Research › Search › Judgment

Punjab High Court · body

2002 DIGILAW 1287 (PNJ)

Harbans Kaur v. Sukhdev Kaur

2002-11-22

R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. Unsuccessful plaintiff Smt. Harbans Kaur daughter of Sh. Gurdial Singh (appellant herein) has filed the present regular second appeal and it has been directed against the judgment and decree dated 27.2.1982 passed by the Court of Additional District Jude, Bhatinda who affirmed the judgment and decree dated 3.11.1978 passed by the Court of Sub Judge, IIIrd Class, Bhatinda, who dismissed the suit of the plaintiff-appellant Smt. Harbans Kaur for declaration and joint possession. 2. The case set up by the plaintiff-appellant in the trial Court was that she is the daughter of Sh. Gurdial Singh (deceased) who was the owner in possession of 1/2 share in the land measuring 1850 kanals 16 marlas situated within the revenue estate of village Chathewala, fully described in the head note of the plaint. The said Sh. Gurdial Singh had two wives, namely Gurdial Kaur (defendant No. 4) and Smt. Nand Kaur. Defendant Nos. 1, 2 and 3 Sukhdev Kaur, Bir Kaur and Dass Kaur are the daughters from defendant No. 4 Smt. Gurdial Kaur, whereas the plaintiff is the daughter from Smt. Nand Kaur who has expired. Sh. Gurdial Singh aforesaid expired on 2.10.1971. Out of his 1/2 share in the suit land, Sh. Gurdial Singh had given l/4th share to defendant No. 4 during his life time and kept with himself 3/8th share. After the death of Gurdial Singh, the plaintiff and defendant Nos. 1, 2 and 3 are entitled to inherit the property in equal shares, but defendant No. 4 got the mutation sanctioned in favour of defendant Nos. 1 to 3 on the basis of Will dated 3.12.1963 allegedly executed by Sh. Gurdial Singh. According to the plaintiff, the said Will dated 3.12.1963 had been executed by Sh. Gurdial Singh through undue influence and coercion. He was not in sound and disposing mind at the time of the execution of the Will. The Will has not been executed by Sh. Gurdial Singh in a voluntary manner and, as such, it is not binding upon the plaintiff/appellant. Resultantly, the plaintiff has made prayer that decree for joint possession of 3/32 share in the suit land be passed in her favour with a declaration that mutation No. 3104 dated 9.5.1973 sanctioned in favour of defendant Nos. Gurdial Singh in a voluntary manner and, as such, it is not binding upon the plaintiff/appellant. Resultantly, the plaintiff has made prayer that decree for joint possession of 3/32 share in the suit land be passed in her favour with a declaration that mutation No. 3104 dated 9.5.1973 sanctioned in favour of defendant Nos. 1 to 3 on the basis of the Will dated 3.12.1963 is void, ineffective and does not bind the interest of the plaintiff. 3. The suit was contested by defendant Nos. 1 to 4. They even asserted that plaintiff Smt. Harbans Kaur is not the daughter of Sh. Gurdial Singh born to Smt. Nand Kaur and, as such, she had no locus standi to file the suit. It was also pleaded by the contesting defendants that the suit is bad for non-joinder of necessary parties and mis-joinder of parties. The suit has been filed by the plaintiff in collusion with defendant Nos. 5 to 10. Plaintiff was stopped from challenging the Will. Sh. Gurdial Singh deceased was not the owner of the land to the extent as alleged by the plaintiff. 4. On merits it was the case of defendant Nos. 1 to 4 that the Will had been executed by Sh. Gurdial Singh in favour of defendant Nos. 1 to 3 in a valid manner. With these pleas, these defendants made a prayer for the dismissal of the suit. 5. The learned trial Court from the pleadings of the parties, framed the following issues: (1) Whether Smt. Harbans Kaur plaintiff is the daughter of Sh. Gurdial Singh deceased? OPP (2) Whether Gurdial Singh deceased had executed a Will dated 3.12.1963 in favour of defendant Nos. 1, 2 and 3? OPD (3) Relief. 6. The parties led oral and documentary evidence in support of their case and on the conclusion of the trial, the learned trial Court decided issue No. 1 in favour of the plaintiff by holding that she is the daughter of Sh. Gurdial Singh. However, issue No. 2 was decided against the plaintiff and it was held that Will dated 3.12.1963 executed in favour of defendant Nos. 1 to 3 is valid and it has been executed in sound and disposing mind. In view of the finding given by the trial Court on issue No. 2, the suit of plaintiff Smt. Harbans Kaur was dismissed. 7. 1 to 3 is valid and it has been executed in sound and disposing mind. In view of the finding given by the trial Court on issue No. 2, the suit of plaintiff Smt. Harbans Kaur was dismissed. 