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2001 DIGILAW 574 (PNJ)

Pehalwan Singh v. Laddo Bibi

2001-05-22

M.L.SINGHAL

body2001
JUDGMENT M.L. Singhal, J. - One Mehla Singh was owner of land measuring 76 kanals situated in the area of village Mahantawala, and he was owner of 1/2 share of land measuring 16 kanals situated in the area of village Boor Wala, Tehsil and District Ferozepur as detailed in the heading of the plaint. He had 3 sons, Pehalwan Singh, Jit Singh and Sucha Singh. Mehla Singh died intestate leaving behind Pehalwan Singh, Jit Singh and Sucha Singh. After the death of Mehla Singh, his inheritance was mutated equally in the name of Pehalwan Singh, Jit Singh and Sucha Singh. Sucha Singh died. After the death of Sucha Singh, his 1/3rd share in the inheritance of Mehla Singh was mutated in the names of Pehalwan Singh and Jit Singh defendants. On these allegations, Smt. Laddo Bibi widow; minors Shanto Bibi, Swarnjit daughters; minors Harmit Singh and Gurdip Singh sons filed suit for declaration against Pehalwan Singh and Jit Singh sons of Mehla Singh to the effect that they, in equal share, are joint owners in joint possession to the extent of 1/3rd share of land measuring 76 kanals and 1/6th share of land measuring 16 kanals as detailed in the heading of the plaint on the basis of natural succession being the wife and children of Mehla Singhs son Sucha Singh deceased. 2. Pehalwan Singh, defendant No. 1 contested the suit of the plaintiffs. It was urged that he became owner of the suit land on the basis of will dated 14.6.1979 executed by said Mehla Singh. Mehla Singh died on 27.8.1979. Since then, he is in possession. His possession is open, hostile, uninterrupted and to the knowledge of the plaintiffs. He has thus become owner of the suit land by adverse possession. Suit was barred by time. After the death of Mehla Singh, mutation was entered and sanctioned in his name on the basis of will Ex.D1 dated 14.6.1979 executed by Mehla Singh in his favour. It was a valid and genuine will executed by Mehla Singh. Jit Singh and Sucha Singh were present in mutation proceedings. They did not raise any objection when mutation on the basis of said will was sanctioned in favour of Pehalwan Singh, defendant No. 1. It was a valid and genuine will executed by Mehla Singh. Jit Singh and Sucha Singh were present in mutation proceedings. They did not raise any objection when mutation on the basis of said will was sanctioned in favour of Pehalwan Singh, defendant No. 1. Sucha Singh and Jit Singh gave their consent to the sanction of mutation in favour of Pehalwan Singh, defendant No. 1 while admitting the will to be genuine, valid and binding between the parties. Jit Singh defendant No. 2 also contested the suit. Jit Singh filed written statement. He admitted the will dated 14.6.1979 to have been validly and genuinely executed in favour of Pehalwan Singh, defendant No. 1. He stated that mutation was correctly entered and sanctioned in favour of Pehalwan Singh, defendant No. 1 by the revenue authorities who gave effect to the will dated 14.6.1979 which had been validly and genuinely executed by his father Mehla Singh. He and Sucha Singh were present in mutation proceedings. They did not raise any objection when mutation was sanctioned in favour of Pehalwan Singh, defendant No. 1 to their exclusion on the basis of will dated 14.6.1979. Possession of Pehalwan Singh, defendant No. 1 is open, hostile, uninterrupted and to the knowledge of the plaintiffs since 27.8.1979. Pehalwan Singh, defendant No. 1 has become owner of the suit land by adverse possession. Plaintiffs suit is barred by time. On these pleadings of the parties, following issues were framed :- 1. Whether the plaintiffs are entitled to declaration as prayed for ? OPP 2. Whether the suit is not maintainable ? OPD 3. Whether the suit is time barred ? OPD 4. Relief. 