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2003 DIGILAW 1460 (PNJ)

Gurdev Singh v. Shakuntla

2003-10-22

SATISH KUMAR MITTAL

body2003
Judgment Satish Kumar Mittal, J. 1. This is defendants Regular Second Appeal against the judgment and decree dated 13.12.1982 passed by the learned Additional District Judge, Jalandhar vide which the suit of the plaintiff-respondents for possession of the land in question was decreed, whereas the same was dismissed by the trial Court. 2. In this appeal, the controversy is about the land measuring 9 Kanals 15 Marlas, which was owned by one Munshi Ram. The instant suit for possession was filed by his two daughters, namely, Smt. Shakuntla and Smt. Satya Devi against defendant No. 1-Gurdev Singh (appellant herein), who is their cousin, on the basis of the title by alleging that their father was the owner in possession of the land in question and after his death on 3.9.1978, they inherited the land in question. It was alleged that defendant No. 1 got sanctioned the mutation in his favour regarding the land in question on the basis of the Will, though no such Will was ever executed by their father, and if there was any such Will, the same was the result of fraud and misrepresentation. Therefore, they are entitled for possession of the land in question which was illegally taken by the defendant-Gurdev Singh. In the suit, two other persons namely, Ajit Ram and Ganga Ram, were impleaded as defendant Nos. 2 and 3, who were merely co-sharers in the joint khata, though no relief was sought against them. Therefore, the suit was only contested by defendant No. 1 - appellant Gurdev Singh and the other two defendants did not appear and contest the suit. 3. The defendant-appellant contested the suit by alleging that Munshi Ram was his uncle. He was son of the brother of grand father of the defendant-appellant. The wife of Munshi Ram expired long back and after the marriage of his two daughters (Respondents herein), he was living alone as he was having no male issue. He was being looked after by the defendant-appellant and his father till he died in the year 1978. In lieu of service rendered by them to Munshi Ram, he executed a registered Will in favour of defendant-Gurdev Singh on 24.3.1969 regarding his property which was the only land in question measuring 9 Kanals 15 Marlas. He was being looked after by the defendant-appellant and his father till he died in the year 1978. In lieu of service rendered by them to Munshi Ram, he executed a registered Will in favour of defendant-Gurdev Singh on 24.3.1969 regarding his property which was the only land in question measuring 9 Kanals 15 Marlas. After the death of Munshi Ram, the mutation of the land in question was sanctioned in favour of the defendant-Gurdev Singh on the basis of the aforesaid Will. It was also alleged that after the death of Munshi Ram, his last rites were performed by the father of the defendant-Gurdev Singh and other customary ceremonies were also performed, by him and his father. It was specifically pleaded that after the marriage of the plaintiffs and during the life time of Munshi Ram, both the plaintiffs never visited Munshi Ram to look after him. As such, he prayed for the dismissed of the suit filed by the plaintiff. 4. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether deceased Munshi Ram executed a valid Will in favour of the defendant No. 1?OPD 2. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD 3. Relief. 5. On issue No. 1, which is the only material issue in this case, it was held by the trial Court that the defendant-appellant has duly proved the execution of the Will dated 24.3.1969 (Ex.D-20) by examining the scribe of the Will, namely, Dharam Pal and its attesting witnesses, namely Pritam Singh, Lambardar of the village (DW-4) and Chamba Ram (DW-5). It was further found that the aforesaid Will dated 24.3.1969 was not surrounded by any suspicious circumstances and it was the most genuine Will, though the daughters were excluded by the testator from the inheritance of the land in question. The trial Court recorded certain findings of facts, on the basis of which, the aforesaid conclusion was made. After recording these findings the trial Court dismissed the suit of the plaintiff-respondents. 6. On appeal by the plaintiffs, the learned first Appellate Court reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs. The trial Court recorded certain findings of facts, on the basis of which, the aforesaid conclusion was made. After recording these findings the trial Court dismissed the suit of the plaintiff-respondents. 