7. Aggrieved by the judgment and decree of the learned trial Court, plaintiff Harbans Kaur filed first appeal before the Court of Additional District Judge, Bhatinda who vide his judgment and decree dated 27.2.1982 dismissed her appeal by holding that the Will is genuine and the reasons for dismissal of the appeal have been given in paragraphs 6 to 8 of the judgment; "Now in the present case we are concerned only whether Gurdial Singh deceased has executed a Will on 3.12.1963 in favour of defendants No. 1 to 3. The Will is Ex.D1 on the record and it is registered document attested by Hardam Singh DW1 and Gurbachan Singh DW/4. It was scribed by Hans Raj DW2. All the three witnesses have deposed that Gurdial Singh deceased had thumb marked the Will in their presence after fully understanding the contents thereof in his free and sound disposing mind. The document was read out to Gurdial Singh in their presence and he thumb marked the same after admitting the same to be correct. DW3 is Mr. Sukhdev Singh, Advocate who was working as Sub Registrar, Bhatinda in those days. According to him, the Will Ex.D1 was read out to Gurdial Singh and he admitting the same to be correct, thumb marked the same. This Will was attested by Hardam Singh and Gurbachan Singh. DW1 Hardam Singh has stated that Gurdial Singh was personally known to him. The learned counsel for the appellant has vehemently argued that the Will is surrounded by suspicious circumstances. It is a settled law that unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not, and this aspect naturally introduces an element of solemnity in the decision of the questions as to whether the document propounded is proved to the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, that the condition of the testators mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator. The dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the Will may otherwise indicate that the said disposition may not be result of the testators free will and mind in such cases the Court would naturally except that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator.The presence of such suspicious circumstances naturally tends to meek the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. Jn order to establish whether the Will was propounded or produced was last Will of departed testator, suspicious circumstances which could be in the execution of the Will are as under: a) genuineness of signature of testator; b) condition of testators mind. c) dispositions made in Will being unnatural improbable or unfair; d) indication in Will that testators mind was not free; e) that the propounder has taken himself part in execution of Will which confers substantial benefit on him. c) dispositions made in Will being unnatural improbable or unfair; d) indication in Will that testators mind was not free; e) that the propounder has taken himself part in execution of Will which confers substantial benefit on him. All these can be said to be the suspicious circumstances. In the present case the learned counsel for the appellant has vehemently argued that the Will was got executed by Gurdial Singh by Gurdial Kaur defendant No. 4 mother of defendant Nos. 1 to 3 by putting undue influence, coercion and also by administering intoxicating thing such as Bhang, Opium and wine etc. Gurdial Singh was very much under the influence of Gurdial Kaur who was a dare devil lady who has got killed earlier Such a Singh and Pardhan Kaur maternal uncle and mother of Gurdial Singh and she was threatening Gurdial Singh also that in case he will not execute the Will he will also meet the same fate. This contention of the learned counsel to my mind has no basis, first it cannot be said that Gurdial Singh was not of a sound state disposing mind, he was acting as a lambardar of the village and was discharging his duties properly. Earlier he had executed a gift deed to favour of Gurdial Kaur and that gift was not challenged by anybody which shows that Gurdial Singh had a prudent mind and knew his good and bad, so it can not be said that Gurdial Singh was not of a sound and disposing state of mind and the will was not executed by him in that capacity. The will was executed as back as 1983 and he remained alive for a sufficient long time and it was the duty of the plaintiff/appellant to have proved that at the time of the execution of the Will the testamentary capacity of Gurdial Singh was not rational. No presumption can be raised to the testamentary capacity unless it is fully established by the person who alleges the same. As I have already discussed above that Gurdial Singh remained alive for a quite long time after the execution of the Will which goes to show that the was of a sound deposing mind when the executed the Will. No presumption can be raised to the testamentary capacity unless it is fully established by the person who alleges the same. As I have already discussed above that Gurdial Singh remained alive for a quite long time after the execution of the Will which goes to show that the was of a sound deposing mind when the executed the Will. In the similar