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2014 DIGILAW 1612 (PNJ)

Karmi v. Sital

2014-11-25

FATEH DEEP SINGH

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JUDGMENT Mr. Fateh Deep Singh, J.: - After the trial Court of learned Sub Judge First Class, Phillaur decreed the suit of plaintiffs Sital and Shingara upholding Will dated 5.10.1983 Ex.P1 in their favour and discarded the Will set up by the defendant now appellant dated 13.10.1983 Ex.D1/R2, the unsuccessful defendant, in the first appeal failed to secure any favour and her appeal stood dismissed through judgment and decree dated 25.11.1986 passed by the learned Additional District and Sessions Judge, Jalandhar and, thus, is before this Court challenging these findings by way of the instant regular second appeal. 2. Though, there is not much dispute inter se over the family hierarchy, however, for better understanding and appreciation of the facts the same is depicted by way of family tree enumerated below:- Hukami ! ________________________________________________________ ! ! Jai Chand Karam Chand (died on 18.11.1983) wife Karmi, defendant/appellant __________________________________ ! ! ! Sital Shingara Paul Plaintiff No.1/ Plaintiff No.2/ respondent No.1 respondent No.2 3. It is not agitated that out of the wedlock between Jai Chand and Karmi/defendant-appellant, the couple did not have any child and, thus, both of them died issueless. It is the case of the plaintiffs that Jai Chand while in a sound disposing mind executed a registered valid Will Ex.P1 on 5.10.1983 in favour of plaintiffs and that on the basis of this Will they have come to inherit the estate of deceased Jai Chand. However, on the other hand, defendant-Karmi has staked her claim to the estate of her deceased husband on the strength of an unregistered Will dated 13.10.1983 subsequently registered on 24.1.1984 Ex.D1/R2. The two Courts below have discredited the Will in favour of Karmi and that is the short point involved in this dispute on the basis of which following issues were framed by the trial Court:- 1. Whether deceased Jai Chand executed a valid Will dated 5.10.1983 in favour of the plaintiffs? OPP 2. Whether deceased Jai Chand executed a valid Will dated 13.10.1983 in favour of the defendant? OPD 3. Whether the suit is liable to be stayed under Section 10 CPC? OPD 4. Relief. 4. The plaintiff examined PW1 Sadhu Ram, PW2 Ram Rattan, Lambardar both attesting witnesses of the Will Ex.P1. OPP 2. Whether deceased Jai Chand executed a valid Will dated 13.10.1983 in favour of the defendant? OPD 3. Whether the suit is liable to be stayed under Section 10 CPC? OPD 4. Relief. 4. The plaintiff examined PW1 Sadhu Ram, PW2 Ram Rattan, Lambardar both attesting witnesses of the Will Ex.P1. PW3 Ram Chand proved registration of this document followed by the testimony of PW4 Pawan Kumar, Deed Writer, who scribed this Will and, thereafter, the plaintiff Sital was examined as PW5. PW6 Ramswaroop sought to prove the case of the plaintiffs qua this Will. 5. On the other hand, defendant examined the scribe of the Will set up by her namely DW1 Gurmail Chand followed by the testimony of attesting witnesses DW2 Charan Singh, DW3 Harbans Lal and DW4 Sat Pal, Attorney. It is worthwhile to refer here that during the course of pendency of the suit, defendant- Karmi died on 18.8.1994 and her heirs were impleaded in her place through orders of the Court dated 17.4.1995. 6. Before this Court following substantial questions of law stood framed:- 1. Whether the findings of both the Courts below regarding the alleged Will dated 5.10.1983 executed by Jai Chand (deceased) in favour of the Respondents/Defendants are invalid and unsustainable in the eye of law? 2. Whether the findings of both the Courts below regarding the Will dated 13.10.1983 executed by Jai Chand (deceased) in favour of the Appellant/Plaintiff are invalid and unsustainable in the eye of Law and, hence, the Will dated 13.10.1983 is a genuine document. 3. Whether the plaintiffs have failed to prove the due execution of the alleged P-1 dated 5.10.1983 and the defendant has been able to duly prove the due execution of the Will D-1 dated 13.10.1983? 4. Whether the Will dated 13.10.1983 in favour of Appellant/Defendant is that last and final Will of the testator? 5. Whether the judgments and decrees passed by the Ld. Lower Courts are perverse and hence liable to be set aside? 7. Heard at length learned counsel for the parties and had the opportunity to venture into the records of the trial Court. 8. 5. Whether the judgments and decrees passed by the Ld. Lower Courts are perverse and hence liable to be set aside? 7. Heard at length learned counsel for the parties and had the opportunity to venture into the records of the trial Court. 8. It is not in any manner a matter of dispute that the Will Ex.P1 is a registered Will prior in point of time, whereas the other Will was unregistered and subsequently registered and there is a interval of seven days between the execution of two Wills. It is readily accepted by Mr. I.S. Saggu learned counsel for the respondents and as has sought to be argued by counsel for the appellant that under the Indian Registration Act, 1908, there is no legal necessity for registration of a Will and that under the provisions of Section 27 of this Act a Will can be produced, presented for registration and for registration of an unregistered Will, an enquiry in terms of Sections 34 have been provided and which is precisely what has transpired in the subsequent Will Ex.D1/R2. Even during the course of trial of this case the defendant’s witnesses have been confronted with the statements