3. Vide order dated 26.10.1994, plaintiffs suit was decreed with costs by Subordinate Judge Second Class, Ferozepur in view of his finding that Mehla Singh did not execute any valid and genuine will in favour of Pehalwan Singh, defendant No. 1 as set up by Pehalwan Singh, defendant No. 1 and as such the plaintiffs are entitled to 1/3rd share in the inheritance of Mehla Singh. Plaintiffs suit was found to be within time. Plaintiffs suit was found to be maintainable. 4. Pehalwan Singh, defendant No. 1 went in appeal which was dismissed by Additional District Judge, Ferozepur vide order dated 10.1.1998. Still not satisfied, Pehalwan Singh, defendant No. 1 has come up in further appeal to this Court. 5. Plaintiffs suit was found to be within time. Plaintiffs suit was found to be maintainable. 4. Pehalwan Singh, defendant No. 1 went in appeal which was dismissed by Additional District Judge, Ferozepur vide order dated 10.1.1998. Still not satisfied, Pehalwan Singh, defendant No. 1 has come up in further appeal to this Court. 5. I have heard the learned Counsel for the parties and have gone through the record. 6. It was submitted by the learned Counsel for the appellant-Pehalwan Singh, defendant No. 1 that Mehla Singh executed will Ex.D1 dated 14.6.1979 in his favour whereby he bequeathed his property to him to the exclusion of his sons Sucha Singh and Jit Singh. Jit Singh DW1 stated that he is sarpanch of the village. He has known both the parties. He had known Mehla Singh also. Mehla Singh died when he was 70 plus. On 14.6.1979, he had executed will Ex.D1 in favour of Pehalwan Singh because he was putting up with Pehalwan Singh. Jit Singh and Sucha Singh were living separate from him. Will Ex.D1 dated 14.6.1979 was scribed at the instance of Mehla Singh by Roshan Lal. Will Ex.D1 dated 14.6.1979 was read out to Mehla Singh who admitted the same to be correct and who thumb marked it in token of its correctness in his presence and in the presence of one Sher Chand. He and Sher Chand attested the will in the presence of Mehla Singh on Mehla Singhs admitting the same to be correct. Jit singh and Sucha Singh were putting up at village Patrian Wala while Mehla Singh and Pehalwan Singh were putting up at village Boor Wala. He stated that mutation Ex.D2 was sanctioned in favour of Pehalwan Singh by the Naib Tehsildar. At the time of sanctioning of mutation, he, Sucha Singh, Jit Singh, Lambardar Mohri Ram appeared. He stated that Sucha Singh and Jit Singh admitted the will to be correct before the Naib Tehsildar. He stated that Mehla Singh was in sound disposing mind at the time of execution of the Will. He told them that he had given cash to his other sons and had separated them. Sher Singh also stated to the same effect. 7. Pehalwan Singh DW3 stated that Mehla Singh was his father. He died at the age of 75-80 years. He was resinding with him at village Boor Wala. He looked after him. He told them that he had given cash to his other sons and had separated them. Sher Singh also stated to the same effect. 7. Pehalwan Singh DW3 stated that Mehla Singh was his father. He died at the age of 75-80 years. He was resinding with him at village Boor Wala. He looked after him. He was holding general power of attorney during his life time. Mehla Singh had two others sons named Jit Singh and Sucha Singh. Mehla Singh had executed Will Ex.D1 dated 14.6.1979 in his favour to the exclusion of Jit singh and Sucha Singh. He had excluded them because he had separated them and they were residing at village Patrian Wala. Mehla Singh had given money to his other sons and separated them from the family. He performed the last rites of Mehla Singh. At the time of sanctioning of mutation Sucha Singh, Jit Singh, Roshan Lal, Jit Singh Sarpanch, Sher Chand and Mohri Ram Lambardar were present. Sucha Singh and Jit Singh did not raise any objection to the mutation being sanctioned on the basis of Will Ex.D1 dated 14.6.1979 in his favour. 8. Jit Singh defendant, DW4 supported the execution of the Will Ex.D1 dated 14.6.1979. He stated that he, Sucha Singh, Pehalwan Singh, Jit Singh Sarpanch, Roshan Lal and Mohri Ram Lambardar were present at the time of sanctioning of mutation. He and Sucha Singh raised no objection to the sanctioning of mutation on the basis of Will Ex.D1 dated 14.6.1979 in favour of Pehalwan Singh. Mehla Singh had separated him and Sucha Singh from the family, as such they had nothing to do with the estate of Mehla Singh. 