R.L Anand, J. — Gurdial Singh, who remained unsuccessful both in the trial Court as well as in the first appellate Court, has filed the present regular second appeal, which has been directed against the judgment and decree dated 2.2.1987 passed by the Court of Shri G.S Khurana, Additional District Judge, Jalandhar, who affirmed the judgment and decree dated 18.10.1984 passed by the Court of Sh. Dhian Singh, Sub Judge, Ist Class, Nakodar.
2. Brief facts of the case are that Gurdial Singh filed a suit praying that a decree for declaration be passed in his favour and against the defendant-respondent Smt. Rattan Kaur, declaring that the plaintiff-appellant is the owner and in possession of the land measuring S3 Kanals 18 Marlas, fully described in the head note of the plaint, situated in the area of village Shidhwan, Tehsil Nakodar, District Jalandhar, on the basis of the Will dated 2.1.1969 The plaintiff also prayed for perpetual injunction that defendant Smt. Rattan Kaur be restrained from interfering with the peaceful possession of the plaintiff of the suit property.
The case set up by the plaintiff was that Jagat Singh son of Fateh Singh was the real uncle of the plaintiff and he was the owner of the land in dispute. Said Jagat Singh died on 20.7.1974 and he executed a Will dated 2.1.1969 in his favour because of the services rendered by the plaintiff to the deceased during his life-time. Jagat Singh was unmarried. The plaintiff used to look after him. The plaintiff is in possession of the suit property. Defendant Smt. Rattan Kaur is a clever lady and managed to get mutation of inheritance in her favour. The order of the revenue authority sanctioning mutation in favour of the defendant has caused a cloud on the rights of the plaintiff. The defendants wants to take undue advantage of the mutation order and wants to disturb the possession of the plaintiff. The defendant alleges that Jagat Singh has executed a Will dated 26.11.1971 in her favour. In fact, no such Will was executed by the deceased in favour of the defendant. The Will propounded by the defendant dated 26.11.1971 is a forged document. The deceased never executed any Will in favour of the defendant. The Will propounded by the defendant was the result of fraud, misrepresentation and concealment of material facts.
3. The suit was contested by the defendant on the plea that Jagat Singh was, in fact, the owner of the property. According to the defendant, her husband Bnajan Singh and the plaintiff-Gurdial Singh are the real brothers. Jagat Singh deceased was their uncle. He used to live with her and her husband Bhajan Singh. She used to render her services to Jagat Singh, who executed a registered Will dated 26.11.1971 in her favour when the deceased was in sound disposing mind. The Will dated 2.1.1969 in favour or the plaintiff was cancelled by Jagat Singh. On the basis of the Will dated 26.11.1971 the mutation was sanctioned in her favour. Jagat Singh deceased never lived with the plaintiff and the plaintiff had no occasion to look after the deceased. The possession of the plaintiff over the land in dispute is in the capacity of a tenant. An application for the ejectment of the plaintiff from the land in question was filed. The defendant also pleaded that the plaintiff is estopped from filing the present suit. In the mutation proceedings the plaintiff admitted the genuineness of the Will dated 26.11.1971 The plaintiff has no cause of action and the suit is not properly valued for the purpose of court-fee and jurisdiction. Finally, the defendant pleaded that Jagat Singh did not execute any Will dated 2.1.1969 in favour of the plaintiff.
4. From the above pleadings of the parties, the learned trial Court framed the following issues:—
1. Whether the Will dated 2.1.1969 was executed by Jagat Singh deceased in favour) of the plaintiff ?OPP.
2. If issue No. 1 is proved, then whether the Will was the result of fraud, misrepresentation, undue influence and pressure? OPD.
3. Whether a Will dated 26.11.1971 was executed by Jagat Singh in favour of defendant and previous Will dated 2.1.1969 was cancelled by him? OPD.
