Research › Search › Judgment

Punjab High Court · body

2004 DIGILAW 251 (PNJ)

Karnail Singh v. Sukhpal Kaur

2004-03-03

SATISH KUMAR MITTAL

body2004
JUDGMENT Satish Kumar Mittal, J. - This Regular Second Appeal has been filed by the defendants against the judgment and decree passed by both the Courts below vide which suit of the plaintiff, respondent herein, for possession regarding the land in question has been decreed. 2. The dispute in this case is about 37 kanals 7 marlas of land owned by one Arjan Singh. Plaintiff Sukhpal Kaur, daughter of the aforesaid Arjan Singh, filed the instant suit for possession of the land in dispute on the basis that she inherited the land of her father Arjan Singh being his only legal heir. She alleged that the defendants have no concern with the land, but they forcibly entered into the land in question and got the mutation sanctioned. When they refused to deliver possession of the land in question, the suit was filed. 3. The defendants contested the suit on two grounds, firstly that the plaintiff was not the daughter of Arjan Singh and secondly that during his life time Arjan Singh executed a Will dated 20.3.1978 in their favour on the basis of which mutation was sanctioned in their favour. It was also averred that the suit was not filed within limitation. 4. Both the Courts below decreed the suit of the plaintiff. On the basis of the evidence, it was held that the plaintiff is the daughter of Arjan Singh. It was also held that the defendants did not prove the execution of the valid Will by Arjan Singh and the same was found to be surrounded by suspicious circumstances. In this regard, the Courts below found, as a fact, the following suspicious circumstances :- (i) That as per the death certificate (Ex.D2), Arjan Singh expired on 7.4.1978 in the Rajindera Hospital, Patiala, whereas the alleged Will was executed on 20.3.1978 at Village Lehal Kalan. However, as per the statements of defendant Karnail Singh (DW.1) and Sham Sunder (DW.2) prior to his death, said Arjan Singh remained admitted in the Hospital for 24-25 days and died in the Hospital. In the light of these facts, it was held that when the alleged Will was executed, Arjan Singh was not present in the village. It was also held that the defendants could not produce any evidence in this regard to show that on the date of execution of the Will Arjan Singh was present in the village. In the light of these facts, it was held that when the alleged Will was executed, Arjan Singh was not present in the village. It was also held that the defendants could not produce any evidence in this regard to show that on the date of execution of the Will Arjan Singh was present in the village. (ii) That the alleged Will (Ex.D1) was written with two different inks and it could not be explained by any evidence that how the Will was written with two inks. (iii) That the defendants could not establish that at the time of execution of the Will, the testator Arjan Singh was in sound disposing mind. In this regard, statement of Sham Sunder (DW.2), the attesting witness, was relied upon, where he has stated that at the said time, Arjan Singh was not in good health. 5. Against the aforesaid judgments and decree, the defendants have filed the instant Regular Second Appeal, which was admitted on 24.12.1982. No substantial question of law was framed at that time. 6. I have heard the arguments of learned counsel for the parties and have gone through the records. 7. At the time of regular hearing of this appeal, on January 10, 2002, it was argued by learned counsel for the appellants that both the Courts below had not taken into consideration the fact that wife of Arjan Singh, namely Karnail Kaur, had abandoned her husband along with the plaintiff and re-married. Thereafter, she never returned to the matrimonial home. In view of the said fact, the suspicious circumstances pointed out by the Courts below would have lost its significance. On that aspect of the matter, this Court, vide order dated January 10, 2002, sought report from the trial court to return a finding as to whether wife of Arjan Singh along with her child had left Arjan Singh and re-married. 8. The trial court, after recording evidence of both the parties, has submitted its report dated 13.12.2002, to the effect that wife of Arjan Singh left him and had re-married but she did not take the plaintiff with her who was only 3/4 years old at that time. The plaintiff was brought up in the house of her maternal grand parents. She did not accompany her mother to her new matrimonial home. The plaintiff was brought up in the house of her maternal grand parents. She did not accompany her mother to her new matrimonial home. It has also been reported that Arjan Singh testator continuously remained in touch with his daughter and in her marriage, he also participated. 9. From the aforesaid report, it is clear that Arjan Singh was having love and affection for his daughter. He used to meet her and also participated in her marriage. Secondly, the mother of the plaintiff, while going to her new matrimonial home, did not take the plaintiff along with her. 10. Though the Courts below have mentioned only three suspicious circumstances, but while hearing the arguments of learned counsel for the parties and going through the record, two more suspicious circumstances came to the notice of this Court. Firstly that there is no mention in the Will (Ex.D1) that Arjan Singh was having one daughter i.e. the plaintiff. The defendants took contrary stand before the Court. The defendants have denied the relationship of the plaintiff with deceased Arjan Singh, though they have taken the stand at the time of arguments that wife of Arjan Singh abandoned him along with the plaintiff. This fact itself creates doubt in the mind of the Court. To my mind, the fact that the wife of Arjan Singh left her husband and re-married would not have any effect on the relationship of the plaintiff with Arjan Singh and her right to inherit the land of her father. The second important fact, which creates doubt, is that the Will in question is an unregistered document, which could not be explained by the defendants. 