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2006 DIGILAW 1721 (PNJ)

Jai Kaur v. Mohinder Singh

2006-04-26

MAHESH GROVER

body2006
Judgment Mahesh Grover, J. 1. This is an appeal filed by the appellants challenging the judgment of the learned District Judge reversing the findings of the learned trial Court. 2. The respondent Mohinder Singh filed a suit for declaration and possession for the land which according to him, should have devolved upon him on the basis of Will dated 29.7.1978 executed by one Neki in his favour. Neki was alleged to be the owner of land measuring 45 Kanals and it is this land qua which the appellant prays that he should be declared the owner and as a consequences thereof he should be delivered the possession of the suit land. The appellant No. 1 is the widow of one Shankar who is alleged to have got the mutation of this land in her favour on the basis of Will dated 7.12.1978. 3. The defendant-appellants are the legal heirs of Shankar who had inherited the land of Neki who his brother. A family partition was also pleaded and it was stated that the Will dated 29.7.1989 in favour of the respondent is fictitious and forged. 4. The question which arises in the present appeal is as to whether the Will alleged to have been executed by deceased Neki in favour of respondent Mohinder Singh is valid one or not. The learned trial Court had not accepted the validity of the Will and in appeal the findings of the learned trial Court were reversed. 5. So I process to decide the preliminary question which is to be determined is as to whether the Will dated 29.7.1978 was a valid Will. The onus to prove the Will rested very heavily on the respondent. The evidence adduced by the appellant was uninspiring. The signatures on the Will and the sale deed executed by deceased Neki did not tally. There was no reason given in the Will as to why the deceased Neki was depriving the nearest heirs in line of succession of the right of inheritance to the land. No evidence is adduced to show that there was any such reason for the deceased to have shown this undue favour to the respondent and to deprive his near ones from the right of succession by disinheriting them from the claim. No evidence is adduced to show that there was any such reason for the deceased to have shown this undue favour to the respondent and to deprive his near ones from the right of succession by disinheriting them from the claim. The respondent is said to be a distant collateral and there is nothing on the record to suggest that the deceased was being taken care of by the respondent so as to earn his affections. There is also evidence to the effect that the respondent had taken an active participation in the execution of the Will to become its beneficiary. 6. All these circumstances when taken in their totality cast a serious aspersion on the genuineness of the Will. It is settled principle of law that the propounder of the Will is required to adduce satisfactory evidence that the Will when executed was free from all suspicious circumstances. It is also difficult to accept that the testator of the Will would deprive his near ones of the inheritance without any sufficient cause. 7. The next contention raised by the learned Counsel for the appellants was that the land was ancestral and that the parties are Jats of Haryana and that according to the custom such land is never willed away and devolves by way of natural succession. There is sufficient evidence on record to show that the land had devolved upon Neki from his father in succession and, therefore, the land was ancestral in his hand. There is also no dispute about the fact that the parties are Jats by caste. In view of these overwhelming facts, there is no escape from the conclusion that the parties who are Jats were governed by customs and, therefore, he could not execute a Will regarding his ancestral land to exclude the natural heirs from the right of succession. Reliance has been placed in this regard on a judgment reported as Mahipat and Ors. v. Bhim Singh and Ors. (1979) 81 P.L.R. 589. 8. I am in agreement with the view expressed in this judgment and, therefore, I am inclined to accept the appeal of the appellants for the reason that the Will was a sham document whose genuineness is heavily suspect. Consequently, the present appeal is allowed and the judgment of the learned District Judge is set aside with no order as to costs.