4. Whether the plaintiff is in possession of the land in dispute as owner? OPD.
5. Whether the plaintiff is estopped to file the suit by his act and conduct and consent? OPD.
6. Whether the suit is not properly value for the purposes of court-fee and jurisdiction? OPD.
7. Relief.
The parties led evidence in support of their pleas and on the conclusion of the trial, issue No. 1 was decided in favour of the plaintiff, holding that Jagat Singh executed a Will dated 2.1.1969 in favour of the plaintiff. The finding has been given correctly by the trial Court because there could not be any other evidence because the case set up by the defendant herself was that Jagat Singh deceased executed Will dated 26.11.1971 by cancelling Will dated 2.1.1969 Issue No. 2 was also decided in favour of the plaintiff and the trial Court held that the Will dated 2.1.1969 was not the result of any fraud, misrepresentation, undue influence and pressure. However, the findings on issue No. 3 went against the plaintiff and the trial Court as well as the first appellate Court held that the Will dated 26.11.1971 has been executed by Jagat Singh in a valid manner while in sound and disposing mind in favour of the defendant and the said Jagat Singh has cancelled the earlier Will dated 2.1.1969 through the Will dated 26.11.1971 Issue No. 4 was decided in favour of the plaintiff and it was held that the plaintiff is in possession of the land in dispute but not in the capacity of the owner. Issues Nos. 5 and 6 Were also decided in favour of the plaintiff and against the defendant. Finally on the basis of the findings given under issue No. 3, the suit was dismissed by the learned trial Court. The learned first appellate Court affirmed the findings of the trial Court on issue No. 3 and dismissed the appeal with costs. Aggrieved by the judgment of the trial Court as well as of the first appellate Court, the present appeal has been filed by the unsuccessful plaintiff.
5. I have heard Shri A.K Chopra and Shri R.D Bawa, Advocates, on behalf of the appellant and Shri G.S Nagra, Advocate, on behalf of the respondent, and with their assistance have gone through the record of the case. It may be stated at the first instance that the parties addressed arguments before me only on issue No. 3 and I shall confine my discussion on this issue.
6. Assailing the finding of the learned trial Court as well as of the first appellate Court, it was argued by the learned counsel for the appellant that it stood proved on the record that Smt. Rattan Kaur defendant took active part in the execution of the Will (Ex. D1) dated 26.11.1971 In support of his contention, the learned counsel drew my attention to the Will itself by stating that it is a proved fact that deceased Jagat Singh was a man of 90 years. He was taken in a conveyance to Nakodar by the defendant. Deceased Jagat Singh, an old man of 90 years, could not arrange a conveyance of his own. The arranging of conveyance by the beneficiary amounts to an active participation leading to the execution of the Will and this is a suspicious circumstance surrounding the Will and making the whole Will as a bogus affair. On the contrary it was submitted that it was the deceased himself who went in a conveyance to Nakodar from Jalandhar and even if it is assumed for the sake of argument that the defendant took steps in taking the executant to Nakodar, this does not mean that the defendant exercised undue influence and misutilised her position, leading to the execution of the Will, which is a registered document and has been duly proved according to law.
7. After applying my mind to the rival contentions, I am of the considered view that the first submission by the learned counsel for the appellant is devoid of any merit. The presence of beneficiary by the side of the executant itself is not a ground to jump to the conclusion that the Will has been surrounded with suspicious circumstances. Even if it is assumed for the sake of argument that the defendant paid the conveyance expenses for taking the executant to Nakodar from Jalandhar, that circumstance alone will not persuade me to jump to the conclusion to hold that the Wili (Ex. D1) has been procured by the defendant. I have to see under what circumstances the Will has been executed by Sh. Jagat Singh deceased, who was admittedly the owner of the property. Plaintiff Gurdial Singh and Bhajan Singh are the two real brothers and they are the nephews of Jagat Singh deceased. From the record it appears that Bhajan Singh had two wives, namely, Smt. Gian Kaur and Smt. Rattan Kaur. The earlier Will dated 2.1.1969 (certified copy of which is Ex.P2) was in favour of the plaintiff Gurdial Singh. Specific averments and reasons have been given by Sh. Jagat Singh deceased why he was cancelling the earlier Will dated 2.1.1969 by executing registered Will dated 26.11.1971 (Ex.D1). There is a specific recital in Exhibit D1 by the deceased that his nephew Gurdial Singh appellant has become disobedient and that the deceased is fed up on account of the bad habits of Sh. Gurdial Singh. Also it is recited that he is executing the Will (Ex. D1) while in full sound and disposing mind in favour of Smt. Rattan Kaur. There is a categorical admission on the part of the deceased that Smt. Rattan Kaur is the wife of Bhajan Singh son of Dalip Singh, who is related to him as Bhatiji Nuh. Also it is stated by the deceased that the defendant looks after him and that he is very happy on account of the services rendered by her. This Will is a registered document and has been attested by the witnesses. The document was presented before the Sub Registrar, Nakodar, who read out the contents of the Will to the executant and the testator and thereafter it was registered. It is a common case of the parties that Jagat Singh survived for three years and he died in the year 1974 after the execution of the Will (Ex. D1). Now it is to be seen whether the Will (Ex. D1) has been