Regular Second Appeal No.2420 of 1985 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Regular Second Appeal No.2420 of 1985(O&M) Decided on : May 19, 2009 Rajinder Singh and others ... Appellants VERSUS Bakhtaur Singh through LRs ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Sudhir Mittal, Advocate for the appellant. Mr.Sanjay Majithia, Senior Advocate assisted by Ms.Jashanpreet Singh, Advocate for the respondent. A.N.JINDAL, J.- CM No.4182-C of 2009 : Respondent No.1 is stated to have died and the present application has been moved for bringing on record his legal representatives. Miscellaneous application is allowed. Harbans Kaur and Amarjeet Kaur, fully described in para 2 of the application are ordered to be impleaded as legal representatives of Bakhtaur Singh – respondent No.1. RSA No.2420/1985 : This Second Appeal filed by the defendants – appellants (herein referred as the defendants) has arisen out of the judgment dated 16.3.1985 passed by Additional District Judge, Barnala, who while Regular Second Appeal No.2420 of 1985 [ 2 ] upsetting the judgment and decree dated 25.5.1982 passed by Sub Judge Ist Class, Barnala, had decreed the suit of the plaintiff – respondent (herein referred as the plaintiff). Bhajan Singh son of Bishan Singh resident of Khurd, died unmarried and issueless on 15.5.1977. Bakhtaur Singh (plaintiff) was his real brother, whereas, the defendants are the sons of his sister, namely Amar Kaur, residents of village Loht-Baddi, Tehsil Malerkotla. Bhajan Singh had another brother Bachan Singh, who also died on 10.3.1980. Bhajan Singh is stated to have executed a Will in favour of the defendants on 20.5.1975, on the basis of which mutation was sanctioned in their favour, which has been challenged by the plaintiff Bakhtaur Singh. The defendants contested the suit claiming their rights on the basis of the Will executed by Bhajan Singh in their favour, in lieu of the services, so rendered by them towards Bhajan Singh. The Trial Court vide order dated 9.6.1980 framed the following issues:- “(1) Whether the plaintiff being the brother of Bhajan Singh deceased is only lawful heir and as such entitled to succeed to the property in dispute? OPP (2) Whether Bhajan Singh deceased executed valid and last Will dated 20.5.1975 in favour of the defendants? OPD (3) Whether the order dated 31.8.1979 of the learned Assistant Collector Ist Grade, Barnala is null, void and inoperative as against the rights of the plaintiff? OPP (4) Whether this suit is bad for non-joinder of necessary parties? If so, to what effect? OPD Regular Second Appeal No.2420 of 1985 [ 3 ] (5) Whether the suit has been properly valued for the purpose of court fee and jurisdiction? If not, what is its correct value? OPP (6) Whether the plaintiff is entitled to the injunction prayed for? OPP (7) Relief.” Both the parties led evidence. Thereupon, the Trial Court adjudicated issue No.1 in favour of the defendants and against the plaintiff. Issue No.2 regarding the Will was decided in favour of the defendants and against the plaintiff. Further, holding Amar Kaur as necessary party to the suit issue No.4 was decided against the plaintiff and while deciding issue No.5 in favour of the plaintiff and issue No.6 against him, dismissed the suit. The appeal preferred by him was accepted by the Additional District Judge, Barnala and the suit of the plaintiff was decreed to the effect that he is owner in possession of ½ share in the suit land and he was also held entitled to consequential relief of injunction, restraining the defendants from interfering in his possession over the suit land, without due process of law. The substantial question of law arising in the case is as under:- (i) Whether the Will dated 20.5.1975 (Ex.D2) allegedly executed in favour of the sons of Amar Kaur, sister of the executant Bhajan Singh (deceased) was actually executed and if so, whether the same was the result of his free will and conscience and is not surrounded by any suspicious Regular Second Appeal No.2420 of 1985 [ 4 ] circumstances? Before determining the legal issue, I need to reiterate that the deceased Bhajan Singh died unmarried and issueless on 15.5.1977. The alleged Will executed by him in favour of the sons of his sister is dated 20.5.1975. The defendants are the residents of village Loht-Baddi, whereas, the plaintiff is resident of village Khurd. The onus to prove the Will was on the defendants and in order to discharge the onus, they examined Shri Roshan Lal (DW3) being the scribe, Bhag Singh (DW4) being the marginal witness, who did not support the Will. Labh Singh, the other attesting witness has not been examined. Bhag Singh (DW4) during cross- examination stated that before his arrival, the Will had already been written. Bhajan Singh did not put his signatures in his