11. Learned counsel for the appellants-defendants, while arguing the appeal, could not assail the findings recorded by the Courts below regarding the suspicious circumstances and the fact that in the Will, no reference was made about the plaintiff and no reason was given for depriving the only daughter from the property of her father Arjan Singh. However, learned counsel for the appellants argued that once the defendants have proved the execution of the Will by examining its scribe and two attesting witnesses, they have discharged the burden and thereafter, it was for the plaintiff to establish that the Will was not valid and the same was not duly executed by the testator. However, learned counsel for the appellants argued that once the defendants have proved the execution of the Will by examining its scribe and two attesting witnesses, they have discharged the burden and thereafter, it was for the plaintiff to establish that the Will was not valid and the same was not duly executed by the testator. In this regard, he has referred to the observations made by the learned first appellate court to the effect that no doubt the witnesses Sham Sunder, Raunaq Singh and Jagroop Singh, examined by the defendants stated that the Will Ex.D1 was duly executed by Arjan Singh deceased, but there were suspicious circumstances which were required to be explained by the defendants before the Will could be accepted as genuine. Learned counsel for the appellants submitted that the aforesaid approach of the learned first appellate court was totally erroneous. 12. The aforesaid submission of learned counsel for the appellants cannot be accepted. Normally, if the propounder of the Will establishes that the Will was signed by the testator, while he was in a sound disposing state of mind, that he put his signatures on his own free will and that he had signed the Will in the presence of two witnesses, who attested it in his presence and in the presence of each other, the onus which rests on the propounder is discharged, but where there are suspicious circumstances, the onus will always be on the propounder to explain those circumstances to the satisfaction of the conscious of the Court. Unless he further discharges that onus, the Will can not be accepted as genuine one. In the instant case, the defendants did not explain any of the aforesaid suspicious circumstances to the conscious of the Court. 13. Learned counsel for the appellants made a feeble attempt to explain the aforesaid suspicious circumstances. He submitted that though the name of the plaintiff was not mentioned in the Will, but since she left the house of her father since her childhood, therefore, no love and affection remains between her and Arjan Singh. While referring to the decision of the Honble Supreme Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 Supreme Court 1684, learned counsel submitted that non-mentioning of the heirs in the Will itself is not a suspicious circumstance. While referring to the decision of the Honble Supreme Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 Supreme Court 1684, learned counsel submitted that non-mentioning of the heirs in the Will itself is not a suspicious circumstance. He further submitted that since Arjan Singh was served by the defendants, therefore, he executed the Will regarding his property in their favour. This explanation does not satisfy the conscious of the Court. If Arjan Singh was having no love and affection for his only daughter, he would not have any interaction with his daughter at all and would not have participated in her marriage. In normal circumstances, a man cannot forget his only child. 14. Learned counsel for the appellants further submitted that merely because the testator was ill at the time of execution of the Will, it cannot be said that he was not in a state of sound disposing mind and was not capable of understanding the nature and contents of the Will. In this regard, he relied upon decision of this Court in Kishan Singh v. Nichhattar Singh and others, 1983 Punjab Law Reporter 341. I do not find any force in this contention of learned counsel for the appellants. Learned counsel could not assail the finding of the Courts below to the effect that 24-25 days prior to his death, Arjan Singh remained admitted in Rajindera Hospital, Patiala and died in the Hospital itself. Both the Courts below have recorded a concurrent finding of the fact that when the alleged Will was executed, the deceased Arjan Singh was admitted in the Hospital. The defendants could not explain and lead any evidence to prove and explain how he was brought to village Lehal Kalan where he executed the alleged Will. This single fact itself, coupled with the facts that the Will in question was unregistered and the only legal heir was excluded without any reference, creates strong suspicion in the mind of the Court about the genuineness of the Will. Therefore, in my opinion, the conclusion arrived at by the Courts below is absolutely correct. 15. In view of the aforesaid discussion, I do not find any illegality or infirmity in the impugned judgments. The instant appeal is, therefore, dismissed. 16. No order as to costs. Appeal dismissed.