Kartar Kaur v. Bhagwan Kaur .

K.P Bhandari, J. — Defendant-appellant have come up in regular second appeal against the judgment and decree of the first appellate Court affirming on appeal those of the trial Judge decreeing the suit of plaintiff-respondent No. 1 for declaration that she was owner of 1/2 share of the suit property and was entitled to its possession.

2. Bachan Singh was the owner of the disputed property situate in the revenue estates of Moga Mehla Singh and Rania, Tehsil Moga, District Faridkot. He died on January 4, 1980, leaving behind two widows, namely, Smt. Bhagwan Kaur and Smt. Kartar Kaur. He bequeathed his entire estate in favour of Ranjit Singh, his wife Kartar Kaur's brother's son under a registered Will dated March 30, 1977. On May 13, 1980, Smt. Bhagwan Kaur, plaintiff-respondent No. 1 (hereinafter the plaintiff) filed a suit for declaration to the effect that she had 1/2 share in the suit property and was entitled to its possession against her co-widow Kartar Kaur, Ranjit Singh, legatee under the Will dated March 30, 1977 (the contesting defendants) and 7 other defendants, who had no concern with the property.

3. The suit was contested by the contesting defendants. They pleaded that the deceased had no issue. He treated Ranjit Singh, defendant No. 2, as his own son who had rendered services to him. The deceased bequeathes his estate to Ranjit Singh for the services rendered. He made sufficient arrangement for maintenance of the plaintiff.

4. From the pleadings of the parties, the following issues were framed by the trial Judge on October 15, 1980:—

1) Whether the plaintiff is not in possession of any property? If so, to what effect? Onus on parties.

2) Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPD

3) Whether plaintiff is the owner of the property left by Bachan Singh deceased? If so, to what effect? OPP

4) Whether the plaintiff is entitled to the declaration prayed for and also to the relief of joint possession in the alternative? OPP

5) Whether Bachan Singh deceased had executed a Will dated 30-3-1977 in favour of defendant No. 2? If so, to what effect? OPD

6) What arrangement Bachan Singh deceased had made for plaintiff Bhagwan Kaur and to what effect? OPD

7) Relief.

5. Under issue No. 1, it was held by the trial Judge that plaintiff was entitled to possession of her share in the disputed land, but it was subject to the decision regarding the validity of the Will dated March 30, 1977; issue No. 2 was decided in favour of the plaintiff and it was held that the suit was properly valued for purposes of Court fee and jurisdiction; issue No. 3 was decided in favour of the plaintiff and it was held that she being one of the heirs of the deceased was entitled to 1/2 share in the estate of the deceased; issued No. 4 was decided in favour of the plaintiff and it was held that plaintiff and her co-widow Smt. Kartar Kaur were entitled to possession in the property in dispute in equal shares, although Smt. Kartar Kaur was in possession of the landed property left by her late husband; issue No. 5 was decided against the defendants and it was held that the deceased did not executed a valid will; under issue No. 6, it was held that the plaintiff owned 8 Kanals 9 Marlas of land situated at Rania, Tehsil Moga, District Faridkot, but that was not sufficient for her maintenance; that the testator was a man of means and he was not expected to ignore the claim of his two wives while bequeathing his estate in favour of a stranger. On ultimate analysis, the plaintiff's suit was decreed as indicated above.

6. The contesting defendants assailed the judgment and decree of the trial Judge in appeal before the first appellate Court. The only question raised before the first appellate Court was whether the deceased had executed a valid Will in favour of Ranjit Singh, defendant No. 2. The first appellate Court without adverting to the evidence on record presumed that the execution of the Will was surrounded by suspicious circumstances and invalidated the same. The contesting defendants have come up in regular second appeal.

7. The only question which arises for determination in this regular second appeal is whether the deceased had executed a valid Will in favour of Ranjit Singh, defendant-appellant No. 2. It is unfortunate that the first appellate Court permitted sentiments to prevail over the established legal proposition and the proved facts of the instant case. It has come in evidence that the deceased had been working as a Clerk with a lawyer. He was a man of means having agricultural land situate in revenue estates of village Rania and Moga Mehla Singh, Tehsil Moga, District Faridkot. He executed a registered Will dated March 30, 1977 Ex. D.1, bequeathing his entire estate in favour of Ranjit Singh, defendant No. 2. The Will is in Punjabi script and its English translation reads thus:—