presence, however, he was present. Labh Singh did not attest the Will in his presence. He has gone on to state that Bhajan Singh and Labh Singh appeared before the sub- Registrar, who did not read out the Will and Bhajan Singh did not put the thumb impression on the reverse side of the Will, in the presence of the sub- Registrar, but had put the thumb impression in the clerk's room, where, he and Labh Singh had attested it. Similarly, Roshan Lal (DW3) stated that he did not know the party personally, so as Gurdeep Singh Walia, sub- Registrar. It may be observed that though Diwan K.S.Puri, Finger Print Expert appeared to identify the thumb impression of the deceased, which he had affixed in the office of Sub-Registrar, but he did not compare the signatures which were affixed by the deceased under the Will with any other Regular Second Appeal No.2420 of 1985 [ 5 ] standard signatures, affixed by him on any document. The appellants in order to contend that the Will was a genuine document, urged that it is a registered document and bears the endorsement of the sub-Registrar to that effect, therefore, it goes a long way to prove its execution. Roshan Lal (DW3), who is scribe of the Will, has categorically stated that he scribed the same at the instance of Bhajan Singh and he had put his signatures in his presence. Similarly, Bhag Singh (DW4), though has not admitted the execution, but he himself had also attested the Will and stated that Bhajan Singh had arrived at the time of execution of the Will. Gurdeep Singh Walia (DW7) also proved its execution and the endorsement made by him, over-leaf the Will. Under these circumstances, counsel for the appellants has contended that the findings returned by the Trial Court are not correct. Arguments heard. Record perused. There is no denying a fact that the Will is executed for deviating the natural course of succession and to confer benefits over those with whom the testator had some extra love, affection and affiliation and it is also executed to reward the beneficiary for the services rendered to the deceased. The document like a Will being sacrosanct one is executed by the testator when he looses all the hopes against whom he wants to ignore and develops faith in the beneficiaries and he wants to benefit his beloved ones during his life-time. Sometimes, having poised and fed up with the attitude, behaviour and ill-dealings of his kiths and kins, the testator feels to punish them by deviating the natural course of succession. However, the Will has to be proved like any other document, as envisaged under Sections Regular Second Appeal No.2420 of 1985 [ 6 ] 67 and 68 of the Indian Evidence Act. It has to be proved that it was executed and attested according to Section 63 of the Indian Succession Act and the testator had signed in the presence of the witnesses, attesting the same and the attesting witnesses had signed in the presence of the testator after receiving its acknowledgment of its execution. The other factors to be proved are the capacity, competency and fitness of the testator i.e., his sound disposing mind is necessarily to be proved. The factors as pleaded in the Will, if not proved, as per the existing situation at that time, become a major cause to disbelieve the said document. The deviation of natural succession, while executing the Will in favour of others also, needs support from major factors for doing so by the testator. After thrashing the whole law on the validity and genuineness of the Will, Hon'ble Mr.Justice M.S.Liberhan, while making the following observation in case Gurdial Singh Mann and others vs. Kulwant Kaur and others, 1989(2) RRR 142 laid down the following principles, to be taken care of at the time of checking the authenticity of execution of a Will:- “(i) The execution of the Will has to be proved as any other document as envisaged under Sections 67 and 68 of the Evidence Act. It has to be proved that it was executed and attested according to Section 63 of the Indian Succession Act, i.e. the testator had signed in the presence of the witnesses attesting the same and the attesting witnesses had signed in the presence of the testator after receiving his acknowledgment with respect to its execution. Regular Second Appeal No.2420 of 1985 [ 7 ] (ii)It has to be shown that the Will was executed by a person, competent to execute, and of sound disposing mind at the time of its execution. (iii)The suspicion, if any, has to be explained or removed to the satisfaction of the court's conscience before the will is accepted as the last will of the testator. (iv)The suspicious circumstances have to be explained to the satisfaction of a Court to the extent of a prudent mind's satisfaction and not of mathematical certainty. (v)That rules of dispelling suspicious circumstances under which the Will is