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2004 DIGILAW 623 (PNJ)

Salinder Kaur v. Kundan Singh

2004-05-26

J.S.NARANG

body2004
JUDGMENT J.S. Narang, J. - The plaintiffs-respondents Kundan Singh son of Nagina Singh and Jagbiro widow of Nathu son of Gokal filed the suit for possession in respect of the land defined in the plaint. It has been alleged that Assa Singh had half share in the suit land and the remaining half share of the land belonged to his brother Jota who died about 30 years ago preceding the date of the filing of the suit. He was survived by his widow Narati alias Prem Kaur. She contracted Karewa marriage with the aforesaid Assa Singh, brother of her husband, who died about 22 years ago preceding the date of filing of the suit. It has been further alleged that no issue was born from this wedlock and that after the death of Assa Singh, she suffered mental shock and became lunatic. It is also alleged that a number of persons got some documents thumb-marked from her when she was suffering from lunacy. It has also been alleged that defendant No. 1 Prem Singh son of Gurmukh Singh got a fictitious will thumb- marked from her on 16.4.1975. Whereas, in fact, she had never ever executed the aforestated Will, as such, the said Will does not affect the rights of the plaintiffs and defendant No. 4 Pooran Singh son of Gokal Singh of Bal Majra. However, it has been claimed that the plaintiffs and defendant No. 4 are the only legal heirs of Prem Kaur and therefore they are the owners of the suit land. Thus, the possession of defendant Nos. 1 to 3 is illegal. 2. The defendant No. 3 was proceeded against ex parte and that defendant No. 4 did not contest the suit being a proforma-defendant. The defendant Nos. 1 and 2 contested the suit by way of filing a detailed written statement and denying all the pleas set up in the plaint. It has been categorically claimed that Prem Kaur had never ever suffered a mental shock and that she was always of sound and disposing mind and that she executed her last Will dated 16.4.1975 in favour of Prem Singh, Harnam Singh and Guru Granth Sahib i.e. defendant Nos. 1 to 3. It has been categorically claimed that Prem Kaur had never ever suffered a mental shock and that she was always of sound and disposing mind and that she executed her last Will dated 16.4.1975 in favour of Prem Singh, Harnam Singh and Guru Granth Sahib i.e. defendant Nos. 1 to 3. The claim and right of the plaintiffs and defendant No. 4 has been emphatically denied as they do not have any right, title or interest in the suit land nor they can be accepted as collaterals of Prem Kaur. 3. From the pleadings of the parties, the issue have been framed. However, to establish their pleas and to support the issues, the onus of which has been cast upon them, the respective parties, led documentary as well as ocular evidence. The trial Court has categorically held that Prem Kaur executed a valid and legal Will dated 16.4.1975 which has been exhibited as Exhibit D-1. The defendants did not dispute that the plaintiffs are the seventh degree collaterals of Assa Singh, husband of Prem Kaur and therefore, have a locus standi to file this suit. The suit has also been held to be filed within the period of limitation as Prem Kaur is stated to have died on 21.5.1975. Thus, in view of the findings returned with regard to the Will Exhibit D-1, which has been executed in favour of defendant Nos. 1 to 3, the suit filed by the plaintiffs has been dismissed vide judgment and decree dated 2.8.1985. 4. The plaintiffs-respondents being dissatisfied with the aforesaid judgment and decree, filed an appeal before the lower Appellate Court and have questioned the finding in respect of the Will Exhibit D-1. It has been observed by the lower Appellate Court that the disputed will had been executed about a month prior to the death of Prem Kaur and also in favour of defendant-appellant Nos. 1 to 3. The perusal of the Will shows that one killa of the land was decreed in favour of Guru Granth Sahib and defendant-appellant No. 2 each and the remaining land/property has been decreed in favour of defendant-appellant No. 1. It has also been elicited that neither defendant- appellant No. 1 nor defendant-appellant No. 2 were related to her but despite this the effort has been made to show that they are the rightful claimants pursuant to the aforestated Will. It has also been elicited that neither defendant- appellant No. 1 nor defendant-appellant No. 2 were related to her but despite this the effort has been made to show that they are the rightful claimants pursuant to the aforestated Will. The plaintiffs-respondents have made an effort to show that Prem Kaur was looked after by her brother Shadi Singh but when he appeared as a witness, he had categorically admitted that he stopped visiting her for the last 5 to 7 years after she had executed Mutbananama and that she had expressed her views for executing the Will in favour of others. He was also unable to tell as to when she had died. In view of this, the conclusion is that Prem Kaur was looked after by defendant-appellant No. 1 and she