6. On appeal by the plaintiffs, the learned first Appellate Court reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs. Though the learned first Appellate Court confirmed the finding of the trial Court regarding execution of the registered Will but it was held that the same was surrounded by suspicious circumstances and was not a genuine document because the natural course of inheritance was deviated without any sufficient cause. The learned first Appellate Court pointed out certain circumstance which create suspicion about the genuineness in execution of the Will. Firstly, that the appellant-Gurdev Singh was only 12-13 years of old and was living in Dubai at the time of execution of the Will Ex.D-20, then how he could have rendered service to testator Munshi Ram. Secondly, even the alleged service rendered by the father of the appellant to Munshi Ram could not be believed as the deceased was residing separately having separate ration card and died in his house and not in the house of the father of the appellant. Thirdly, the appellant did not appear into the witness box to state as to how he was rendering service to deceased Munshi Ram. Fourthly, no sufficient reason was explained in the Will for depriving the daughters of the testator, who were the natural heirs, from inheritance of the property in question. In this regard, it was observed by the learned first Appellate Court that the defendant-appellant did not lead any evidence to show that the relations of deceased Munshi Ram were strained with his daughters, and that the names of the daughters were not mentioned in the Will. On the basis of these circumstances, the Will in question was held to be surrounded by suspicious circumstances, and as such the execution of the Will was ignored. 7. Shri G.S. Grewal, learned Senior counsel appearing for the appellant submitted that the finding recorded by the first Appellate Court about the Will being surrounded by suspicious circumstances is totally not sustainable, in view of the facts and evidence available on the record. 7. Shri G.S. Grewal, learned Senior counsel appearing for the appellant submitted that the finding recorded by the first Appellate Court about the Will being surrounded by suspicious circumstances is totally not sustainable, in view of the facts and evidence available on the record. He submitted that when the execution of the Will has been proved, then the further question whether the Will is surrounded by suspicious circumstances or not is a question of law, which can be gone into by this Court in Regular Second Appeal. The learned counsel canvassed that the learned Appellate Court has not taken into consideration the following admitted or proven facts on the record which clearly repel all the alleged suspicious circumstances in execution of the Will. The learned counsel canvassed that the learned Appellate Court has not taken into consideration the following admitted or proven facts on the record which clearly repel all the alleged suspicious circumstances in execution of the Will. a) that the testator Munshi Ram was collateral of legatee Gurdev Singh and not a stranger; b) he had married his two daughters long back in the year 1948-49; c) after the death of his wife and marriage of his two daughters, the deceased Munshi Ram was living alone in the village and he was having no male issue, d) both the daughters (plaintiffs) after their marriage never visited the house of the deceased Munshi Ram to inquire about his well being; e) as per the statement made by one of the plaintiffs Satya Devi in her cross examination, her father Munshi Ram used to take meals with Swaran Chand, father of the appellant; f) the Will in question was executed in the year 1969 and it was got registered by Munshi Ram and thereafter he remained alive for 9 years, but he never questioned his Will; g) the deceased Munshi Ram was looked after by Gurdev Singh and his father till the time of his death when he died at the age of more than 80 years; h) it is also admitted case that after the death of Munshi Ram, he was cremated by Gurdev Singh and his family members and all his last rites were performed by them as is clear from the photographs Ex.D-2 to Ex.D-10; i) both the daughters were present at the time of last rites and in their presence the ceremony of Rassam Pagri was performed by the father of Gurdev Singh; j) in the Will, it has been clearly mentioned that the testator was having no male issue and he had already married his two daughters, who are living happily in their matrimonial home; and k) it was also specifically mentioned in the Will Ex.D-20 that the said Will was executed in lieu of service rendered by the defendant-appellant and his father to the testator. 8. The learned counsel for the appellant submitted that all the aforesaid facts either have been admitted or have been proved on record. 