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2002 DIGILAW 181 (PNJ)

Parshada Singh v. Mewa Singh

2002-02-11

V.K.BALI

body2002
Judgment 1. The dispute herein pertains to the estate of Smt. Nandi widow of Chhaju. Whereas pitted on one side are plaintiffs, who are her grand sons and grand daughter, namely, Bhag Singh, Mewa Singh and Sahib Kaur, on the other are sons of brother of Chhaju, husband of Nandi. Plaintiffs, who are grand sons and daughter of Smt. Nandi endeavoured to succeed on the strength of succession,whereas the other side propounded a Will, said to have been executed by the original owner, Smt. Nandi. 2. Contest between the parties inter se, as mentioned above, would be reflected from the issues that came to be framed. The same read thus :- 1. Whether the house in suit belongs to Smt. Nandi as alleged in para No. 1 of the plaint? OPP. 2. Whether the plaintiffs are the sons and daughters of Smt. Nandi daughter of Norati as alleged in para No. 3 of the plaint? OPP. 3. Whether Smt. Nandi executed a valid Will in favour of the defendants as alleged in para No. 7 of the written statement, if so, to what effect? OPD. 4. Whether the suit is not within time? OPD. 5. Whether the suit is properly valued for purposes of the Court fee and jurisdiction? OPP. 6. Whether the suit is false and the defendants are entitled to special costs? I OPD 7. Relief. 3. The suit instituted by plaintiffs was partly decreed insofar as it pertained to land in dispute by holding that they were legal heirs of Nandi as specified in clause (a) of sub-section (1) of S. 15 of the Hindu Succession Act, 1956, being sons and daughter of pre-deceased daughter of Smt. Nandi and were entitled to succeed her estate in preference to the defendants who fall in clause (b) of the said Section. The suit filed by the plaintiffs, insofar as house is concerned, was, however, dismissed. Constrained, defendants filed an appeal which was dismissed by learned Additional District Judge, Ambala vide orders dated 19/11/1983 thus, confirming the judgment and decree passed by the trial Court. 4. The admitted facts of the case reveal that Nandi widow of Chhaju Ram the owner of the suit property. She had a daughter namely Norati. The daughter of Nandi namely Norati pre-deceased her mother. She died in 1941 whereas Nandi died in 1967. 4. The admitted facts of the case reveal that Nandi widow of Chhaju Ram the owner of the suit property. She had a daughter namely Norati. The daughter of Nandi namely Norati pre-deceased her mother. She died in 1941 whereas Nandi died in 1967. As mentioned above, Bhag Singh and Mewa Singh are sons of Norati whereas Sahib Kaur is daughter of Norati. The mutation with regard to estate of Nandi came to be mutated in favour of defendants, Teja Singh and Parshada Singh sons of Rattan Singh and as mentioned above, Rattan Singh was brother of Chhaju Ram husband of Nandi. Their claim, based on the Will has since been discarded by both the Courts below. The appellate Court while examining the validity of the Will, propounded by the plaintiffs observed as follows :- "DW Teja Singh has deposed that Harbans Lal the scribe of the Will first prepared a rough draft on the dictation of Shrimati Nandi and then scribed the Will from that draft. However, Bir Singh has deposed that Harbans Ltd. scribed the Will at the initiation of Nandi and also at the dictation of Teja and Parshada the propounders of the Will. Again from the statement of DW Bir Singh it is plainly clear that both the propounders of the Will Teja Singh and Parshada Singh were present at the time of the execution of the Will. But Teja Singh appearing as DW 2 has stated in his cross-examination that he alone was present and that Parshada was not present at the time of the execution of the Will. Citing another instance, DW Bir Singh himself has also blown hot and cold in the same breath to the disadvantage of the defendants-appellants. In his examination in chief he stated that the Will was written at the dictation of Nandi as also at the dictation of Teja Singh and Parshada. In answer to a Court question, he took a somer sault and deposed that Nandi all the time sat as a silent spectator and in fact she did not know even anything about that. 14. DW Bir Singh has tried to please both the parties to the appeal by adopting a double edged weapon. In answer to a Court question, he took a somer sault and deposed that Nandi all the time sat as a silent spectator and in fact she did not know even anything about that. 14. DW Bir Singh has tried to please both the parties to the appeal by adopting a double edged weapon. He has deposed that at the time Nandi thumb marked the Will he was present where as Kirpa Ram the other attesting witness had left the place and gone out to make water and when Kirpa Ram came back the witness himself went out to make water. Obviously by adopting a double standard Bir Singh DW has rendered himself as an unreliable and untrustworthy witness and his evidence hardly inspires confidence. 15. Critically appreciating the evidence of the appellants Shri Bakhat Singh advocate submitted that the execution of the alleged Will is surrounded by suspicious circumstances raising a doubt as to the genuineness of the Will and as to whether its testator acted of her own free Will and whether the Will is the last Will of the testator. The propounders of the Will have miserably failed to remove all these suspicious circumstances. Such suspicious circumstances surreounding the Will are mentioned below:- I. The Will in dispute lacks proper attestation as required under S. 63 of the Indian Succession Act. The section required that each of the attesting witness has been the testator signed or thumb marking the Will. However, in the instant case, it did not so happen. The only attesting witness to the Will examined in the court is DW1 Bir Singh. He has categorically stated that at that time of Shrimati Nandi thumb marking the Will, Kirpa Ram the other attesting witness of the Will had gone to make water. Obviously this shows that Kirpa Ram had not seen Nandi thumb marking the Will. (II) The next suspicious circumstance surrounding the Will is that the profounder of the Will Teja Singh took a prominent part in the execution of the Will which confers substantial benefit on it. DW Bir Singh has deposed that Teja Singh and Parshada Singh the