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2000 DIGILAW 1509 (PNJ)

Baltej Singh v. Hamir Kaur

2000-12-07

K.C.GUPTA

body2000
JUDGMENT K.C. Gupta, J. - This Regular Second Appeal is directed by the plaintiff against the judgment and decree dated 20.8.1980 whereby his appeal was dismissed and the judgment and decree of the trial court passed by Sub Judge II Class, Sangrur, dated 9.11.1978, whereby his suit for possession of land measuring 107K-3M situated in the revenue estate of village Mander Khurd was dismissed with costs, was confirmed. 2. Briefly stated, the facts are that Ginda Singh @ Gobind Singh s/o Chand singh resident of village Mander Khurd was the owner of land measuring 107K-3M situated in the revenue estate of village Mander Khurd. Smt. Hamir Kaur, respondent, it his widow. Ginda Singh had two sisters, namely, Bachan Kaur and Sham Kaur. Baltej Singh, appellant, is the son of Bachan Kaur i.e. sisters son of Ginda Singh. Ginda Singh had no child of his own. 3. It is alleged that the appellant used to serve Ginda Singh and on account of love and affection. Ginda Singh had executed a will dated 20.1.1970 in favour of the appellant. Subsequently, Ginda Singh died on 15.11.1971. After his death, the mutation of the suit land was sanctioned in favour of his widow, Smt. Hamir Kaur, respondent on 20.3.1974. Aggrieved by the sanctioning of the mutation in favour of the respondent, the appellant filed a suit for possession of the suit land on 6.6.1974. 4. The respondent contested the suit and filed written statement on 5.8.1974. She controverted the allegations of the appellant and stated that her husband, Ginda Singh, never kept Baltej Singh, appellant, with him nor, he ever considered him as his heir. She further stated that the Ginda Singh did not perform the marriage of Baltej Singh and Baltej Singh always resided in his own Village Thikriwala and never resided at Mander Khurd. She further stated that Baltej Singh never served Ginda Singh. She next stated that Ginda Singh had not executed any will in favour of Baltej Singh and the alleged will was a fake document, so she prayed that the suit be dismissed. 5. Accordingly, the following issues were struck :- "1. Whether Ginda Singh deceased executed a valid will in favour of the plaintiff ? OPP 2. Relief." Both the parties adduced their evidence. 6. 5. Accordingly, the following issues were struck :- "1. Whether Ginda Singh deceased executed a valid will in favour of the plaintiff ? OPP 2. Relief." Both the parties adduced their evidence. 6. After hearing counsel for the parties, the then Sub Judge IInd Class, Sangrur, vide his judgment dated 9.11.1978 dismissed the suit of the appellant for possession of the suit land measuring 107K-3M. 7. Aggrieved by the said judgment and decree, the plaintiff filed an appeal, which was heard by the Additional District Judge, Sangrur. He also dismissed the appeal vide his judgment dated 20.8.1980. 8. Still feeling dis-satisfied, the plaintiff has filed the present Regular Second Appeal on 25.11.1980. It was admitted vide order dated 12.2.1981. 9. Senior Counsel for the appellant, Sh. Vinay Mittal alongwith Sh. Arvind Bansal, counsel for the respondent, Sh. Amarjit Markan were heard and the record was carefully perused. 10. The first question to be seen is whether Ginda Singh @ Gobind Singh, who was owner of land measuring 107K-3M situated in village Mander Khurd had executed will, Ex.P1 in favour of his sisters son, namely, Baltej Singh, appellant ignoring his wife, Smt. Hamir Kaur, respondent. 11. In order to prove the due execution of the will, the appellant has examined PW1, Gurcharan Singh, Scribe of the Will, PW2, Jawala Singh and PW3, Amar Singh, Marginal witnesses of the will, Ex.P1. PW1, Gurcharan Singh stated that he knew Gobind Singh s/o Chand Singh resident of his village and Baltej Singh was his sisters son who belonged to Village Thikriwala. He next stated that from the childhood Baltej Singh used to reside at Village Mander Khurd at the house of his maternal uncle and his marriage was performed by Gobind Singh. He further stated that will Ex.P1 was scribed by him at the instance of Gobind Singh and after writing, he had read over it, to him, who had thumb marked it after admitting it to be correct. He further stated that Jawala Singh and Amar Singh had attested it as witnesses. He next stated that at that time Gobind Singh was in