1. This is a plaintiffs' suit for possession of the properties mentioned in the plaint on the basis of a will alleged to have been executed by Sardar Mohan Singh the owner of the properties in dispute. The case of the plaintiffs is that Sardar Mohan Singh died on 7th May, 1960 and before his death he had executed a will dated 2nd March, 1960 in favour of the plaintiffs who are his nephews Under the will the properties mentioned in the plaint were bequeathed to the plaintiffs and defendant No. 1 was to get a house sit Batote some cash and jewellery. It was further alleged by the plaintiffs that defendant: No. 1 was not a legally wedded wife of Sardar Mohan Singh but was only his concubine. It was similarly asserted that Prem Kaur was not the daughter of Sardar Mohan Singh but a niece of defendant No. 1 who had been living with Mohan Singh upto the date of his death. The case as amplified in evidence is further that after the death of Sardar Mohan Singh, the plaintiffs' father Partap Singh who was the real brother of Mohan Singh performed his last rites. It was further alleged by the plaintiffs that Sardar Mohan Singh after executing the will placed it in the custody of P.W Ammar Singh who handed it over to the plaintiffs in March 1962 after which the plaintiffs got this will registered and then filed the present suit. The plaintiffs further alleged that defendant No. 1 was asked to surrender possession of the properties, but as she refused to do so, it became necessary for them to file the present action.
2. The suit was contested by the defendants on various grounds.
3. In the first place, the defendants characterised the will propounded by the plaintiffs as a forgery. The defendants further took the stand that Mohan Singh had made a will on 2nd May, 1960 in favour of defendant No. 1 Durga Devi by which all the properties were bequeathed to her. It was further alleged by the defendants that although Mohan Singh had betrothed his daughter Prem Kaur to Sat Pal, yet after his death Bakshi Har Dutt and Dwarika Das Soni pressed defendant No. 1 that she should marry Prem Kaur to the son of Dwarika Dass Soni. As defendant No. 1 refused to do so, Bakshi Hardult and Dwarika Dass Soni fabricated the will and have set up the plaintiffs to file the suit. It was further alleged that Mohan Singh in the course of his normal business used to leave his signature on blank papers with his business partners and the will propounded by the plaintiffs appears to have been fabricated on such a blank paper. Defendant No. 1 further denied the allegation that she was a concubine of Sardar Mohan Singh or that Prem Kaur was not his daughter. She categorically asserted that she was married to Sardar Mohan Singh and Prem Kaur had been born out of this wedlock. Defendant No. 1 further claimed that the house in Batote as also the house on Palace Road at Jammu was her self acquired property and the plaintiffs had no right or title to any of them. The defendants also challenged the correctness of the valuation of the properties put by the plaintiffs.
4. On the pleadings of the parties, the following issues were raised in this case:—
1 Is the will dated 2nd March, 1960 in favour of the plaintiffs true, valid and executed by the deceased Mohan Singh?
2 Are the first and second defendants not the widow and daughter respectively of the deceased Mohan Singh?
3 Is the will dated 2nd May, 1960 in favour of the defendants true, valid, and executed by deceased Mohan Singh?
4 What is the correct valuation of the subject-matter of the suit for purposes of court-fee?
5 Whether the residential house at Palace Road Jammu mentioned in the will dated 2nd March 1960 in favour of the plaintiffs belongs to the first defendant?
5. Issues Nos. 4 and 5.
6. Mr. Das, appearing for the defendants did not press issues Nos. 4 and 5 before me. He conceded that the valuation put by the plaintiffs was correct and that the residential house at Palace Road was the property of Sardar Mohan Singh. The learned counsel drew my attention to the fact that although as far back as 2008, Mohan Singh had executed an agreement to sell ½ share in the residential house at the Palace Road Jammu in favour of Durga Devi, but as the contract of sale did not materialise into a sale deed, he would not be justified in putting forward title to this property in view of the concessions, by the learned counsel for the defendants, in respect of which he has also given a statement, I would decide issues Nos. 4 and 5 against the defendants and in favour of the plaintiffs and hold that the valuation put by the plaintiffs is correct and that the residential house at the Palace Road, Jammu was the property of Sardar Mohan Singh.
7. Issue No. 2—
8. I would first take up issue No. 2 before dealing with issues Nos. 1 and 3, because any finding that is arrived at on this issue, will materially affect issues Nos. 1 and 3. On this issue, as indicated above, the plaintiffs definite case is that defendant No. 1 was not a legally wedded wife of Sardar Mohan Singh but was his concubine. On the other hand, defendant's specific case is that she was a legally wedded wife of Sardar Mohan Singh having been married to him about 27 years before the date of the filing of the written-statement (1-12-1962) and that Prem Kaur was born out of this wedlock, and was the daughter of Sardar Mohan Singh. In approaching this issue, we have to remember that the admitted case of both the parties is that Mst Durga Devi had been living with Sardar Mohan Singh as man and wife for more than 25 years. It is also not disputed that Prem Kaur was living with Sardar Mohan Singh and Durga Devi for a pretty long time particularly since her childhood. According to the evidence of the plaintiffs, the age of Prem Kaur was about 24 or 25 years. The only difference between the parties is as to whether Durga Devi was living with Sardar Mohan Singh as his wife or as his concubine. It is well settled that the law always presumes in favour of marriage and against concubinage when once it is shown that a person has been living with a woman as man and wife for a large number of years.
9. I am fortified in my view by a decision of the Privy Council reported in AIR 1929 PC 135, where their Lordships while approving the principles of law enunciated by Judicial Commissioner observed as follows:—
“But their Lordships think it expedient to deal with the reasons which have induced the Judicial Commissioner to differ from the District Judge. He correctly says:—
10. The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years. There is ample authority for this position which will be found cited in a ruling of the Lahore High Court. Indar Singh v. Thakur Singh, AIR 1921 Lah 20.