died in his house at village Rampur Khurd, whereas the disputed land was situated in another village i.e. Bal Majra, where the plaintiffs are stated to be residing. Yet another fact which has emerged is that the plaintiffs- respondents have also placed reliance upon the Will Exhibit P-9 which is again stated to be thumb-marked by Prem Kaur. But at the same time, the plea has been set up by them that she was not of sound and disposing mind after the death of Assa Singh. The inference drawn by the lower Appellate Court is that it looks that Prem Kaur was an innocent person and could be brought under influence easily. Therefore, the possibility cannot be ruled out that she was not of sound and disposing mind. It is on these premises, the Will Exhibit D-1 has been non-suited and likewise the Will Exhibit P-9 dated 5.6.1972 has also been non-suited. 5. Another fact which has been noticed by the lower Appellate Court is that document Ex. P-8 by virtue of which Arjan Singh, the son of the brother of Prem Kaur is stated to have been adopted by her but the said person has not come forward to press his claim on the basis of the aforestated document which was challenged during the lifetime of Prem Kaur though the challenge was not taken to its logical conclusion. This document has also been, therefore, discarded by the lower Appellate Court. The lower Appellate court found itself surrounded by such suspicious circumstances. This document has also been, therefore, discarded by the lower Appellate Court. The lower Appellate court found itself surrounded by such suspicious circumstances. The facts averred but not taken to logical conclusion and finding that the plaintiffs-respondents have been categorically accepted as the seventh degree collaterals and the defendants had been found in that lineage, the suit filed by the plaintiff has been decreed by way of reversing the finding upon issue No. 1. By virtue of judgment and decree dated 20.10.1986, the suit filed by the plaintiffs- respondents has been decreed. The defendants-appellants being dissatisfied with the aforesaid judgment and decree of the lower Appellate Court have filed the present appeal. 6. Learned counsel for the appellants has argued that the lower Appellate Court has fallen into error in reversing the correct finding upon issue No. 1 while placing reliance upon the Will Ex. D-1 and that the same has been found to be genuine, authentic and valid by the trial Court. The said Will is a registered document which has been duly proved by the attesting witnesses and that the Sub-Registrar, Rajpura has also stepped into witness box for proving the factum of the registration of the Will. It has also been claimed that in fact, Prem Kaur died in the year 1976 and that with effect therefrom the defendants-appellants have been in continuous possession. The mutation on the basis of the aforesaid Will has been duly entered into in the revenue record and that the said record has not been challenged by any one. Admittedly, the suit has been filed in the year 1981, i.e. almost after about five years from the date of the death of Prem Kaur and the sanctioning of the mutations accordingly. 7. It has been further argued that the plaintiffs have filed merely a suit for possession and that no relief has been claimed seeking the declaration that the document Ex. P-1 is not sustainable under law and that any relief granted or availed pursuant thereto is not sustainable. Such a suit for seeking the aforestated declaration could be filed within a period of 3 years from the date of its execution or at best from the date of death of the deceased Prem Kaur. It is obvious that the plaintiffs have cleverly and in a clandestine manner filed a suit for possession and have made an averment that the Will Ex. It is obvious that the plaintiffs have cleverly and in a clandestine manner filed a suit for possession and have made an averment that the Will Ex. D-1 was got executed in a fictitious manner as the testrix did not understand the document but the same was not thumb-marked from her. Thus, the lower appellate Court has fallen into an error in declaring that the said document is not a good document and therefore has gone beyond the relief claimed in the suit. 8. It has been further argued that the Will Ex. P-9 is of no consequence as the same has not been proved in the correct perspective as the document is a certified copy and that in the absence of the original, the same could not be taken notice of. The requisite procedure for production of such a document i.e. certified copy of the aforestated Will has not been followed. It may be noticed that the plaintiffs-respondents have claimed benefit on the basis of Will Ex. P-9 dated 5.6.1972 by Prem Kaur which is stated to be allegedly executed in favour of one Prem Singh son of Chajju Singh. Because Prem Singh son of Chajju Singh has appeared as PW-6 and has categorically admitted in his cross-examination that after the aforestated Will, the second Will dated 16.4.1975 Ex. D-1 was executed. However, learned counsel maintains his plea that the second Will Ex. D-1 is shrouded with suspicious circumstances which has been correctly held by the lower Appellate Court. 