charged enjoin a reasonable skepticism and not an obdurate persistence in disbelief. It does not demand even in the suspicious circumstances a resolute and impenetrable incredulity. (vi)Suspicions around the Will make the duty of the Court more onerous to scrutinise the evidence while appreciating it in a vigilant and cautious manner and in particular when the Will is unnatural. (vii)In case the execution of the Will is surrounded with suspicions, it is a matter of Court's conscience and it is for the Court to assess the evidence led by the propounder of the Will to show to its satisfaction that it was duly executed by the testator. (viii)The suspicions have to be inherent in transaction itself which is challenged and cannot be assumed as the suspicions Regular Second Appeal No.2420 of 1985 [ 8 ] arising out of the mere conflict of testimony. (ix)Once the execution of the document is proved, motive of its execution is of no consequences except to explain the suspicious circumstances. (x)While judging the credibility of the testimony of the witnesses, surrounding circumstances as well as the probabilities have to be taken into consideration to form a correct idea of the trustworthiness of the witness. (xi)Ordinarily in the absence of suspicious circumstances surrounding the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus of proving the Will. (xii)In case of allegations of undue influence, fraud or coercion, the onus is on the person who alleges the same. (xiii)The participation of the beneficiary in the execution of the Will by itself is not a sufficient circumstance to disbelieve the execution of the Will. The only note of the caution in such a case is that the Court should proceed in a vigilant and cautious manner while appreciating the evidence. (xiv)Merely because the Will is an unregistered Will, no prejudice should be shown to it. The registration only makes the proving of the will easy for the legatees. (xv)The making of an intentionally wrong statement in a Will again by itself cannot cast any doubt on the contents of those parts thereof by which a specified property is bequeathed to Regular Second Appeal No.2420 of 1985 [ 9 ] the legatee nor the legatee can be made to suffer for some untruthfulness on the part of the testator. The Courts have to take into consideration what is the wrong statement and in what surrounding circumstances it was made. (xvi)Merely the attesting witnesses being of a different village again does not by itself constitute a suspicious circumstances. (xvii)It is the quality of the evidence which has to be considered and not the quantity. If only one of the attesting witnesses has been examined and for the other no explanation has been submitted, it itself does not cast doubt about the genuineness of the Will though it may be taken into consideration while examining the Will in its totality. (xviii)The depriving of one of the natural heirs or the Will being unnatural again in itself is not sufficient to discard the Will. It enjoins a hard duty on the Court to satisfy its conscience about the due execution of the Will with greater degree of care than usual. It is one of the reasons that the Wills are usually executed to divert the natural course of succession or to confer a special benefit on a beneficiary. Every person must be presumed to act in accordance with the normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner for the reasons best known to them. The Judges cannot impose their own standard of behaviour on those who execute Wills. Regular Second Appeal No.2420 of 1985 [ 10 ] (xix)It is the totality of circumstances which should be taken into consideration while judging the credibility of the witnesses and the explanation given with respect to the suspicious circumstances, if any, surrounding either its due execution or the testamentary capacity of the (sic). (xx)Once the execution of the Will is proved by disinterested,, satisfactory and sufficient evidence and the sound disposing mind of the testator is proved as required by law, the Courts would be justified in returning a finding in fvaour of the propounder. (xxi)In the ordinary course, the Courts cannot go behind the motive for the execution of the Will unless there are suspicious circumstances the explanation of which is sought in the motive.” Now, while applying the aforesaid principles on the facts and circumstances of the instant case, it may be observed that Bhajan Singh was only 50 years old and apparently was not suffering from any disease, because as no document has comeforth to prove if he was suffering from any ailment, therefore, a man of 50 years, unless proved otherwise, will be treated as well. However, the mention of the fact that he used to remain ill in the Will is contrary to the actual fact. Similarly, the Will records a fact that