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2015 DIGILAW 1122 (HP)

Subhash Chand v. Surender Singh

2015-08-18

RAJIV SHARMA

body2015
JUDGMENT : Justice Rajiv Sharma, J. This appeal is instituted against the judgment dated 30.6.2006, rendered by the learned District Judge, Hamirpur, H.P. in Probate case No.4/2004. 2. Key facts, necessary for the adjudication of this appeal are that respondent Surender Singh instituted a petition under Section 276 of the Indian Succession Act, 1925, seeking probate of Will dated 13.3.2001, executed by Sarwan Singh son Sh. Biri Singh son of Sh. Lala, resident of Tika Garli, Mouza Garli, Tehsil Barsar, Distt. Hamirpur, H.P. He was the grandson of late Sh. Sarwan Singh, the testator of the Will, who executed Will in his favour on 13.3.2001. The testator died on 30.5.2003. The Will was duly registered. He was entitled to get movable and immovable property of Sarwan Singh, deceased. He approached the authorities to make payment on the basis of Will, however, they asked him to produce the probate of Will dated 13.3.2001. 3. The respondent No. 2, general public was duly served by way of publication. The appellants filed the reply. They have denied the relationship of respondent No. 1 with the deceased. According to them, they were only children of deceased Sarwan Singh. The Will was outcome of fraud and mis-representation. The appellant No. 2 was married and she was living at Village Dugha. The appellant No. 1 was living at Delhi. They were the only legal heirs of deceased Sarwan Singh. The respondent No. 3 Executive Engineer did not file any reply. 4. The rejoinder was filed by respondent No. 1. Issues were framed by the learned trial Court on 28.6.2005. The learned trial Court granted the probate of Will Ext. PW-1/A to the respondent No.1. Hence, this appeal. 5. Mr. Rajesh Kumar, Advocate, for the appellants has vehemently argued that respondent No.1 Surender Singh has failed to prove Will Ext. PW-1/A, dated 13.3.2001. The Will Ext. PW-1/A was surrounded with suspicious circumstances. He has also submitted that by way of Will, the natural heirs could not be disinherited from the property. On the other hand, Mr. K.D.Sood, Sr. Advocate, for respondent No. 1 has supported the judgment dated 30.6.2006 of the learned trial Court. 6. I have heard learned counsel for the parties at length and gone through the records and judgment very carefully. 7. The Will is Ext. PW-1/A. It was duly registered with Sub Registrar, Barsar. 8. On the other hand, Mr. K.D.Sood, Sr. Advocate, for respondent No. 1 has supported the judgment dated 30.6.2006 of the learned trial Court. 6. I have heard learned counsel for the parties at length and gone through the records and judgment very carefully. 7. The Will is Ext. PW-1/A. It was duly registered with Sub Registrar, Barsar. 8. According to PW-1 Surender Singh, he was present at the time of execution of Will Ext. PW-1/A by Sarwan Singh. He has proved the copy of Will Ext. PW-1/A. 9. Sh. Dev Raj, PW-2 has deposed that the copy of Will Ext. PW-1/A was true and correct, as per Will dated 13.3.2001, registered in the office of Sub Registrar, Barsar. 10. PW-3 Julfi Ram has scribed the Will at the instance of Sarwan Singh. The Will Ext. PW-1/A was executed by Sarwan Singh in sound disposing state of mind. The contents of the will were read over and explained to him and Sh. Sarwan Singh after admitting the contents of the same to be true and correct had appended his signatures in presence of the witnesses and witnesses appended their signatures in the presence of Sarwan Singh. He entered the Will against Sr. No. 73 dated 13.3.2001 in his register and also obtained the signatures of Sarwan Singh. He denied the suggestion in the crossexamination that Sarwan Singh was under mental pressure at the time of execution of Will Ext. PW-1/A. 11. PW-5 Rattan Chand and PW-6 Joginder Singh were the marginal witnesses of the Will. According to them, Will Ext. PW-1/A was scribed in their presence by Sh. Julfi Ram. The contents of the same were read over and explained to Sarwan Singh. He after admitting the contents of the Will Ext. PW-1/A as true and correct singed the same in their presence and both of them in the presence of Sarwan Singh put their signatures on the Will. The Will Ext. PW-1/A was executed by Sarwan Singh in a sound state of mind. It was presented before the Registrar for registration. The contents of the Will were read over and explained by Sub Registrar to Sarwan Singh, which were admitted to be true and correct by Sarwan Singh. He admitted his signatures as true and correct. 