made before the registering authority which is highly undesirable. It is also not the law that a registered Will has precedence over the unregistered Will and what is to be gone into is the manner of the execution, state of health, disposition, free will of the executant being above suspicion and so on and so forth. No doubt, by now it is settled position of law reference of which can be taken note of from the ratio laid down in Surendra Pal and others vs. Dr. (Mrs.) Sarswati Arora AIR 1974 S.C. 1999 which has exhaustively laid down the principles to appreciate a Will. That it is for the propounder of the Will to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood nature and effect of the disposition and he put his signature to the testament on his own free will and that he signed it in the presence of two witnesses, who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder stands discharged. Once these elements are established, the onus which rests on the propounder stands discharged. No doubt, as has sought to be projected on behalf of the respondents that registration of a Will is prima facie evidence that the deceased was in a sound and disposing state of mind and further the fact of deprivation of the natural heirs is not a suspicious circumstance in itself, as the whole idea behind execution of a Will is to interfere in the natural line of succession. 9. Reverting back to the instant case the first Will Ex.P1 has been executed and registered by the testator, who at that very relevant point of time had a living wife, however, as has been argued for the appellant, being the wife, the only heir no reason is forthcoming in the Will Ex.P1 as to why the wife is being denied this legitimate opportunity to inherit the estate of her husband are matters which certainly have their bearing on the Will. The learned trial Court while adjudicating on the principal issue pertaining to the Wills, issues No.1 and 2 in paras 9, 10 and 11 has acted more on preposterous presumption that an unregistered Will can be fabricated by any resourceful person with the help of two or more obliging witnesses. As has been pointed out during the course of arguments at the time of the trial a definite stand has been taken by the plaintiffs, especially, in the cross-examination of DW2 Charan Singh and DW3 Harbans Lal that the Will Ex.D1/R2 is a fabricated document and that it does not bear the thumb impression of Jai Chand. However, to the very query of the Court Mr. I.S. Saggu, learned counsel for the plaintiffs-respondents could not satisfactorily answer, if it was the stand of the plaintiffs since both the Wills invariably carry the thumb impression of the executant and why the same were not got compared. More so, there is no evidence led by the plaintiffs to further prove this stand. 10. The learned trial Court has further elaborated when discussing the evidence, how it is of the opinion that the Will Ex.P1 is duly proved on the file and was the last valid Will executed by the deceased. More so, there is no evidence led by the plaintiffs to further prove this stand. 10. The learned trial Court has further elaborated when discussing the evidence, how it is of the opinion that the Will Ex.P1 is duly proved on the file and was the last valid Will executed by the deceased. Learned counsel for the appellant has never staked the claim to the effect that Will Ex.P1 was not executed by Jai Chand and rather he has stressed on the fact that Ex.D1/R2 is the last testamentary valid Will of the deceased Jai Chand. It has been rightly sought to be projected and is so evident from the Will set up by the defendant-Karmi where it finds mentioned on page 2 of this Will that prior to execution of the second Will some writing has been procured and which he cancels and has detailed the places where his immovable properties are situate. Thus, learned counsel for the respondents could not show to this Court and succeed to ward off the likely repercussions regarding mention of the cancellation of the prior Will by the executant on Ex.P1. Rather to the mind of this Court, not only establishes that the first Will has been cancelled by the testator but also reflects and establishes that at the time of the execution of the second Will Jai Chand was in a sound disposing state of mind and has even elaborated the reasons why he is executing the subsequent Will in favour of his wife rather are matters which have an enormous bearing on the case in favour of Will Ex.D1/R2 certainly impresses this Court. Since the second Will has neither been proved to be not executed by the executant nor there is any iota of evidence to show that the thumb marks of deceased Jai Chand, executant do not belong to him or there is any element of fraud, coercion and undue influence and, thus, no suspicious circumstance surrounds this Will. Even otherwise, the second Will Ex.D1/R2 can even be termed as a codicil having rectified the previous deposition of the executant. Even otherwise, the second Will Ex.D1/R2 can even be termed as a codicil having rectified the previous deposition of the executant. Furthermore, in the impugned findings much efforts have sought to be made by the Courts below in harbouring over the Will and the statements made during the enquiry by the registering authority while registering the second Will on its presentation which certainly has no impact on the Will itself which has to be proved independently by means of cogent and reliable evidence above all suspicious circumstances before the Civil Court which is supposed to adjudicate on its legality and validity and, thus, is of finality. The fact that Karmi in her statement before the registering authority Ex.P10 has admitted that her husband executed a Will Ex.D1/R2 and she has come to know about previous Will made by her husband in favour of the plaintiffs rather further corroborates the fact that the testator himself has cancelled his previous testament which was in favour of his nephews/plaintiffs and further the stand of appellant is truthful and bonafide. 