9. Laddo Bibi PW1 stated that her husband Sucha Singh was one of the sons of Mehla Singh. Mehla Singh executed no Will in favour of Pehalwan Singh. Wills set up by Mehla Singh is false, fabricated and bogus. She stated that Sucha Singh did not appear before any revenue Officer at the time of sanctioning of mutation of inheritance of Mehla Singh. She came to know about sanctioning of mutation of the inheritance of Mehla Singh about a month prior to the institution of this suit. Her husband was entitled to 1/3rd share in the inheritance of Mehla Singh. She stated that they are residing at village Patrian Wala. She, her husband and the defendants looked after Mehla Singh. 10. She came to know about sanctioning of mutation of the inheritance of Mehla Singh about a month prior to the institution of this suit. Her husband was entitled to 1/3rd share in the inheritance of Mehla Singh. She stated that they are residing at village Patrian Wala. She, her husband and the defendants looked after Mehla Singh. 10. Roshan Lal PW2 who is the scribe of this will stated that Jit Singh Sarpanch and Pehalwan Singh came to his house. Jit Singh Sarpanch told him that he should scribe a will of Mehla Singh. He told them that how could he scribe will when Mehla Singh was not with them. Thereupon, Jit Singh told him that he was Sarpanch of the village. He should scribe the will. He will enter the will in the resolution book of the panchayat. Sher Chand was not present at that time. Jit Singh Sarpanch did not sign the will in his presence. Mehla Singh did not thumb mark the will in his presence. Jit Singh told him that he would get the thumb impression of Mehla Singh on the will at the time of entering the will in the resolution book of the panchayat. Roshan Lal further stated that Jit Singh dictated the will to him and he scribed the will as dictated to him by Jit Singh Sarpanch. After he had scribed the will, Jit Singh Sarpanch asked him that he should put his signatures on the will. He accordingly put his signatures on the will. 11. Will Ex.D1 dated 14.6.1979 is unregistered. Mehla Singh remained alive for 2 to 2-1/2 months after the execution of the so-called will. Will Ex.D1 dated 14.6.1979 was not got registered. Jit Singh and Pehalwan Singh are also the sons of Mehla Singh. He has given no reason to deprive Sucha Singh and Jit Singh of his inheritance. There is no recital in will Ex.D1 dated 14.6.1979 that he had separated his sons Sucha Singh and Jit Singh after giving them some land or cash. There is no convincing evidence that Sucha Singh and Jit Singh were present at the time of the sanctioning of mutation and they have given their consent to the mutation being sanctioned on the basis of will Ex.D1 dated 14.6.1979. There is no convincing evidence that Sucha Singh and Jit Singh were present at the time of the sanctioning of mutation and they have given their consent to the mutation being sanctioned on the basis of will Ex.D1 dated 14.6.1979. How could Sucha Singh and Jit Singh give consent to the sanctioning of mutation in favour of Pehalwan Singh alone to their exclusion when they did not have any property to bank upon for their livelihood. Jit Singh defendant has nowhere stated that he and Sucha Singh had been given some cash or land by Mehla Singh and he had separated them after giving them some cash or land. Land in suit was the be-all and end-all of the sons of Mehla Singh. How could Sucha Singh and Jit Singh digest their exclusion from inheriting Mehla Singh when they had known that this land was the be-all and end-all of Pehalwan Singh, Sucha Singh and Jit Singh. Will is a solemn document. It comes into play after the death of the testator. Since will comes into play after the death of the testator, who is not before the court to tell the court about his wish, the court has to satisfy its conscience before accepting the will and giving effect to it regarding its genuineness. It is the duty of the court to make all efforts to ascertain