12. RW-1 Subhash Chand has not stated that the Will Ext. It was presented before the Registrar for registration. The contents of the Will were read over and explained by Sub Registrar to Sarwan Singh, which were admitted to be true and correct by Sarwan Singh. He admitted his signatures as true and correct. 12. RW-1 Subhash Chand has not stated that the Will Ext. PW-1/A was result of fraud and misrepresentation of facts and outcome of undue influence. He has not deposed that Sarwan Singh was not in sound disposing state of mind at the time of execution of Will Ext. PW-1/A. The Will Ext. PW-1/A dated 13.3.2001 was duly executed. It was scribed by PW-3 Julfi Ram. PW-5 Rattan Chand and PW-6 Joginder Singh were the marginal witnesses of the Will. It was registered before the Sub Registrar, Barsar, Distt. Hamirpur. The contents of the Will were also explained to Sarwan Singh. He has appended his signatures over the same. PW-2 Dev Raj has testified that the copy of Will Ext. PW-1/A was true and correct, as per Will dated 13.3.2001, registered in the office of Sub Registrar, Barsar. 13. There is no tangible evidence on record to show that Surender Singh has played a dominant role at the time of execution of the Will. The appellants could not explain the suspicious circumstances surrounding the Will Ext. PW-1/A. Merely that the natural heirs have been excluded will not make the Will suspicious. It has come on record that Surender Singh was looking after Sarwan Singh. The appellant No. 2 after her marriage had gone to village Dugha. The appellant No. 1 was residing at Delhi. Surender Singh was looking after Sarwan Singh, being the grandson. The Will has been executed in his favour by Sarwan Singh since he was looking after him. The appellant Subhash Chand was at Delhi for the last 20 years. Appellant Subhash Chand could not prove that he was looking after his father. The appellants have not even disputed the signatures of Sarwan Singh on Will Ext. PW-1/A. The Will was duly executed and attested on 13.3.2001. 14. Their lordships of the Hon'ble Supreme Court in the case of Gurdev Kaur and others vrs. Kaki and others, reported in (2007) 1 SCC 546 , have held that the Court does not sit in appeal over the right or wrong of the testator's decision. PW-1/A. The Will was duly executed and attested on 13.3.2001. 14. Their lordships of the Hon'ble Supreme Court in the case of Gurdev Kaur and others vrs. Kaki and others, reported in (2007) 1 SCC 546 , have held that the Court does not sit in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. The contents of the Will have to be appreciated in the context of the circumstances, and not vis-a-vis the rules for intestate succession. Their lordships have held as under: ?21. When execution of the Will is fully proved then in order to ascertain the wishes of the testator we have to look to the text of the Will. The intention of the testator has to be discerned from the language used in the Will. In view of such clear and unambiguous language used in this Will perhaps, no other interpretation was possible. The Trial Court clearly arrived at a conclusion that the deceased Chanan Singh had executed the Will in favour of his wife, Bhagwan Kaur. 28. The findings arrived at by the High Court are totally erroneous. The Court does not sit in appeal over the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. 77. The High Court has clearly deviated from the settled principle of interpretation of the Will. The Court does not sit in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest. 78. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest. 78. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the Will have to be appreciated in the context of his circumstances, and not vis-`-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property. 79. If a Will appears on the face of it to have been duly executed and attested in accordance with the requirements of the Statute, a presumption of due execution and attestation applies.? 15. In the instant case, the Will was executed by Sarwan Singh on 13.3.2001 and Sarwan Singh died on 30.5.2003. The testator, Sarwan Singh was in sound disposing state of mind at the time of execution of the Will. The learned District Judge, has rightly granted probate of Will Ext. PW-1/A dated 13.3.2001 after correctly appreciating the oral as well as documentary evidence on record. 16. Accordingly, there is no merit in this appeal and the same is dismissed.