circumstances the Division Bench of own Honble High court has held in a reported case A.I.R. 1961 Punjab 411 in case Makhan Mal L. Ram Ditta Mal and Ors., v. Mst. Pritam Devi and Ors., that where the testator lived for nearly there years after the execution of the Will, and the statements of the attesting witnesses indicated that he was in sound disposing mind when he executed the Will then in such like circumstances the long time would be sufficient to show that there was no undue influence or lack of a proper disposive mind. It is a registered document and registration of the Will strengthens its validity and also the registration of a document goes a long way to show that the testator of the document was of a sound disposing mind when he executed it. So, far as the influence is concerned, this fact is belied by the plaintiffs own case when it has come in the evidence that Gurdial Kaur allowed Gurdial Singh to marry second time with Nand Kaur and from whose loins the present plaintiff was born. Had she that influence over Gurdial Singh then she would not allow him to marry of the second time. It has to be shown that the person said to have exercised undue influence was in a position to exercise under influence. The influence which as affectionate wife exerts on her loving husband who in the free exercise of his volition executes a Will in her favour- cannot be said that he has done so under undue influence. There is no evidence with regard to the administering of intoxicating things. 8. The next argument addressed by the learned counsel for the appellant is that no provision was made as regard to the plaintiff with whom Gurdial Singh had a great love. There is no evidence with regard to the administering of intoxicating things. 8. The next argument addressed by the learned counsel for the appellant is that no provision was made as regard to the plaintiff with whom Gurdial Singh had a great love. To substantiate this argument, the learned counsel has argued that 6 years prior to the execution of the Will Gurdial Singh had filed an application under Section 25 of the Guardian and Wards Act to take her (plaintiff) from her mother, so there is nothing on the record that what prevented him thereafter not to make any provision for the maintenance and marriage expenses of the plaintiff. No doubt it is true that where a testator deprives his legal heirs it constitutes a suspicious circumstance which must have to be explained by the propounder of the Will. In the present case the propounder has not deprived the plaintiff from his property, but even has failed to mention her name in the Will to be his daughter. This depends upon the nature and the mind working of the testator when he had executed the document. Merely that the testator has made no provision for the plaintiff is no ground to show that the Will was not genuine. The Will is an instrument vide which the legal heirs are generally deprived and the appointment of another heir is made correct to the executors mind. As I have already discussed above that the present Will is a registered document which has been proved by both the attesting witnesses, the scribe and the Sub Registrar who have no ill will against the plaintiff and they are in no way interested with the defendants and they are totally independant witness and their statements as regard the execution of the Will has gone unchallenged. I am of the considered view that the defendants have proved by best evidence that the thumb impression on the Will was that of Gurdial Singh which he put on with his free and sound disposing mind without undue influence from any quarter." Still not satisfied with the decisions, the present regular second appeal by the unsuccessful plaintiff. 8 I have heard Sh. Rajive Bhalla on behalf of the appellant and Sh. Grwal assisted by Sh. Mann on behalf of the respondents and with their assistance, have gone through the record of the case. 9. 8 I have heard Sh. Rajive Bhalla on behalf of the appellant and Sh. Grwal assisted by Sh. Mann on behalf of the respondents and with their assistance, have gone through the record of the case. 9. Before me the learned counsel for the appellant has assailed the finding of the Courts below on issue No. 2 and I shall confine my discussion on that issue. The onus was upon the propounder of the Will Whether Sh. Gurdial Singh had executed the Will dated 3.12.1963. It is a registered Will. Admittedly, Gurdial Singh died on 2.10.1971. The Will is Exhibit D-1 on the record. There are two attesting witnesses of this Will namely Hardam Singh DW-1 and Gurbachan Singh DW4. It was scribed by Sh. Hans Raj DW2. It has come in the statements of the attesting witnesses that Gurdial Singh deceased had executed the Will in their presence. He thumbed marked the same in token of correctness after fully understanding and accepting the contents of the Will. He was in sound and disposing mind. The contents of the Will were read over and explained to the testator or who thumb marked the same in token of its correctness. The Will was presented before Sub-Registrar Sukhdev Singh and this witness too had deposed that Will Ex.D-1 was read over and explained to Sh. Gurdial Singh who admitted the same to be correct and then thumb-marked in his presence. From the statements of Hardam Singh and Gurbachan DW1 and DW4, respectively, I am fully convinced that Sh. Gurdial Singh was in sound and disposing mind when be executed the Will in favour of his three daughters born to Smt. Gurdial Kaur defendant No. 4. 