“I, Bachan Singh son of Gajjan Singh son of Kirpal Singh, aged 65 years, am a resident of Moga Mehla Singh, Tehsil Moga. I, the executant, have no male issue. Ranjit Singh son of Sarwan Singh son of Bhagat Singh, resident of Rania, who is the son of my brother-in-law (wife's brother), resides with me. I am happy with him. I am an old man. There is no certainty of my life. I fear that after my death, a dispute may not arise over my property and my property may not be destroyed and ruined. Therefore, I consider it necessary to execute a Will. So long as I remain alive, I myself will be the owner and possessor of my own property. After my death, the son of my brother-in-law (wife's brother) named Ranjit Singh son of Sarwan Singh son of Bhagat Singh, resident of Rania at present resident of Moga Mehla Singh will be the owner of my property of every kind i.e agricultural and residential land, moveable and immoveable property, cash amount of domestic articles, situated at Moga Mehla Singh and Rania, Tehsil Moga. If my wife or other relatives file a suit about their claim in respect of this Will, they Will have no claim or right over the said property. This is my first and last Will. Hence I have executed this Will while in the enjoyment of my right live senses, so that it may serve as an authority. Dated 30.3.1977 corresponding to 9 Chaitra, 1898.”

It was attested by D.W 1 Nachhatar Singh and D.W 2 Jagtar Singh, Lambardar and a retired Patwari. It was presented for registration before D.W 3 Shri Gian Chand Jain, who was working as Sub Registrar on March 30, 1977. The attesting witnesses D.W/1 Nachhatar Singh and D.W 2 Jagtar Singh deposed that they were marginal witnesses to the Will dated March 30, 1977, Exhibit D.1 and that it was scribed by Bachan Singh, testor, who was in his senses. Its contents were read over to him and after admitting the same to be correct, he put his signature in the presence of the attesting witnesses. The Will was presented before the Tehsildar for registration. The same was read over to the testator and he put his thumb impression after admitting its contents to be correct. The attesting witnesses also appended their respective signatures. In cross-examination, it was suggested to them that the legatee was present at the time of the execution of the Will and that they had attested the Will at his asking. The Will was scribed before their arrival and the testator did not append his signature on the Will in their presence. Statements of the attesting witnesses are in Punjabi script and it will be useful to reproduce their English translation for facility of reference:—

Statement of Nachhatar Singh (D. W. 1) made on 31-8-81

“Bachan Singh was known to me. I am the marginal witness of Will marked as Exh. D. 1. The aforesaid Will was scribed at the instance of Bachan Singh. He was in his right senses and he has executed his Will on his own accord. The contents of the Will were read over to Bachan Singh and he after admitting the same to be correct, put his signatures in the presence of Jagtar Singh and me. I and Jagtar Singh put our signatures thereon in his presence. Thereafter, the Will was produced before the Tehsildar. The contents of the Will were also read over to him there also and he had put his signature after admitting the same to be correct. I and Jagtar Singh had put our signatures thereon. The endorsement made thereon is marked as Exh. D1.A.

Cross - examination:

I belong to village Jhandiana Khurdi which is situated at a distance of 10/12 miles. I had no relation with Bachan Singh nor I was on visiting terms with him. I had small acquitance with him. I do not know father's name and grandfather's name of Bachan Singh. On that (day), I had gone to Moga in order to get the sale deed registered. Ranjit Singh also reached there. I had put my signature at the instance of Ranjit Singh defendant. The Will, Exh. D.1, was scribed before my arrival and I put my signatures thereon at the instance of the defendant. Neither Bachan Singh nor the defendant and any other witness had put his signature on Exh. D.1 I had also not put my signature on Exh. D.1 in the presence of Bachan Singh. I did not know the other witnesses. The clerks of the office of Sub Registrar had got my signature affixed on the endorsement marked as Ex. D.1.A. I do not remember whether I was present before the Tehsildar at the time of attestation of the Will. The contents of the Will marked as Exh. D.1 were not read over by the Sub-Registrar before me. Ranjit Singh might have borne the expenditure incurred on the execution of the Will. Since it is a matter of 3/4 years back, I am not confirmed about it. I do not know whether the matter of marriages of the executant of the Will was taken up at the time of getting the Will registered or not as to how many wives he had. I did not meet Bachan Singh before and after the execution of the Will. It is incorrect to say that I have deposed falsely. I do not know whether the Will, Exh. D.1, was got executed by producing a fictitious or real person.

Re-examination:

I had some acquaintance with Bachan Singh.”

Statement of D. W.2 Jagtar Singh, Lambardar:

“I am a retired Patwari. I know Bachan Singh. He was a cultivator, and also working as a Munshi (Clerk) of a lawyer. I was elected as Lambardar after retirement. I am the marginal witness of Exh. D-1. Bachan Singh had executed the aforesaid Will as per his own accord and he was in his right senses. The contents of the Will were read over to Bachan Singh and who after admitting the same to be correct put his signatures in the presence of Nachhattar Singh and me and I and Nachhatar Singh had put our signatures in his presence. The Will was produced before the Sub - Registrar. The contents of the Will were also read over to Bachan Singh (before the Sub-Registrar). Bachan Singh put his signature having admitted the same to be correct. I and the other witness had put our signatures thereon. The endorsement made thereon is Exh.D1/4.