a sound disposing mind and will was scribed at Thikriwala. He further stated that the witnesses had put thumb impression in the presence of Gobind Singh and Gobind Singh had also put his thumb impression in the presence of the witnesses. He next stated that at that time Gobind Singh was in a sound disposing mind and will was scribed at Thikriwala. He further stated that the witnesses had put thumb impression in the presence of Gobind Singh and Gobind Singh had also put his thumb impression in the presence of the witnesses. He admitted that his wifes sister was married to the brother of Baltej Singh, appellant. This means that he is related to the appellant. He further admitted that at the time of scribing of the will, Baltej Singh was present at the house. However, he stated that Baltej Singh was not present at the place where the will was scribed. He was confronted with portion A to A1 of his previous statement, Ex.D1, where it was written that Baltej Singh was present at the place where the will was executed. 12. PW2, Jawala Singh resident of Village Thikriwala stated that he knew Gobind Singh resident of village Mander Khurd. He further stated that Baltej Singh was brought up by Gobind Singh and he had got him married. He next stated that about 5-1/4 years back, Gobind Singh had executed a will in favour of Baltej Singh, which was scribed by Gurcharan Singh at the instance of Gobind Singh and Gobind Singh after hearing the contents of the will had thumb marked it. He further stated that he and Amar Singh had attested the will. In cross-examination, he stated that the will was scribed at the house of Baltej Singh, appellant and at that time the whole family of Baltej Singh was sitting near them. Further admitted, that Gobind Singh was illiterate. He next stated that he had never visited Village Mander Khurd. He could not say difinately whether Gurcharan Singh, scribe of the will, belonged to village Mander Khurd. He further stated that the marriage of Baltej Singh was performed at Village Thikriwala. If his marriage had been performed by Gobind Singh, then he would have performed the marriage at his own Village Mander Khurd and not at Thikriwala. This shows that it is only a made up story that Gobind Singh had performed the marriage of Baltej Singh. 13. If his marriage had been performed by Gobind Singh, then he would have performed the marriage at his own Village Mander Khurd and not at Thikriwala. This shows that it is only a made up story that Gobind Singh had performed the marriage of Baltej Singh. 13. PW3, Amar Singh stated that he knew Gobind Singh resident of Village Mander Khurd and he had executed a will in favour of Baltej Singh about 5-1/4 years ago which was scribed by Gurcharan Singh at the instance of Gobind Singh. He further stated that Gobind Singh had thumb marked it after admitting it to be correct and he and Jawala Singh Lambardar, had attested it as witnesses. He further stated that Gobind Singh was in sound disposing mind at that time. He denied the suggestion that there was already some thumb impression on a blank paper on which fake will was executed. He further stated that he had seen Gobind Singh for the first time on the date of execution of the will. He was confronted with his statement, Ex.D2, which he had given before the Revenue Officer where it was stated that he had seen Gobind Singh 5-7 days before the execution of the will. He next stated taht at the time of execution of the will, Baltej Singh and his brother and other family members were not present and he had not made such statement earlier. He was confronted with his previous statement, Ex.D2 portion B to B, where it was stated that they were present. This shows appellant had got the thumb impression of Gobind Singh on the will, Ex.P1 compared with the so called standard thumb impression to prove positively that the will, Ex.P1 contained the thumb impression of Gobind Singh at Ex.P1/A. PW4, Sadak Hussain, Statistical Assistant, Sangrur, stated that he had brought the operation file of Gobind Singh s/o Chand Singh resident of village Mander Khurd. He was admitted in hospital on 10.11.1971 as indoor patient and at the time of admission, the income of the patient was written and after that the thumb impression of the patient was obtained. He further stated that at the time of operation the consent of the patient was also obtained and he was made to sign or thumb mark that consent. He produced that file which was also signed by Dr. B.D. Goel. Surgical Specialist. He further stated that at the time of operation the consent of the patient was also obtained and he was made to sign or thumb mark that consent. He produced that file which was also signed by Dr. B.D. Goel. Surgical Specialist. In cross-examination, he stated that he did not know Gobind Singh personally and his thumb impression was not obtained on the paper in his presence. 