Gurdev Kaur & Ors vs Kaki & Ors

Brief facts, which are necessary to dispose of this appeal, are recapitulated as under:

Chanan Singh died on 6.2.1969 in Barnala and the defendant Bhagwan Kaur got the mutation of inheritance of Chanan Singh sanctioned from the concerned authority on the basis of the alleged Will dated 18.1.1969. The case of the plaintiffs is that they never received any notice about the sanctioning of mutation and this has been carried out by defendant Bhagwan Kaur in connivance with the revenue authorities.

According to the plaintiffs, the parties are governed by the Hindu Succession Act. The plaintiffs were entitled to 1/3rd share in the inheritance of Chanan Singh. According to the plaintiffs, the defendants are in illegal possession of the suit land and that the defendants had threatened to alienate the suit land on 6.3.1980.

The defendants in the written statement had admitted the relationship of the plaintiffs with the deceased Chanan Singh. The defendant Bhagwan Kaur alleged that she is the owner and in possession of the suit land on the basis of the Will dated 18.1.1969 executed by her husband in her favour.

The defendant Bhagwan Kaur also alleged that she was the only one who all through stayed and looked after the deceased Chanan Singh during his life time. She further stated that Chanan Singh had got his all daughters married after spending huge amount of money in their marriages. She also alleged that the daughters of Chanan Singh never served him during his lifetime. In fact the plaintiffs had never even visited him. The deceased Chanan Singh had executed a valid Will in her favour out of his free will on 18.1.1969 because of the life long service rendered by her. She prayed that the suit filed by the plaintiffs be dismissed.

According to the plaintiffs the Will is alleged to have been attested by three witnesses and only one attesting witness was examined by the defendants and even that witness had not fully supported the case of the defendants. The Will is not a registered document and is written at the house of the deceased Chanan Singh. He was about 70 years of age at the time of execution of the Will and, according to the plaintiffs, he could not protect his own interest and welfare. The propounder of the Will was present at the time of the execution of the Will. According to the plaintiffs, the defendants had failed to discharge the onus regarding execution of the Will by leading cogent evidence.

On the contrary, it was argued by the defendants that Exhibit D-1 is a natural document and had been executed by the deceased Chanan Singh in favour of his wife Bhagwan Kaur. It is an admitted case of the parties that the deceased Chanan Singh had no son and all his daughters were married long ago. In order to protect the interest of his wife Bhagwan Kaur and to ensure that she does not have to depend on anyone for her maintenance and welfare the deceased Chanan Singh had executed the Will in favour of his wife Bhagwan Kaur. The deceased Chanan Singh had put left hand thumb impression on the Will. The defendants had examined Amar Singh D.W. 1 and Mittar Singh, D.W.2 who is the scribe of the Will, deposed that the Will was scribed by him at the instance of Chanan Singh. Amar Singh D.W.1 and other attesting witnesses of the Will did not fully support the defendant Bhagwan Kaur as she had filed a suit against one Jangir Singh and the attesting witnesses had resiled at the instance of the said Jangir Singh.

If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies.

It may be pertinent to mention that in the memorandum of second appeal filed before the High Court no substantial question of law was formulated. Similarly, the High Court in its judgment has not formulated question of law before hearing the appeal.

In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.