8. The learned counsel for the appellant submitted that all the aforesaid facts either have been admitted or have been proved on record. In view of these established facts, in no circumstances, the Will in question can be said to be surrounded by any suspicious circumstances and the four circumstances mentioned by the learned first Appellate Court do not constitute such suspicious circumstances, on the basis of which the Will in question can be held to be not a genuine document. Therefore, the judgment and decree passed by the learned first Appellate Court is liable to be set aside. 9. On the other hand, learned counsel for the respondents submitted that mere proof of execution of the Will unless though it was a registered one, is not sufficient to establish the validity of the Will unless suspicious circumstances are satisfactorily explained to the conscious of the Court. He submitted that in the instant case no sufficient explanation has been given for excluding his only two daughters from the inheritance by the testator. In this regard, the learned counsel for the respondents placed reliance on the decisions of this Court in Depinder Singh Dhillon v. General Public, 1977 (Suppl.) PLR 22, Mohinder Singh v. Naranjan Singh, (1994-1)106 P.L.R. 414, Baltej Singh v. Hamir Kaur, (2001-3)129 P.L.R. 151, Bhagwan Kaur v. Gurbax Singh and Anr., 1993 C.C.C. 710 (P&H), Nimbo and Ors. v. Satyabir Singh, (1995-1)109 P.L.R. 546, and a decision of the Honble Supreme Court in Ram Piari v. Bhagwant and Ors., (1990-1)97 P.L.R. 639. 10. In Depinder Singh Dhillons case (supra), it was held by this Court that mere registration of Will in itself is not sufficient to dispel all suspicion regarding execution of a Will and that the Court has to be satisfied fully that the Will has been validly executed by the testator out of his free Will and in proper state of mind. Similarly, in Mohinder Singhs case (supra), where a Will was executed in favour of nephews while excluding the sister, this Court rejected the contention of the legator that it is common among the agriculturists to retain the land within the male descendants or collators. Similarly, in Mohinder Singhs case (supra), where a Will was executed in favour of nephews while excluding the sister, this Court rejected the contention of the legator that it is common among the agriculturists to retain the land within the male descendants or collators. In Baltej Singhs case (supra), it has been held by this Court that the Will ignoring the widow and daughters propounded by the sons of the sister of the testator without mentioning any reason for ignoring them to prefer the sons of sister, was held to be surrounded by suspicious circumstances. Similar reasons have been given by the Court in the other cases cited by the learned counsel for the respondents. 11. After hearing learned counsel for both the parties and perusing the record of the case, I am of the opinion that this appeal deserves to be allowed. In the instant case, the execution of the Will has been upheld by both the Courts below. The appellant has duly proved the execution of the Will by examining its scribe as well as two attesting witnesses, namely, Pritam Singh (DW-4) and Chamba Ram (DW-5). One of the attesting witness of the Will was the Lambardar of the village and the second attesting witness was also an independent person though a resident of different village. This attesting witness (DW-5) has specifically stated that he was the revenue Patwari and remained posted in the village of Munshi Ram and was known to him. Both these witnesses and the scribe have duly proved the execution of the Will by Munshi Ram in favour of the appellant. It was a registered Will. Even though the execution of the Will was not seriously disputed by the respondents either before the trial Court or before this Court, but the genuineness of the Will has been questioned only on the basis of being surrounded by suspicious circumstances. The circumstances mentioned by the learned first Appellate Court in its judgment, to my mind, do not create any suspicion regarding genuineness of the Will, if the other circumstances, facts and evidence available on the record are to be seen. Merely because deceased Munshi Ram was having a separate ration card and he died in his own house does not indicate that the was not being looked after by any person or by the appellant and his family. Merely because deceased Munshi Ram was having a separate ration card and he died in his own house does not indicate that the was not being looked after by any person or by the appellant and his family. He was more than 80 years old at the time of his death. He might have fallen ill, somebody might have looked after him. He was cremated by defendant-appellant and his family, and all the last rites and other customary, as prevalent in the village, were performed by the appellant and his family in the presence of the plaintiffs, as is clear from the photographs Ex.D-2 to Ex.D-10. These facts clearly indicate that when the deceased Munshi Ram