14. PW8, Dr. B.D. Goel stated that on 10.11.1971, he was posted as Surgical Specialist at Civil Hospital Sangrur and on that day Gobind Singh son of Chand Singh of Mander Khurd was admitted in the Hospital and he was operated upon. However, he stated that thumb impression at Mark X was not obtained in his presence as normally the entries in the bed head ticket were made by the nurses on duty. Therefore, the evidence of PW4 Sadak Hussain. Statistical Assistant and PW8, Dr. B.D. Goyal is not helpful to prove that the thumb impressions at mark X and X2 were that of Gobind Singh. PW6, Sham Kaur, who is the sister of appellants mother, stated that Baltej Singh used to serve Gobind Singh and lived at Village Mander Khurd. She next stated that Gobind Singh used to get the land cultivated from the share croppers and Baltej Singh also used to help him in the cultivation. She further stated that Gobind Singh had performed the marriage of Baltej Singh with his own money at Thikriwala. She next stated that the Gobind Singh had died after 3-4 days of the operation at Civil Hospital, Sangrur and she had accompanied him to the hospital at the time of admission and certain papers were scribed and one of the paper was thumb marked by Gobind Singh. She further stated that thumb impression of his brother was also obtained at the time of operation. In cross-examination, she could not state that as to who had obtained the thumb impression of Gobind Singh. Again stated that the thumb impressions were obtained by the doctor. On the other hand, she stated that he did not obtain the thumb impression. She further stated that thumb impression of his brother was also obtained at the time of operation. In cross-examination, she could not state that as to who had obtained the thumb impression of Gobind Singh. Again stated that the thumb impressions were obtained by the doctor. On the other hand, she stated that he did not obtain the thumb impression. She next stated that the paper on which there was thumb impression of Gobind Singh was handed over to Baltej Singh which was kept by him and that paper was blank and she had seen that paper in the village and it was stated that the thumb impression of Gobind Singh was obtained at the time of getting him admitted in the hospital. This shows that Baltej Singh was having one blank paper having thumb impression of Gobind Singh, which according to the respondents, was later on converted into alleged will, Ex.P1. She also stated that Baltej Singh used to reside at Thikriwala and his ration card was of Thikriwala. If Baltej Singh used to serve Gobind Singh, then he must have been living at Village Mander Khurd and his name must have figured in the ration card of Gobind Singh at village Mander Khurd. Her statement, categorically shows that he was not residing at Village Mander Khurd but resided at village Thikriwala. Hence, there is no question that Baltej Singh used to serve Gobind Singh. She next stated that Hamir Kaur was not present at the time of operation. This is unbelievable that the wife was not present at the time of operation. Therefore, it is not proved beyond doubt that the so called thumb impressions were that of Gobind Singh with which PW5, I.B. Bhatnagar, Finger and Handwriting Expert, compared the thumb impressions with that of the thumb impression of Gobind Singh on Ex.P1. Thus, the statement of PW5 is of no use to prove that the will, Ex.P1, contained the thumb impression of Gobind Singh. 