duly proved. The onus was on the defendant and she examined Sh. Dey Raj (D.W 1), who was the scribe and who categorically stated that the contents of the Will were read over to the testator, who thumb marked in his presence and in the presence of the witnesses and who also attested the Will in the presence of the executant. Not an iota of suggestion was put to the scribe that the defendant Smt. Rattan Kaur exercised her influence upon the deceased leading to the execution of the Will. Ajit Singh (D.W 2) is an attesting witness. He has also proved the execution of the Will as well as its registration by identifying his signatures. Smt. Rattan Kaur has also appeared as her own witness as D.W 3. She has categorically stated that the deceased used to reside with her at Jalandhar in their house. She and her husband Bhajan Singh used to look after the deceased, who executed the Will in her favour. At the time of the execution the deceased was in a sound disposing mind. He was hail and hearty. He was in a position to form a rational judgment. She of course admits in her cross-examination that she and her husband accompanied the executant at the time of the execution of the registration. From this admission on the part of the respondent it is difficult for me to come to the conclusion that Smt. Rattan Kaur was in a position to change the mind of the testator. From the statements of D.W.1, D.W 2 read with the statement of D.W 3, I am of the considered view that the deceased executed a valid Will (Ex. D1) dated 26.11.1971 and he cancelled the earlier Will which was executed in favour of the plaintiff. Even from the statement of D.W 4 Jaswant Singh it stands established that the deceased used to reside with Bhajan Singh and his wife Smt. Rattan Kaur and that the deceased was being looked after by them. The house of this witness Jaswant Singh is situated at a distance of 3/4 houses from that of the defendant. Jagat Singh deceased originally hailed from village Sidhwan. He died at Jalandhar in the house of the defendant and after his death his dead body was brought to village Sidhwan. It has been categorically stated by Jaswant Singh (D.W 4) that he accompanied Bhajan Singh and Smt. Rattan Kaur to village Sidhwan where the cremation of the deceased took place. From this admission learned counsel for the appellant wanted to raise a presumption that Jaswant Singh was an interested witness, but no such inference can be drawn. I cannot lose sight on the fact that in the capacity of a neighbourer, at that hour of sorrow, he could accompany the defendant and her husband to Sidhwan. The appellant has not been able to show from any documentary evidence that the deceased was not being looked after by the defendant and her husband. When the natural recitals have been made in the Will itself by the deceased, I am only supposed to examine whether any suspicious circumstances are surrounding the Will or not. No doubt, initial onus lies upon the defendant to prove the genuineness of the Will (Ex. D1), but once that onus has been discharged successfully, it has to be disapproved successfully by the plaintiff. Since the plaintiff has failed to do so, I will have to hold that the Will (Ex. D1) has been executed by Jagat Singh during his life-time and he bequeathed the land in dispute to the defendant.
8. It was then submitted by the learned counsel for the appellant that it is not proved on the record that defendant Smt. Rattan Kaur was the wife of Bhajan Singh/Harbhajan Singh and that the recital in the Will (Ex. D1) is incorrect. The argument is devoid of any merit. It appears that Bhajan Singh married twice - once with Smt. Rattan Kaur defendant. He also had wife by the name of Smt. Gian Kaur. From the womb of Smt. Gian Kaur a daughter Jaswirider Kaur was born. It appears from Ex.P12 that statement of Smt. Jaswinder Kaur was recorded on 2.4.1980 by the Court of Chief Judicial Magistrate in some proceedings under Section 100 of the Criminal Procedure Code. The learned counsel for the appellant wanted to take the support that, in fact, Smt. Rattan Kaur was a lady or loose character and she wanted to compel her step-daughter Smt. Jaswinder Kaur to indulge in an immoral life. The learned counsel wanted to convey that there were no earthly reasons on the part of Jagat Singh deceased to ignore Smt. Gian Kaur, who was admittedly the wife of Bhajan Singh and this fact has also been admitted by Smt. Rattan Kaur. I fail to understand how this document (Ex. P12) helps the appellant. Firstly this statement was recorded in the criminal proceedings. The defendant had no opportunity to cross-examine Smt. Jaswinder Kaur. Even if the document Ex. P12 is taken on its face value, Smt. Jaswinder Kaur, who was hostile to Smt. Rattan Kaur defendant, admits that her father Bhajan Singh has another wife (Smt. Rattan Kaur). It appears that the relations between Gurdial Singh and Jagat Singh did not remain cordial and for this reason the Will dated 2.1.1969 was changed and cancelled by the deceased on 26.11.1971 The counsel for the appellant then referred to an affidavit attested on 8.6.1957 by Bhajan Singh, who has deposed that Smt. Gian Kaur is his legally married wife. This document cannot come to the rescue of the appellant because the parentage of Bhajan Singh has been given as Jagat Singh. Moreover in this appeal we are not determining if Harbhajan Singh or Bhajan Singh is the legal husband of Smt. Rattan Kaur or not. The point in controversy is if the document D1 is surrounded by suspicious circumstances or not. I have already stated above that the Will stood proved from the statement of Ajit Singh, whose residence is at Jalandhar and resides hardly at a distance of 100 yards from the house of the defendant. This witness knew the testator personally. The Will is also attested by a Lambardar by the name of Mulkh Raj. There was no particular interest of Ajit Singh, attesting witness in favour of the legatee.