was living alone in the village after the death of his wife and marriage of his daughters, he was looked after by the appellant and his father. It is admitted case that both the daughters did not visit the village after their marriage to look after their father. It is also not their case that they have served their father before his death. Therefore, it cannot be said at all that no service was rendered to deceased Munshi Ram by the appellant and his father. Merely because the appellant was minor at the time of execution of the Will does not mean that no service was rendered to him by his father. It is also not necessary that always the service is rendered by the legatee. Even if the service is rendered by the family of the legatee, the Will can be executed by the testator in favour of any member of the family. The exclusion of the daughters by the testator has been duly explained in the impugned Will. It has been specifically mentioned that at the time of execution of the Will, both the daughters of the testator were leading happy married life. The testator was knowing well that neither his daughters were going to serve him in his village nor he was willing to go to in laws house of his daughters. That is why, it appears that he executed that Will in favour of Swaran Chand because he and his family was serving him and only they could have served him in future. The registered Will was executed in the year 1969. That is why, it appears that he executed that Will in favour of Swaran Chand because he and his family was serving him and only they could have served him in future. The registered Will was executed in the year 1969. Thereafter, the testator remained alive for more than nine years but during that period he neither questioned nor reviewed his decision for execution of the Will in favour of the appellant. His hopes and expressions proved to be correct when the appellant and his family members served him during his last days and after his death all the rituals prevalent in the society were performed by them. In these circumstances, I do not find that the testator was not willing to execute the Will in question in favour of the appellant or that the said Will was surrounded by any suspicious circumstances which creates any doubt in the mind of this Court about its genuiness, merely because the testator excluded his daughters from inheritance. In Rabindra Nath Mukherjee and Anr. v. Panchanar Banerjee (Dead) by LRs. and Ors., (1995-3)111 P.L.R. 594 (S.C.), the Honble Supreme Court has held that mere deprivation of natural heirs by testarix is not by itself a suspicious circumstances because the whole idea behind execution of Will is to interfere with the normal line of succession. So, the natural succession would be debarred in every case of Will. Every case depends on facts and circumstances of each case. Taking total view of the circumstances, which has to be the approach, it must be held that the Courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the pro-pounders. In the instant case, the learned first Appellant Court has not taken into consideration all the material circumstances in consideration while holding that the Will in question was surrounded by suspicious circumstances and, while reversing the judgment of the trial Court has over-looked and ignored many important aspects and circumstances which have been dealt with by the learned trial Court. The entire approach of the first Appellate Court is erroneous as it has not taken onto consideration all the facts and circumstances of the case and has set aside the finding of the trial Court only on the basis of suspicious circumstances which were having no comparative relavance to the genuineness of the Will. The entire approach of the first Appellate Court is erroneous as it has not taken onto consideration all the facts and circumstances of the case and has set aside the finding of the trial Court only on the basis of suspicious circumstances which were having no comparative relavance to the genuineness of the Will. The various judgments cited by the learned counsel for the appellant are not applicable in the facts and circumstances of the case in hand. What are suspicious circumstances must be judged in the facts and circumstances of each particular case, as has been held by this Court in Chanan Singh (deceased) through Smt. Gurnam Kaur and Ors. v. Sawarn Singh (Deceased) now represented by Tarsem Singh and Ors., R.S.A. 2523 of 1982, decided on 8.10.2003. In the instant case the learned first Appellate Court was justified in doubting genuineness of the Will in question. 12. In view of the aforesaid discussion, I allow this appeal and the judgment and decree dated 13.12.1982 passed by the first Appellate Court is set aside and the suit of the plaintiff-respondents is dismissed, with no order as to costs.