the real intention of the testator by reading the will as a whole. In this case, Mehla Singh had excluded his two sons. Onus to prove the genuineness of the will was very heavy on Pehalwan Singh who sought to exclude his other two brothers from inheriting his father. It is true that the attesting witnesses cannot be permitted to hold the propounder of the will to ransom, but it is equally true that the court has to ascertain the true intention of the testator. For ascertaining the true intention of the testator, the court has to have a deep insight into what the witnesses say and what the testator intended to do. In this case, Mehla Singh is stated to have excluded his two sons Sucha Singh and Jit Singh. He has, however, given no reason why he has excluding his two sons Sucha Singh and Jit Singh and making Pehalwan Singh the cynosure of his eyes. In this case, Mehla Singh is stated to have excluded his two sons Sucha Singh and Jit Singh. He has, however, given no reason why he has excluding his two sons Sucha Singh and Jit Singh and making Pehalwan Singh the cynosure of his eyes. He has nowhere stated that Sucha Singh and Jit Singh are well provided for and he had given them enough and had separated them. He did not stated anything in the will which could be suggestive of the fact that he had any feeling of animosity towards Sucha Singh and Jit Singh. If Mehla Singh really wanted to make a bequest in favour of his Pehalwan Singh to the exclusion of Sucha Singh and Jit Singh, he could go to a professional scribe and have the will scribed from him. He could have got the will registered. Fact that he did not get the will scribed from a professional scribe and he did not get the will registered from the Sub-Registrar, particularly when he remained alive for 2 to 2-1/2 months impinges upon the genuineness and validity of the will more so, when he has given no reason to exclude his sons Sucha singh and Jit Singh for whom also this land was the be-all and end-all. It appears that Jit Singh Sarpanch was the brain behind will Ex.D1 dated 14.6.1979 which Mehla Singh did not have the mind and the will to execute. 12. Will Ex.D1 dated 14.6.1979 was not shown the light of the day soon after the death of Mehla Singh. Mutation was entered by the patwari on 22.3.1982. It was sanctioned on 20.1.1984 by AC Second Grade, Ferozepur. If will Ex.D1 dated 14.6.1979 were genuine, Pehalwan Singh would have taken the will to the patwari soon after 27.8.1979 and got the mutation entered. 13. Will Ex.D1 dated 14.6.1979 was found concurrently by the two courts below to have not been genuinely and validly executed by Mehla Singh. It was on fact that both the courts below have found against the will. Concurrent findings of fact returned by the courts below on consideration of evidence cannot be gone into by the High Court particularly when the consideration of evidence is based on equity, justice, fair play and is in accord with the principles which govern the appreciation of evidence respecting the execution of wills. 14. Concurrent findings of fact returned by the courts below on consideration of evidence cannot be gone into by the High Court particularly when the consideration of evidence is based on equity, justice, fair play and is in accord with the principles which govern the appreciation of evidence respecting the execution of wills. 14. Plaintiffs suit was within time as cause of action to them arose when Pehalwan Singh chose to act adversely to the interest of Sucha Singh and Jit Singh. Pehalwan Singh got the mutation entered on 18.3.1982. They got cause of action on 20.4.1984 when the mutation was sanctioned. Prior to 18.3.1982, the plaintiffs were believing the inheritance to have devolved upon them equally. There is no limitation so far as suit based on inheritance is concerned. It is for other party to plead and prove adverse possession. In this case, the adverse act commenced on 18.3.1982 or on 20.1.1984 and, therefore, suit instituted in 1992 is well within limitation. For the reasons aforesaid, this appeal fails and is dismissed. No costs. Appeal dismissed.