9. It was then submitted on behalf of the appellant that the thumb impression of the deceased was obtained by the official of the Sub-Registrar in a separate room and that the registration has been done in a perfunctory manner. This contention is not borne out from the statement of D.W 2 Ajit Singh, who categorically denied that the thumb impression of the testator was obtained by the official sitting in some other room. The appellant has not examined any official of the Registration Department. The registration of the Will is a prima facie evidence to prove that the legal formalities for the due registration were duly completed by the Sub Registrar. Also it was argued that the deceased was an old man of 90 years and he could not execute the Will While in a sound disposing mind. The argument is again devoid of any merit. When the Will in favour of the plaintiff was executed by the deceased, at that time the deceased was of 88 years. Not an iota of evidence has come on the record that within a span of two years, the deceased was so incapacitated that he could not execute any Will.
10. Also it was argued that no intervening circumstances have been proved on the record by the propounder that the relations between the deceased and the plaintiff became hostile and by which actions of the plaintiff, the deceased was annoyed. The argument is again devoid of any merit. The recitals in the Will (Ex. D1) clearly suggest that on account of the vices of the plaintiff, the deceased was not happy with him.
11. Learned counsel for the appellant has relied on a band of authorities and I will deal each one of them as follows:—
12. The first authority which has been pressed into service is Ramchandra Rambux v. Champabai and others, AIR 1965 S.C 354. With the help of this authority it has been argued that the Will in question is surrounded by suspicious circumstances and the onus is oft the respondent to remove those suspicions. It was submitted that the beneficiary under the Will has taken a prominent part in the execution of the Will. Therefore, the Will should be disbelieved and rejected. This authority is not applicable to the facts in hand. So far as the legal proposition is concerned, it is consistent right from 1959 and if the case law is required in this regard, I can take the assistance of H. Venkatachala Iyengar v. B.M Thimmajamma, AIR 1959 S.C 443. Incidentally this ruling was also taken note of by the Hon'ble Supreme Court in the ruling relied upon by the learned counsel for the appellant. I have already held above that the beneficiary Smt. Rattan Kaur did not prevail upon the will of the testator in executing the Will in her favour. She simply accompanied the testator. This role of her is not per se sufficient for annulling the Will.
13. The second authority relied upon by the learned counsel is Kapoor Singh and another v. Jangir Singh (Deceased) and others, 1976 R.L.R 237. In this case it was proved that the beneficiary took a leading part in giving instructions to the execution of the Will. There is no such evidence in the present case. The third authority reported as Sarwan Singh and another v. Gurdev Kaur and others, 1975 P.L.J 201, also does not advance the case of the appellant because the testator himself explained in the subsequent Will as to why he was inclined to cancel the first Will relied upon by the plaintiff-appellant. No doubt, registration per se is not the conclusive evidence to hold that the testator was in a sound disposing mind, but the attending circumstances leading to the execution of the Will in question would show that the testator made his independent mind for the cancellation of his earlier Will and he was fully conscious about his actions. The authority of Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, AIR 1962 S.C 567, stands on a different footing and has no bearing so far as the facts of the present case are concerned. Reliance was also placed on A. Chandrabati v. Laxmi Dei, AIR 1991 Orissa 289, in which it was held that the burden of proof lies upon the propounder of the Will for its due execution. In the present case this onus has been successfully discharged by the defendant-respondent by leading direct evidence. I have also explained above why Sh. Jagat Singh cancelled the earner Will dated 2.1.1969 by substituting it by Will dated 26.11.1971 in favour of the defendant. There was no suspicion surrounding the Will Ex. D1. Cogent and convincing explanation was given by the testator himself. However, the case has to be adjudged on its own merits.
14. Learned counsel for the respondent has invited my attention to the citation reported as Rabindra Nath Mukherjee and another v. Panchanam Baneriee, 1995 (3) P.L.R 594 : 1995 (3) RRR 520 (SC), where it was held that even if the witnesses to the document are interested, if the Sub Registrar has certified that the same had been read over to the executor, who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. Also it was held that the deprivation of natural heirs by the testator should not raise a suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession. In the present case the evidence on the record is overvoluminous and convincing why Shri Jagat Singh deceased cancelled the earlier Will dated 2.1.1969 in favour of the plaintiff by executing Will dated 26.11.1971 in favour of Smt. Rattan Kaur. There is a consistent finding of fact both by the trial Court as well as by the first appellate Court, which cannot be interfered with in the second appeal, specially when this Court has not been able to find out any material that the findings of the trial Court as well as the first appellate Court were palpably erroneous.
15. Resultantly, I am of the considered view that this appeal is without any merit and the same is hereby dismissed with costs. The counsel's fee is assessed at Rs. 500/-.
Appeal dismissed