10. Learned Counsel appearing on behalf of the appellant submitted that Sh. Gurdial Singh was not in sound and disposing mind. It has been admitted by the witnesses that he was a simpleton, but I am not convinced with the submissions raised by Sh. Rajive Bhalla in view of the unanimous statements of the two attesting witnesses, besides the statement of Sh. Sukhdev Singh Sub-Registrar, who appeared as DW-3, and deposed that the deceased was in sound and disposing mind and he was in a position to form a rational judgment. Rajive Bhalla in view of the unanimous statements of the two attesting witnesses, besides the statement of Sh. Sukhdev Singh Sub-Registrar, who appeared as DW-3, and deposed that the deceased was in sound and disposing mind and he was in a position to form a rational judgment. At the cost of repetition, I may say hat it is a registered Will and there was a gap of about eight years between the date of execution of the Will and the date of death of the deceased. It is true that the onus lies upon the propounder to allay suspicious circumstances surrounding the Will but,in the present case, Sh. Gurdial Singh had admittedly two wives and he made an option and bequeathed the property in favour of his three daughters who were born to Smt. Gurdial Kaur, who was his first wife. It is the case set up by the plaintiff that Will Ex.D-1 has been executed by Sh. Gurdial Singh by putting undue influence, coercion and by administering intoxicating thing to the deceased. The particulars of undue influence, coercion or fraud had not been pleaded. Secondly, it is established on the record that Gurdial Singh was acting as a Lambardar of the village and he was discharging his duties. Moreover, said Sh. Gurdial Singh executed a gift deed in favour of Smt.Gurdial Kaur and that gift deed had never been challenged by the plaintiff suggesting that Gurdial was well aware about his actions and the consequences of his acts. 11. It is the admitted case of the plaintiff that she is the daughter of Nand Kaur who was the second wife of Sh, Gurdial Singh. Apparently, Sh. Gurdial Singh has no male issue from the womb of Smt.Gurdial Kaur, this was the reason he married to Nand Kaur. It has come in evidence that Smt. Gurdial Kaur allowed Sh. Gurdial Singh to marry second time with Smt. Nand Kaur. In such a situation, it cannot be said that Gurdial Singh was under the influence of Smt. Gurdial Kaur. 12. Sh. Rajive Bhalla, learned counsel appearing for the appellant, vehemently submitted that admittedly Smt. Nand Kaur was the second wife of Sh. Gurdial Singh and, in these circumstances, he should have made some provision for the maintenance of Smt. Nand Kaur with whom he had a great love and affection. 12. Sh. Rajive Bhalla, learned counsel appearing for the appellant, vehemently submitted that admittedly Smt. Nand Kaur was the second wife of Sh. Gurdial Singh and, in these circumstances, he should have made some provision for the maintenance of Smt. Nand Kaur with whom he had a great love and affection. It was also submitted that in the Will Ex.D-1 there is no mention of the plaintiff nor any provision was made in the Will for the plaintiff. Mr. Bhalla submitted that the above would show that Gurdial Singh was under the direct influence of Smt. Gurdial Kaur. I am no convinced with this submission. Rather, the evidence on record is that Gurdial Singh earlier filed an application under Section 25 of the Gurdian and Wards Act against Smt. Nand Kaur suggesting that he was not having cordial relations with Smt. Nand Kaur. He wanted to deprive Smt. Nand Kaur and her daughter Harbans Kaur of his property. Perhaps,this is reason that Gurdial Singh became more inclined towards the children of Gurdial Kaur. The point which survives for determination is that so long the Will is not surrounded by suspicious circumstances, it cannot be set aside. As we all know that through the Will, a line of succession is adopted by the deceased and the wish of the deceased cannot be disturbed specially when the Will is a registered one and is not surrounded by any suspicious circumstances. 13. Resultantly, I do not see any merit in this appeal and by affirming the judgment and decrees of the Courts below, the present appeal is hereby dismissed with no order as to costs.