15. The respondent has, on the other hand, led evidence to prove that the will, Ex.P1, did not contain the thumb impression of Gobind Singh. DW3, Lal Singh, Patwari, stated that he had brought the Jamabandi for the year 1952-53 and register of mutation. According to his record, the land was mortgaged by Gobind Singh and that land had been re-deemed through mutation No. 1502 sanctioned on 7.4.1957. DW3, Lal Singh, Patwari, stated that he had brought the Jamabandi for the year 1952-53 and register of mutation. According to his record, the land was mortgaged by Gobind Singh and that land had been re-deemed through mutation No. 1502 sanctioned on 7.4.1957. DW4-Bhan Singh, Sarpanch, resident of Mander Khurd stated that he knew Gobind Singh son of Chand Singh. He was also Mukhtiar of Smt. Mukhtiar Kaur daughter of Sucha Singh and Chand Kaur in the consolidation proceedings. He further stated that in his presence Gobind Singh had put his thumb impression during the consolidation proceedings at mark A on Ex.D3 and he had signed it at Mark B as he was Member of Consolidation Advisory Committee of the village. He also stated that the document, Ex.D3, was filed in his presence. He further stated that Hamir Kaur used to serve her husband Gobind Singh and she had cordial relations with her husband. He next stated that Baltej Singh used to visit Gobind Singh some time but he never resided with him. 16. DW1, Harbans Lal, Petition Writer, Sangrur, stated that he had seen the applications Ex.D1 and D2 in the file, Gobind Singh v. Pepsu State and the said applications were scribed by him at the instance of Gobind Singh and Gobind Singh had thumb marked the same in his presence at points S1 and S2. In cross-examination, he stated that he did not know personally Gobind Singh. Even if he did not know Gobind Singh personally, then also does not matter much because it is difficult to believe that on the applications Ex.D1 and D2, the thumb impression of other persons were obtained. At that time, there was no controversy between the parties. Therefore, it will be presumed that these were the thumb impressions of Gobind Singh. DW8, Ujagar Singh, stated that he had seen the document Ex.D3 in which entries were made by him and Gobind Singh had thumb marked it at point S4 in his presence. He further stated that consolidation scheme. Ex.D4 was scribed by him and on the back of page 144, the Haqdarans had thumb marked in his presence. He further stated that on one of the thumb impressions, Gobind Singh was written by him. Therefore, according to DW8, Ujagar Singh, the thumb impressions on Exs.D3 and D4 of Gobind Singh were obtained by him and further he knew Gobind Singh personally. He further stated that on one of the thumb impressions, Gobind Singh was written by him. Therefore, according to DW8, Ujagar Singh, the thumb impressions on Exs.D3 and D4 of Gobind Singh were obtained by him and further he knew Gobind Singh personally. DW5, K.C. Jaidka, Document Expert, Barnala and DW7, K.S. Puri, Document Expert, Patiala, had categorically stated that the alleged thumb impression of Gobind Singh on will, Ex.P1 at point B did not conform with the standard thumb impressions S1 to S7. Meaning thereby, that the thumb impression at point B on will Ex.P1 is not of Gobind Singh. There is nothing to dis- believe the sworn testimony of DW7, K.S. Puri, Document Expert, Patiala, who was a reputed man and had given solid reasons in his report, Ex.DW7/1 for stating that thumb impression marked B on Ex.P1 differs from the thumb impressions S1 to S7. 17. There is other aspect of the matter. It is in evidence that the alleged will was executed at the residential house of Baltej Singh at Thikriwala and at that time Baltej Singh alongwith his family members was present at the place where the alleged will was executed. This shows that Baltej Singh had taken keen part in making the alleged will in which he had received a substantial benefit and this action raises suspicion about the execution of the will which has not been explained by the propounder of the Will. A perusal of the will Ex.P1, shows that the spacing of the lines in 3/4th portion of the writing is wider than the spacing in the last 4-5 lines. The last lines have been narrowed down intentionally. The only inference is that the thumb impression of alleged Gobind Singh already existed on the paper and thereafter the will was manufactured by procuring scribe of the Will, namely, Gurcharan Singh from village Mander Khurd, who was closely related to the appellant and two witnesses of village Thikriwala. The fact that the thumb impression already existed is also proved from the statement of Sham Kaur. She stated in her statement that Baltej Singh had obtained the thumb impression of Gobind Singh on a white blank paper in the hospital when he was admitted and that blank paper was seen by her in the village. Therefore, it is possible that the said paper was converted into will, Ex.P1. 