11. During adjudication as is evident from the impugned findings of the Courts below special emphasis has been laid by the trial Court holding that there are number of suspicious circumstances shrouding the Will in favour of the defendant and which have been enumerated that the Will was unregistered document; the beneficiary being present at the time of execution of the Will; both the attesting witnesses are close relations of the defendant; discrepancies in their statements and that Karmi the beneficiary has not stepped into the witness box to prove the due execution of the Will. As has already highlighted that it is settled position of law that mere non-registration of a Will is not a suspicious circumstance and, therefore, this stand of the trial Court is certainly perverse and uncalled for. As has already highlighted that it is settled position of law that mere non-registration of a Will is not a suspicious circumstance and, therefore, this stand of the trial Court is certainly perverse and uncalled for. The fact that the trial Court has considered presence of Karmi at the time of second Will to be against the spirit of the Will does not helps the case of the respondents as it is not their case in the pleadings and crossexamination of witnesses that beneficiary along with the attesting witnesses of Ex.D1/R2 have made undue influence upon the executant and rather their stand is that of forgery and fabrication which are mutually exclusive stand and even this Court in Harnek Singh vs. Sukhdev Singh 2002 Vol-1 CCC 59 P & H has held that mere presence of beneficiary at the time of execution of the Will has no ill-effect on the Will. In the light of the arguments made on behalf of the plaintiffs by their counsel and upon perusing the statements of the witnesses of the defendant DW1 Gurmail Chand, Scribe has elaborated how in his presence at the asking of the executant he has scribed the Will which was read over to him and after admitting its contents has thumb marked the same and, thereafter, was attested by the attesting witnesses. Learned counsel for the respondents could not satisfactorily explain what evidence has been led that illness of the executant had effected his senses and was unable to decipher his act. DW2 Charan Singh and DW3 Harbans Lal have emphatically stated that Jai chand at the time of execution of the Will Ex.D1/R2 was in a sound disposing mind and that the Will was read over to him and after admitting its contents thumb marked the same in their presence and, thereafter, each of them signed in token of its correctness. The mere fact that has sought to be projected by the respondents that DW2 Charan Singh and DW3 Harbans Lal are related to the beneficiary is a misconstruing of the evidence and it has come in the cross-examination of DW2 Charan Singh that Karmi is his sister only from neighbourhood which is commonly so in the village and has elaborated that DW3 Harbans Lal is not collateral of the defendant and there is a difference of 15/16 degrees of relationship from Karmi. Thus, not much to hold in favour of the respondents and it has come in the cross-examination of DW3 Harbans Lal that the husband and the wife lived together. Mr. Saggu learned counsel for the respondents could not pinpoint any material contradiction in the statements of both these material witnesses and it is not a legal requirement that it is for the beneficiary to step into the witness box to prove due execution of the Will rather essential prerequisite qua Ex.D1/R2 has already been brought about in terms of S.63 of the Indian Succession Act 1925. Having regard to the fact that from the relative stand the initial onus which was upon the defendant to have proved her Will Ex.D1/R2 stood discharged and it shifted upon the plaintiffs to rebut this evidence and to establish their stand of forgery. Mr. Saggu, in his arguments could not pinpoint even an iota of evidence led in that direction. Not much benefit can be sought out of applicability of Section 33 of the Evidence Act as has sought to be projected in the impugned findings. 12. Thus, from it all reveals that neither the trial Court has wholly considered the stands of the two sides, the evidence led by the parties and proved on the records and it is more on the surmises and conjectures, conclusions have been drawn which were contrary to the well entrenched principles of law and which has thus gone into the roots of the findings making them not only erroneous and perverse in approach but also illegal and infirm in their outcome. 13. Thus, in view of the discussions, the substantial questions of law are invariably answered in favour of the defendant/appellant upholding Will Ex.D1/R2 which is also last valid Will executed by the testator and has precedence over the previous Will Ex.P1, thereby, setting aside Will Ex.P1. 14. Thus, findings of the two Courts below are wholly incorrect appreciation of the evidence and have wrongly applied the law pertaining to Wills, thereby, necessitating setting aside of these lower Court’s findings by way of acceptance of the instant appeal, thereby, upholding legality and validity of the Will Ex.D1/R2 executed by the deceased Jai Chand in favour of his wife Karmi-appellant. 15. No costs. ---------0.B.S.0------------ —————————