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2004 DIGILAW 1254 (PNJ)

Swinder Kaur v. Dalbir Kaur

2004-11-17

NIRMAL SINGH

body2004
Judgment Nirmal Singh, J. 1. This appeal has been filed by the plaintiff-appellants against the judgment and decree dated 17.11.1980 passed by learned Additional District Judge, Amritsar, whereby he allowed the appeal and set aside the judgment a nd decree dated 28.11.1977 passed by 1earned Sub Judge III class, Amritsar, whereby the suit of the plaintiff-appellants was decreed for possession of one half of the land situated at village Bhinder. 2. Briefly stated, the facts are that Gurbachan Singh was the owner of the land measuring 118 kanals 5 marlas in Village Bhinder and one half share out of 92 kanals in Village Dulo Nangal as per Jamabandi for the years 1970-71 and 1971-72 respectively. He was married to Swinder Kaur and out of the said wedlock, Gurcharan Singh, Jaswant Singh, Hardev Singh, plaintiffs and Sukhdev Singh and Baldev Singh, defendants were born. However, Gurbachan Singh was not having cordial relations with them. He married with another woman, namely, Dalbir Kaur, by way of Chadar Andazi and from the loins of Gurbachan Singh and Dalbir Kaur, Ajmer Singh, Paramjit Singh @ Kaka and Manjit Singh, defendants and two daughters were born, Gurbachan Singh was murdered on 2.11.1976. The plaintiff-appellants along with defendant Nos. 10 and 11 claimed the estate of Gurbachan Singh and pleaded that defendant No. 9 was entitled to 1/7th share of the suit land. The plaintiff-appellants also pleaded that defendant Nos. 1 to 4 alleged that Gurbachan Singh had executed a will and had bequeathed his whole estate in their favour. However, the plaintiff-appellants denied the factum of execution of any will and pleaded that it was the result of undue influence, misrepresentation and fraud. It is the further case of the plaintiffs that defendant Nos. 1 to 4, in collusion with defendant Nos. 5 to 9, had obtained a collusive decree in respect of the suit land from the civil Court, The said decree was not binding. The plaintiffs then filed a suit for declaration to the effect that they alongwith defendant Nos. 10 and 11 were owners of the suit land. In the alternative, they claimed the possession of the property. 3. The defendant contested the suit and raised number of preliminary objections. On merits also, it was pleaded that Dalbir Kaur was the legally wedded wife of Gurbachan Singh and defendant Nos. 10 and 11 were owners of the suit land. In the alternative, they claimed the possession of the property. 3. The defendant contested the suit and raised number of preliminary objections. On merits also, it was pleaded that Dalbir Kaur was the legally wedded wife of Gurbachan Singh and defendant Nos. 2 to 4 were their sons and according to them Gurbachan Singh had executed a valid Will in their favour as the relations between the plaintiffs and deceased Gurbachan Singh were not cordial. Even civil as well as criminal litigation was going on between Gurbachan Singh and the plaintiffs. It was further pleaded that Swinder Kaur, her brother, Ajit Singh and defendant Nos. 10 and 11, Sukhdev Singh and Baldev Singh, murdered Gurbachan Singh on 2.11.1976, for which a criminal case was registered against them. In that criminal case, Ajit Singh was awarded death sentence and Sukhdev Singh and Baldev Singh were awarded life sentence. However, Swinder Kaur was acquitted of the charges levelled against her. The defendants pleaded that Swinder Kaur, Sukhdev Singh and Baldev Singh were debarred to inherit the estate of Gurbachan Singh under the provisions of Hindu Succession Act. On the pleadings of the parties various issues were framed. The learned trial Court, after appreciating the evidence and hearing learned counsel for the parties, decided Issue Nos. 1, 2, 3 and 5 against the defendants. Under Issue No. 4, it was held that plaintiff No. 1 and defendant Nos. 10 and 11 would not be entitled to inherit the property left by Gurbachan Singh but the rights of other plaintiffs and defendant No. 9 to inherit his property would not be effected. Issue Nos. 6 and 7 were decided in favour of the plaintiffs while Issue No. 8 was decided against them and their suit qua half of the land of Gurbachan Singh situated in village Bhinder was decreed with proportionate costs. 4. Dissatisfied by the judgment and decree dated 28.11.1977 passed by learned Sub Judge, III Class, Amritsar, the defendants-respondents filed an appeal before the Additional District Judge, Amritsar, which was allowed vide judgment and decree dated 17.11.1980 as stated in Para 1 of the judgment. 5. Aggrieved by the judgment and decree passed by learned Additional District Judge, the plaintiff-appellants have filed the present appeal. 6. Mr. 5. Aggrieved by the judgment and decree passed by learned Additional District Judge, the plaintiff-appellants have filed the present appeal. 6. Mr. Sapan Dhir, learned counsel for the appellants, contended that the learned lower appellate Court has not appreciated the evidence on record in its right perspective. He contended that respondent Nos. 1 to 4 have propounded a Will dated 10.9.1974 allegedly executed by deceased Gurbachan Singh. He contended that the Will is a fabricated document and is surrounded by suspicious circumstances. He also contended that the Will, Ex.DW-4/1 had not been got scribed from a document writer. He further contended that the Will was typed one and if the same was got typed, then the testator must have got the same registered as the typists were available only in the Court premises. He also contended that the another suspicious circumstances is that the legal heirs, who were to inherit the estate, have been discarded. Even no reasons had been assigned as to why Gurbachan Singh, deceased, had discarded his mother, respondent No. 9, and minor sons and daughter, appellant Nos.2 to 4. He further contended that deceased Gurbachan Singh was not the owner of the land of Village Bhinder on the day when the Will was executed. He also stated before executing the Will, he had executed a document, mark A. As per this document, he retained the land in Village Dulo Nangal, a residential house and tubewell for himself and his mother. The land of Village Bhinder was divided between appellant Nos. 1 to 4 and respondent Nos. 1 to 4, 10 and 11. He further contended that the Will had not been got attested from the natural witnesses, rather, the same was attested from the interested witnesses, who had appeared as DW-4 Darshan Singh and DW-5 Mohan Singh. He also contended that if Gurbachan Singh, deceased, had executed the Will in favour of defendant-respondent Nos. 1 to 4, then DW-4 and DW-5 would have not been discrepant in their statements. He pointed out that the Will had been prepared after the death of Gurbachan Singh after consulting the lawyer. 