Cross-examination:

I had no relation with Bachan Singh, nor I had any dealing with him. Ranjit Singh, in whose favour the Will was executed, also accompanied us at the time of execution of the Will. Ranjit Singh had also brought me in order to put my signatures as a witness on the Will. Ranjit Singh had borne the expenditure incurred on the execution of the Will. The Will was already (got) scribed before my arrival. Bachan Singh and other witnesses had already put their signatures on Exh. D.1 before my arrival. I had put my signatures on reaching there. Thereafter the Will was taken to the room of the Clerks of the office of the Sub-Registrar and the clerks of the office of the Sub-Registrar got secured my signatures. The clerks affixed all the seals on Exh. D.1 and completed the document to be registered. No entry was made on the Exh. D.1.A (endors) before the Sub-Registrar; stated himself that the Sub-Registrar; had read over the contents of the Will. It is incorrect that Bachan Singh had not got executed the Will, Ex. D. 1, and I have give false evidence.”

A close scrutiny of the cross-examination of the aforesaid attesting witnesses points out that they had tried to help the plaintiff by giving a twist to their testimony in examination-in-chief. In examination-in-chief they were categories that the Will was signed by the testator in their presence and that they had appended their signatures thereon in the presence of the testator. The Will was presented for registration before D.W 3 Shri Gian Chand Jain, who was then working as Sub-Registrar. D.W 3 in unequivocal terms stated that the Will, Ex. D.1, was read over to the testator who, after admitting the contents of the same, signed the endorsement, Ex. D.1.A, in his presence. The statement of this witness reads thus:

“I was working as Sub-Registrar, Moga on 30.3.1977 The will Ex. D.1 dated 30.3.1977 was presented before me by Bachan Singh, execution (should be ‘executant’) for registration purpose. The will Ex D.1 was read over by me to Bachan Singh who admitting the contents as correct and signed Endst. Ex. D1.A in my presence and in the presence of the witness. The witnesses signed Endst. Ex. D1.A in the presence of Bachan Singh. He was identified by Jagtar Singh and Nachattar Singh. Jagtar Singh Namberdar was known to me.

The execution was in sound disposing mind at that time.

Bachan Singh was not personally known to me. The entire Endst No. D1.A is not my hand. Ex. D1.A is in the complete in the hand of registration clerk.”

No suggestion was made to this witness that the contents of the Will, Ex. D.1, were not read over to the testator and that the endorsement, Exh. D.1.A, on the back of the Will was merely a formality. D.W 3 was an official witness and it is not even remotely suggested that he was not performing his official duties as enjoined by law or was acting in a partisan manner. The due execution of the Will is proved from the sworn testimony of the attesting witnesses to the will, viz., D.W 1 Nachhatar Singh, D.W 2 Jagtar Singh, and D.W 3 Shri Gian Chand Jain, who was acting as Sub-Registrar at the relevant time. The certificate of the Registering Officer under Section 60 of the Registration Act is a relevant piece of evidence for proving execution of the Will. The registration of a document is a solemn act to be performed in the presence of competent official appointed to act as Registrar, whose duty is to attend to the parties during the registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature Will be presumed to be done duly and in order. (See in this connection, Piara v. Pattu, AIR 1929 Lahore 711). The will Exh. D.1 has been registered. That is a strong circumstance which may, having regard to the circumstances, prove its genuineness. The evidence on record as to the registration of the Will, on close scrutiny, indicates that the registration was made in such a manner that it was brought home to the testator that the document by which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof. The registration of the Will dispels the doubt as to the genuineness of the Will. The initial onus of proving that the testator had a disposing mind and the Will was the result of his own volition lies on the propounder of the Will. The initial presumption in the case of a Will, which is natural and simple, is that where execution is proved, the testator did intend what he purports to have done by the Will. Once it is proved that the Will had been executed with due solemnities by a person of competent understanding, the burden of proving that it was executed under undue influence is on the party who alleges it. It will be useful to reproduce the observations of Lord Cranworth in Boyse v. Rossborough, (1857) 6 HLC 2(A) and in Craig v. Lamoureux, AIR 1991 P.C 132(B), which were approved by the apex Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta., AIR 1955 SC 363:

“The main question that arises for our decision is whether the Will in question was executed under the undue influence of respondent 1. When once it has been proved, observed Lord Cranworth in Boyse v. Rossborough, (1857) 6 HLC 2(A) that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleges it. Vide also Craig v. Lamoureux, AIR 1919 P.C 132(B). In the present case, it is not in dispute that the testator executed the Will in question, and that he had the requisite mental capacity at that time. The burden, therefore, is on the appellate to establish that the Will was the result of undue influence brought to bear on him by respondent 1.”