9. On the other hand, learned counsel for the plaintiffs-respondents has argued that looking at the statement of the attesting witness Ram Singh DW-3, he has categorically stated in his cross-examination that Prem Kaur was not of sound disposing mind for the last some years and that he had been visiting her to find out her welfare. It would not be correct to upset the finding of the lower appellate Court when the categoric finding has been given that Prem Kaur was not sound disposing mind therefore could not have executed the Will Ex. D-1 beneficial to defendant Nos. 1 to 3. He has further argued that the plaintiffs-respondents have (been) categorically held to be seventh degree collaterals of Prem Kaur and defendant Nos. 1 to 2 are admittedly not related to her. Thus, the lower Appellate Court has correctly decreed the suit vis-a-vis the plaintiffs-respondents. 10. D-1 beneficial to defendant Nos. 1 to 3. He has further argued that the plaintiffs-respondents have (been) categorically held to be seventh degree collaterals of Prem Kaur and defendant Nos. 1 to 2 are admittedly not related to her. Thus, the lower Appellate Court has correctly decreed the suit vis-a-vis the plaintiffs-respondents. 10. After hearing learned counsel for the parties, and perusing the record, I am of the view that the lower appellate Court fell into an error in upsetting the judgment and decree dated 2.8.1985 of the trial Court. Ran Singh the attesting witness has appeared in the witness box and had deposed that he had attested the Will Ex. D-1 as an attesting witness by putting his thumb impression in the presence of Prem Kaur. He also stated that Prem Kaur was of sound disposing mind at the time of the execution of the aforestated Will and that he had appeared before the Sub-Registrar for the purpose of the registration of the Will. He has also corroborated the fact that she had put a thumb impression after understanding the contents of the Will. He has also corroborated the fact that Prem Kaur used to reside with Prem Singh, defendant-appellant No. 1 and that her last rites were also performed by him. However, in cross-examination he has been confronted with the statement made in another suit on 19.10.1971, the copy of which has been exhibited as Ex. P- 2. He has denied the statement and he has pleaded ignorance with regard to the deed of adoption stated to have been executed by her. 11. Prem Singh, defendant-appellant No. 1 appeared as DW-5 and has categorically stated that the land inherited by him pursuant to Will Ex. D-1 was duly mutated by placing reliance upon Ex. D-1 in favour of the beneficiaries and the same has never ever been questioned by anyone. 12. Learned lower Appellate Court has mainly placed reliance upon the fact that Prem Kaur was about 90 years old at the time of the execution of the Will, therefore, she cannot be expected to be of sound disposing mind. It has also been inferred that she could be easily brought under influence and, therefore, the documents as brought on record could be got executed from her. It has also been inferred that she could be easily brought under influence and, therefore, the documents as brought on record could be got executed from her. I am afraid that this inference is not sustainable, coming under influence is something else and a person of being not of sound disposing mind is entirely different. It is also an admitted case that the Will Ex. D-1 was in the knowledge of the plaintiffs-respondents but the same had never been questioned as no suit for declaration had ever been filed by anyone with regard to the credibility of the Will. A perusal of the pleadings shows that the allegation has been levelled that the aforesaid Will was got executed by the defendant- appellant No. 1 fictitiously but the document as such had not been questioned by way of seeking declaration accordingly. The said document has been proved in accordance with law and that the attesting witness Ran Singh has appeared in the witness box but the execution of the said document has not been demolished rather to the contrary he has categorically proved that Prem Kaur had gone to the office of the Sub-Registrar and after understanding the Will, she had thumb-marked the same in front of the witnesses. There is no other evidence which has been brought on record by the plaintiffs-respondents that Prem Kaur was not of sound disposing mind, the evidence relied upon is that Ran Singh had deposed in some other suit that Prem Kaur was not of sound disposing mind, which has been categorically declined by the said witness in the cross-examination. This fact alone could be too dangerous to demolish the document which otherwise has not been shown to be shrouded with suspicious circumstances. In view of the above, the appeal is allowed and the judgment and decree dated 20.10.1986 of the lower appellate Court is set aside and that of the trial Court dated 2.8.1985 is affirmed. Resultantly, the suit filed by the plaintiffs-respondents stands dismissed. Decree be drawn accordingly. Appeal allowed.