18. She stated in her statement that Baltej Singh had obtained the thumb impression of Gobind Singh on a white blank paper in the hospital when he was admitted and that blank paper was seen by her in the village. Therefore, it is possible that the said paper was converted into will, Ex.P1. 18. In the normal circumstances, if Gobind Singh had wanted to execute the will, then he would have done so either at village Mander Khurd to which he belonged or at Barnala where the Petition Writers were available. The very fact that the alleged will was executed at Village Thikriwala again suggests that he had not executed the will and it is surrounded by suspicious circumstances. 19. All these circumstances, conclusively pointed to the fact that the alleged will dated 20.1.1970, Ex.P1. is surrounded by suspicion. The propounder of the Will had failed to explain the suspicious circumstances surrounding the execution of the will and in establishing that the document which he propounded was the last will and testament of Gobind Singh. In these circumstances, the Honble Supreme Court in Smt. Jaswant Kaur v. Smt. Amrit Kaur and others, AIR 1977 Supreme Court 74 has observed as under :- "In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the courts conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. Held, on facts and circumstances that the propounder had totally failed to discharge the heavy onus of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grand-father. AIR 1975 Punj & Har 377, Reversed; AIR 1959 SC 443, Rel. on." 20. Held, on facts and circumstances that the propounder had totally failed to discharge the heavy onus of explaining the suspicious circumstances surrounding the execution of the will and of establishing that the document which he propounded was the last will and testament of his grand-father. AIR 1975 Punj & Har 377, Reversed; AIR 1959 SC 443, Rel. on." 20. Counsel for the appellant contended that the due execution of the will had been proved from the statement of Gurcharan Singh, PW1, Scribe of the will Ex.P1, PW.2 Jawala Singh and PW3, Amar Singh, attesting witnesses of the will and non-bequeathing of property to the wife does not make the will invalid. For his contention, he has placed reliance on the authority of Supreme Court Smt. Sushila Devi v. Pandit Krishna Kumar Misir and others, AIR 1971 Supreme Court 2236, where it was observed as under :- "If the bequest made in a will appears to be unnatural the court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual. Will written on inferior type of paper and bequeathing most of the property to the son and the husband of the pre-deceased daughter of the testator instead of his only living daughter who was comparatively affluent held not invalid when genuineness of his signature and execution was proved by witnesses - including the scribe and attesting witnesses - who are respectable persons and not found unreliable." 21. In the above-mentioned authority the daughter of the testator was ignored as she was comparatively affluent and the execution of the will was proved by the scribe and attesting witnesses who were respectable persons and not found unreliable. The testator has given reasons for ignoring his only living daughter as she was married and her husband was reasonably well placed in life but in the present case there is no evidence that respondent, Hamir Kaur, was well placed in life. The matter would have been different if Gobind Singh had not left behind his widow and had left behind only married daughters and then would have bequeathed the property in favour of his sisters son. The provision made for her maintenance in the will is vague. In such circumstances, there was no reason to exclude his wife from inheritance especially when they had cordial relations. 22. The provision made for her maintenance in the will is vague. In such circumstances, there was no reason to exclude his wife from inheritance especially when they had cordial relations. 22. For the fore-going reasons, I hold that the will is surrounded in suspicious circumstances and there is no satisfactory evidence on file that Gobind Singh had executed valid will in favour of the appellant on 20.1.1970. As a sequel to the above discussion, the Regular Second Appeal fails and the same is dismissed with costs. Appeal dismissed.