the age of 83 years at the time of execution of the said Will. The learned senior counsel for the appellant also contended that the Will is surrounded by suspicious circumstances, on account of the fact that the number of Wills have been executed from time to time thus executant was not of sound disposing mind. However, the contention of the learned senior counsel cannot be accepted in absence of any positive evidence on record in this regard. The execution of number of wills, and age R.S.A. No. 3124 of 2007 14 of 83 years can not lead to conclusion that executant was of unsound mind or that the Will is surrounded by suspicious circumstances. The defendants have proved the due execution of the Will by examining the attesting witnesses. It was for the plaintiff appellant to have prove the allegations that the executant was not of sound disposing mind at the time of execution of the Will. The plea raised by the learned senior counsel for the appellant thus deserves to be rejected. The next contention of the learned senior counsel for the appellant is that the attesting witnesses of the Will were colleagues of one of the beneficiary, which stands proved on record and, therefore, the Will can not be accepted as it is a strong suspicious circumstance surrounding the Will. However, this plea is also misconceived. Merely because that the attesting witnesses were colleagues of one of the beneficiary who did not participate in the execution of the Will and there is no other evidence to show that the influence on the executant, the testimony of the attesting witnesses can not be rejected. In cross-examination the testimony of attesting witnesses could not be shattered. The final contention of the learned senior counsel for the appellant that in the will in dispute no reasons have been given to disinherit the appellant, therefore, this is a strong suspicious circumstance which was required to be explained. The reading of the judgment given by the learned lower appellate Court, as reproduced above, would show that reasons have been given and disinheritance of the plaintiff appellant stands explained. The R.S.A. No. 3124 of 2007 15 contention raised that the Will was surrounded by suspicious circumstance cannot be sustained. The Will was executed