7. I have heard learned counsel for the parties and perused the record carefully. 1 am of the considered opinion that there is no legal error in appreciating the evidence on record by the learned lower Appellate Court, 8. He pointed out that the Will had been prepared after the death of Gurbachan Singh after consulting the lawyer. 7. I have heard learned counsel for the parties and perused the record carefully. 1 am of the considered opinion that there is no legal error in appreciating the evidence on record by the learned lower Appellate Court, 8. Gurbachan Singh was murdered on 2.11.1976 by Swinder Kaur, her brother and sons and a criminal case was registered against them and Swinder Kaur was facing charges of conspiracy. In a criminal case, there need not be any direct evidence to prove the conspiracy. The case of conspiracy is based on circumstances. In the case in hand also, it became very difficult to prove the conspiracy and the learned Court, by giving the benefit of doubt, acquitted Swinder Kaur. However, her brother and sons were convicted and sentenced, as stated earlier, as the charge was proved against them. 9. It i s r elevant to mention here that there is no bar that the Will compulsorily should be a registered one nor there is any law that the same must be scribed from a regular deed writer. The Will speaks after the death of the testator. Therefore, the scrutiny of the Will is must. In the Will, Gurbachan Singh had mentioned that he was having two wives. Firstly, he got married with Swinder Kaur and out of the said wed-lock, four sons and one daughter was born. However, he was not having cordial relations with them and even civil and criminal litigation was going on between them. Swinder Kaur and her sons and daughter were threatening to kill them. He had also mentioned in his Will that he had another wife, namely, Dalbir Kaur and from the said wed-lock, three sons and two daughters were born. Dalbir Kaur and the sons born from the loins of Dalbir Kaur and Gurbachan Singh were serving him and due to the service rendered by them, Gurbachan Singh had executed the Will in their favour. He had also mentioned that he had executed the said Wilt without any pressure and coercion. Dalbir Kaur and the sons born from the loins of Dalbir Kaur and Gurbachan Singh were serving him and due to the service rendered by them, Gurbachan Singh had executed the Will in their favour. He had also mentioned that he had executed the said Wilt without any pressure and coercion. He had also written in his Will that during his life time, he would remain owner of the estate owned by him and after his death, his second wife, namely, Dalbir Kaur and three sons, namely, Ajmer Singh, Paramjit Singh @ Kaka and Manjit Singh would be the owner in equal share of the movable and immovable property. It was also mentioned in the Will that his second wife and sons born from Dalbir Kaur would also be responsible for the marriage of his two daughters, namely, Gurmit Kaur and Harjit Kaur according to the customs. A perusal of the Will further shows that the testator Gurbachan Singh had dis-inherited the appellants on the ground that they were inimical towards him and had filed civil and criminal cases against him. After the execution of the Will, he was apprehending threat to his life and ultimately his a pprehension became true, when he was murdered b y Swinder Kaur, her brother and sons. Otherwise also, the Will had been proved by DW-4 Darshan Singh and DW-5 Mohan Singh. Learned counsel for the appellants failed to point out any discrepancy worth the name on the basis of which it can be said that Gurbachan Singh had not executed the Will in favour of the propounders of the Will, rather, it is clear from the scanning of the evidence that the Will is the most natural document and the same is not surrounded by any suspicious circumstances. 10. The contention raised by learned counsel for the appellants that DW-4 Darshan Singh and DW-5 Mohan Singh are interested witnesses has also no merits. DW-5 Mohan Singh had deposed in his statement that DW-4 Darshan Singh is not related to him but he admitted that he is brother from the brotherhood. Otherwise also, the Will is to be got attested from a person in whom the testator has confidence so that he would not be won over by any party as the Will has to speak after the death of the testator. Otherwise also, the Will is to be got attested from a person in whom the testator has confidence so that he would not be won over by any party as the Will has to speak after the death of the testator. Learned counsel for the appellants lastly contended that the testator Gurbachan Singh was not the owner of the property of Village Bhinder as he had already partitioned this property between the plaintiffs and defendants. However, this argument has no legs to stand. The appellants have not produced any documentary evidence to prove the fact that before executing the Will, Gurbachan Singh had bequeathed the property in favour of the appellants or respondents. Therefore, the learned lower Appellate Court has rightly held that the Will is not surrounded by any suspicious circumstance, and, therefore, no interference is called for in these findings. The same are, therefore affirmed. No other point has been urged before me. For the reasons recorded above, there is no merit in the appeal. The same is, therefore, dismissed. However, the parties are left to bear their own costs.