Bhajan Singh was residing with the appellants and he was pleased with their services, but no voter-list, ration-card or any other document, showing their joint residence, has comeforth. It has come in evidence that the Regular Second Appeal No.2420 of 1985 [ 11 ] plaintiff had the cordial relations with the deceased and they were the joint owners of the suit land. No special reasons have been recorded in the Will for ignoring the plaintiff – respondent. The other suspicion, with which the Will is shrouded is that it bears the signatures of Bhajan Singh under the Will, but it has come in evidence that endorsement made by the sub-Registrar bears his thumb impression. Had he really intended to execute the Will, then he must have signed the document before the sub-Registrar as he allegedly signed before the petition writer. Again, a suspicion arises as to why the signatures of Bhajan Singh under the Will were not compared when the appellants – defendants took serious pains to get compared the thumb impressions, marked by him, before the sub-Registrar. It has also come in evidence of Bhag Singh that neither the Will was read over to Bhajan Singh by the petition writer, nor was read over by sub-Registrar Gurdeep Singh Walia, therefore, in the absence of the compliance of Section 63 of the Indian Succession Act and Sections 67 and 68 of the Indian Evidence Act, the Will, irrespective of the fact that it was a registered one, is of no consequence. Mere fact that the Will is registered document by itself, will not be sufficient to dispel the suspicious circumstances regarding the validity of the Will. The question of registration became the subject of hot discussion in case of Rani Purnima Devi and another vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567, wherein, it was observed that the mere fact that the Will is a registered one, will not by itself be sufficient to dispel all the suspicious circumstances regarding the validity of Regular Second Appeal No.2420 of 1985 [ 12 ] the Will, where suspicions exist. It has been held that broad statement of the witness that he witnessed the testator regarding the execution of the Will, will not dispel the suspicion regarding the due attestation and execution of the Will. It has been specifically held in case H.Venkatachala Iyengar vs. B.N.Thimmajamma and others, AIR 1959 SC 443 that registration of a Will by itself is not sufficient to remove the suspicion. As regards the execution of the Will, out of the two attesting witnesses, Bhag Singh (DW4) has not supported the execution and the other witness Labh Singh has not been examined. Now, we are left with the statement of scribe Roshan Lal (DW3) and Gurdeep Singh Walia (DW7). Since, none of these two witnesses was known to the deceased, therefore, they cannot be said to be attesting witnesses of the Will. In Gurdial Singh Mann's case (supra), the Hon'ble Judge elaborately dealt with Sections 67 and 68 of the Indian Evidence Act regarding evidence of the Will, mode of proof and law regarding satisfactory parameters to upheld the Will. Similarly, in Smt.Bhagya Wati Jain vs. General Public , 1994(2) Punjab Law Reporter 649, a Division Bench of this Court laid down the parameters that Will should be executed in accordance with the provisions of Section 63 of the Indian Succession Act read with Sections 67 and 68 of the Evidence Act. In other words, the testator should have signed or affixed his thumb impressions on the Will in the presence of two witnesses and each of the witnesses should sign the Will in the presence of the testator. Onus to prove is on the propounder and if there are any suspicious circumstances, the propounder to remove the same by clear and satisfactory Regular Second Appeal No.2420 of 1985 [ 13 ] evidence, before the document is accepted as last Will of the testator. In the case in hand, Bhag Singh (DW4) has stated that they had not thumb marked before the sub-Registrar, but had done so in another room before the clerk and the document was not read over to them. As such, the Will cannot be said to be proved at all. That apart, no reasons have been assigned to ignore the real brother and confer the bounty upon the sons of his sister when the testator had no special love and affection with them. It may also be noted that the testator having only 50 years old, had long life to live and there was no occasion for him to execute the Will. The Appellate Court appears to have assigned sufficient reasons for ignoring the Will and settle the property of Bhajan Singh by way of natural succession. Resultantly, the substantial question of law, as framed above, is answered against the appellants – defendants. Thus, while affirming the impugned judgment, the appeal is dismissed. ( A.N.JINDAL ) JUDGE May 19, 2009 `gian' To be Referred to Reporter - Yes/ No