propounders of the Will were present at the time of its execution and the scribe scribed the Will at the behest of Nandi as also at the behest of Teja and Parshada. DW Bir Singh has deposed that Teja Singh and Parshada Singh the propounders of the Will were present at the time of its execution and the scribe scribed the Will at the behest of Nandi as also at the behest of Teja and Parshada. In his cross-examination, Bir Singh has further deposed that Teja and Parshada asked the scribe to write the Will and Nandi just sat there observing complete silence. He made the position further clear when in answer to a Court question. Bir Singh stated that Nandi all the time sat silently knowing nothing about all those things though she thumb marked the Will. (III) There is another circumstance which raises suspicion about the genuineness of the Will. Both the attesting witnesses of the Will namely Bir Singh ad Kirpa Ram did not belong to village Chaurmastpur. It is not understood as to why they were chosen in preference to other respectable persons of the locality to attest the Will. The explanation offered by Teja Singh one of the propounder of the Will that one lambardar of village Chaurmastpur was undergoing eyes treatment and the other had since died is not convincing and is far from satisfactory. If either of the lambardars of the locality was not available some other respectable persons should have been joined. It is not believable that the lambardar would have fallen ill just coinciding with the timings of the execution of the Will-Bir Singh DW 1 is a person of different village and for that matter Kirpa Ram a resident of village about 15 kilometers from the village of the parties do not look to be natural witnesses and their preference to the persons of the locality goes a long way to create doubt about the genuineness of the Will. 16. No doubt that there were living in the world Nandis daughters sons when Nandi executed the Will in favour of the defendants-appellants. Admittedly under the Hindu Succession Act children of Nandis daughter have right to succeed to her land in preference to the appellants who are alleged to be the sons of brother of Nandis husband. It is also admitted by Teja Singh in his cross-examination daughter of Nandi used to visit Nandi. In other words relations between Nandi and her daughter were not strained. It is also admitted by Teja Singh in his cross-examination daughter of Nandi used to visit Nandi. In other words relations between Nandi and her daughter were not strained. It has come in the evidence of the respondents that Nandi used to live with her daughter also. On the other hand, the appellants have also tried to prove that Nandi lived with them but they have not been able to prove so convincingly in as much as no ration-card incorporating therein the name of Nandi has been produced on record. Similarly no voter list has been produced to show that Nandi used to live with the appellants. Rather the position is otherwise. A perusal of the copy of the electoral rolls Ex. P.8 shows that in the year 1961 Nandi lived in village Rawalan the village of her father. It is also borne out from the record that during her lifetime Nandi had got her share in the land partitioned from the joint Khata and for that purpose there was a litigation between Nandi and the appellants before the Tehsildar. In these circumstances it is not understood as to why Nandi preferred her distant relatives the appellants to her nearest relatives the respondents and executed the Will in favour of the appellants. No mention in the Will itself has been made as to why Nandi excluded the respondents from the inheritance of her land." 5. Mr. Tewatia, learned counsel for the defendants-appellants, however, vehemently contends that the suspicious circumstances taken into consideration by the Courts below, were not even pleaded by the defendants. For lack of pleadings made on behalf of the defendants. The learned Courts below could not look into the same, further contends the learned counsel. 6. I find no merit in the contention of the learned counsel. It is not a case where Will might have been rejected only on the basis of suspicious circimstances. As is clear from the reading of the judgment, the only one witness, out of the two attesting witnesses, was examined. The other witness naturally could not be examined, as by the time evidence was recorded he had died. 7. It is not a case where Will might have been rejected only on the basis of suspicious circimstances. As is clear from the reading of the judgment, the only one witness, out of the two attesting witnesses, was examined. The other witness naturally could not be examined, as by the time evidence was recorded he had died. 7. Be that as it may, the only witness who was examined stated in examination-in-chief that the Will was written at the diction of Nandi as also the dictation of Teja Singh and Parshada and on a Court question, he further stated that Nandi all the time sat as a silent spectator and in fact she did not know even anything about that. This circumstance in itself is sufficient to discard the Will. The Will on the dint of evidence made by Bir Singh the only attesting witness produced in the Court could not be said to have been duly executed in terms of S. 63 of the Indian Succession Act. Apart from that, the Court is not impressed with the submission made by learned counsel for the appellant, as noted above. Suspicious circumstances may not be pleaded as it is the duty of the Court wherever there be a question of validity of the Will to examine all attending circumstances and if from the evidence led by the parties, some suspicious circumstances may clearly emerge, same have to be adverted to by the Court. It is the duty of the Court to satisfy itself with regard to validity of the Will and till such time Court may come to the conclusion that the Will propounded by a party is the last wish of the testator, no relief, based upon the Will, can be granted. If, while arriving at the satisfaction, as mentioned above, some suspicious circumstances might come to its notice, the effect of same has processarily to be taken into consideration, particularly when the Will might dispel natural succession. Finding no merit in the appeal, the same is dismissed. The parties are, however, left to bear their own costs. Appeal dismissed.