8. After execution of the Will, Exh. D.1, the testator presented it for registration and died about four years after its execution and during this period took no steps to cancel it. This per se dispels the suspicious circumstances allegedly attached to the Will. It will be pertinent to refer to the following observations of the apex Court in Satya Pal Gopal Das v. Smt. Panchubala Dasi, AIR 1985 SC 500:—

“As we said there are certain outstanding features of the case which should dispel all suspicion that may possibly otherwise attach itself to the Will. The Will was registered on June 30, 1946 and the testator died on March 12, 1950. That is to say, the testator lived for nearly four years after the execution and registration of the Will and yet he took no steps to have the Will cancelled or to revoke it. It could not be that the will was somehow brought into existence and the signatures of Nrisingha Praaasad Das were obtained on the Will be practising some fraud. The endorsements on the will show that Nrisingha Prosad Das himself had presented the Will for registration to the Sub-Registrar and that the Sub-Registrar had been called to the residence of Nrisingna Prosad Das for the purpose of registering the Will. Nrisingha Prosad Das affixed his signature twice again in the presence of the Sub Registrar, as shown by the endorsements. The endorsements also show that execution was admitted by Nrisingha Prosad Das. As earlier mentioned by us, every page of the Will has been signed by Nrisingha Prosad Das and at the foot of the Will, a note listing the various corrections made has also been signed by Nrisingha Prosad Das. Therefore, there cannot even be the slightest doubt that the document was executed by Nrisingha Prosad Das, that its execution was admitted by Nrisingha Prosad before the Sub Registrar and that Nrisingha Prosad Das himself presented it to the Sub Registrar having called him to his own residence for that purpose.”

9. The plaintiff, who appeared at the trial as P.W 1 did not even remotely challenge the execution of the Will. Her statement is in Punjabi script and the English translation of the same reads thus:—

“I do not own any land at Moga. I have filed the suit which is correct. I have got recorded in the suit that I am owner of 1/3rd share of land. Neither I had purchased any land myself nor my parents had purchased any land and given to me. He (Bachan Singh) remained ill for about 6 months. He had urine trouble and had trouble of fits. He was alright before falling ill about 6 months ago. He used to look after his property himself. He was working as a Clerk with an advocate. Before his falling ill, he himself used to mortgage and sell his land. He had purchased the land. He had no issue. It is incorrect that he brought up Ranjit Singh like sons. It is incorrect that Ranjit Singh used to reside at Moga. Kartar Kaur, Bachan Singh and I used to reside together. It is incorrect that Ranjit Singh had got performed his ‘Bhog’ ceremony. It was got performed by us. It was not performed by Kartar Kaur and I. It is incorrect that Bachan Singh executed any Will in favour of Ranjit Singh. I am in possession of the land under dispute. It is incorrect that Ranjit Singh is in possession of the said land. Banta Singh and Bhag Singh cultivate that land. Some part of the land is being cultivated by Teja Singh and Megha Singh. It is incorrect that Bachan Singh executed any will in favour of Ranjit Singh and that I have made a false statement.”

A perusal of the aforesaid statement of P.W 1 indicates that she did not challenge execution of the Will. The onus of proving the due execution of the Will, Ex. D.1, was discharged by the legatee under that Will. After the due execution of the Will stood proved, the onus that the Will was invalid for any reason shifted to the person who challenges it. The plaintiff failed to discharge the onus and in fact she had not challenged the due execution of the will.

10. As observed earlier, the testator before his death was working as a Clerk to an Advocate. He would be presumed to be in the know of the effect of the Will. The purpose was obvious. He wanted to devise his estate on his wife's nephew, who was her brother's son. The Will was executed in favour of the legatee for the services rendered. What has been attributed regarding the due execution of the will, Ex. D.1, is not inferable from the evidence on record. The Courts below were in error in holding that the Will was not validly executed. The finding recorded by the first appellate Court without adverting to the evidence is vitiated. I hold that the legatee has succeeded in proving the due execution of the Will, Ex. D.1 Once it is held that the testator executed a valid will in favour of contesting defendant No. 2, the plaintiff will have no right, title or interest in the property of the deceased. The finding on the issue that the plaintiff had share in the property of the deceased has resultantly to be answered against her. I have held that the Will, Ex. D.1, was validly executed in favour of the legatee defendant No. 2, but I have no doubt that he will make proper provision for the maintenance of the plaintiff if she is not otherwise well provided.

For the reasons stated above, the appeal succeeds, the judgments and decrees of the Courts below are set aside and the suit of the plaintiff is dismissed. However, the parties are left to bear their own costs.