11. To the same effect is a decision of the Lahore High Court, reported in AIR 1921 Lah 20, which was referred to by the Judicial Commissioner in the case noted above and approved by the Privy Council. Apart from that when once. It is proved that a person was living as husband and wife for a large number of years, a legal presumption of marriage is established. Such a presumption arises from continuous cohabitation between the man and the woman for a large number of years. This principle of law is reiterated by a decision of the Supreme Court reported in AIR 1952 SC 231 where their Lordships of the Supreme Court observed as follows:
“……It is well settled that continuous cohabitation for a number of years may raise the presumption of marriage.”
12. In this connection, I would refer to the evidence produced by the plaintiffs themselves which would go to show that Sardar Mohan Singh and Durga Devi had been living together as man and wife for a period of more than 25 years.
13. P.W 1 Bakshi Mool Raj states that Durga Devi was living with Mohan Singh as a concubine for about 20 years. Similarly P.W 8 Magar Singh says that Durga Devi lived with Mohan Singh for 28 years and whenever he visited them, he saw them living together. Similarly P.W 4 Bakshi Hardutt Singh, on whose testimony the plaintiffs have placed great reliance, has admitted in very clear terms in an answer to a question by the court that Durga Devi had been living with Mohan Singh as man and wife for about 26 years. Th actual words used by the witness are as follows [Omitted.]
14. P.W 7 Ammar Singh has made a clear admission and has stated that Durga Devi had been living with Sardar Mohan Singh as his wife for about 25 years. The words used by him are as follows (Omitted):—
15. In view of this admitted position, there can be no doubt, that there is a legal presumption that Durga Devi was legally wedded to Sardar Mohan Singh. The presumption, however, is a rebuttal one and it may be open to the plaintiffs to rebut this presumption by showing that Durga Devi was not married to Mohan Singh at all. The initial onus therefore, lies on the plaintiffs, who have denied the marriage to prove that Durga Devi was only a concubine and not a legal wife of Sardar Mohan Singh. The plaintiffs have examined some witnesses merely to show that Durga Devi was not known to be married to Mohan Singh amongst his close friends. In other words, the evidence produced by the plaintiffs is more or less of a negative character I would now examine the evidence of the plaintiffs on this point to find out as to whether or not, the plaintiffs have been able to discharge the onus which lay on them to prove that Durga Devi was not married to Sardar Mohan Singh. In this connection, the case made out in the evidence produced by the plaintiffs is that Durga Devi before living with Sardar Moman Singh was carrying on illicit intimacy with one Mehta Lal and it was only after Mehta Lal got rid of her or had been imprisoned in some case that Durga Devi started living with Mohan Singh. Although evidence on this point has been given by the plaintiffs yet this important fact was not mentioned in the plaint at all in the plaint, however, it has been mentioned that Durga Devi was a concubine of Sardar Mohan Singh. The allegation that she was carrying on illicit intimacy with Mehta Lal does not and place in the plaint anywhere. This is an important circumstance to discredit the evidence produced by the plaintiffs on this point. Moreover, even if, it be conceded for the sake of argument that Durga Devi was carrying on illicit intimacy with Mehta Lal with whom she was living before she came into contact with Mohan Singh, this does not by itself disprove the marriage between Durga Devi and Mohan Singh and is not sufficient to rebut the presumption of marriage. The witnesses on the point of marriage produced by the plaintiffs are P.Ws 1, 2, 3, 4, 6, 7, and 10. (His Lordship considered the oral evidence and proceeded:)
16. This is all the evidence that the plaintiff has produced in order to disprove the marriage of Durga Devi with Mohan Singh.
17. It may be noted that the most important person to have denied the factum of marriage of Durga Devi with Mohan Singh would have been Mela Singh, the father of one of the plaintiffs and the real brother of Mohan Singh. Mela Singh has been been examined to deny the factum of marriage and this is an important circumstance which goes to discredit the case of the plaintiffs that Durga Devi was not married to Mohan Singh.
18. On a careful consideration of the evidence, therefore, I am satisfied that the plaintiffs have not been able to dislodge the presumption of marriage which naturally arises in law: once it is established that Mohan Singh was living with Durga Devi as man and wife for more than 25 years.
19. As against this, the defendants have adduced overwhelming evidence, both oral and documentary, in proof of the marriage. This evidence may be divided into three categories:—
(i) Oral evidence of actual marriage and birth of Prem Kaur
(ii) Oral admissions by Mohan Singh to various persons referring to Durga Devi as his wife.
(iii) Documentary evidence containing the admissions of Mohan Singh to show that Durga Devi was the wife of Mohan Singh and Prem Kaur his daughter
20. Oral evidence.
21. 1 might mention that the specific case of defendant No. 1 Durga Devi was that she was married to Mohan Singh in village Gujrat some time in the year 1934 and near about three years after the marriage Mohan Singh executed a document promising in maintain his mother-in-law Nahal Dai and to pay her a maintenance allowance of Rs. 26 per month. This document was executed on 23rd November, 1937.
22. The oral evidence led by the defendants to prove the marriage of Durga Devi with Mohan Singh as also to prove the birth of Prem Kaur out of this wedlock consists of D.W Nos. 4, 6, 9 and 18. (After considering the oral evidence of these witnesses and that of Gurdayal Kohli and Parshotam Das his Lordship proceeded:)
23. On a consideration, therefore, of the oral evidence adduced by the defendants to prove the marriage of Durga Devi with Mohan Singh and further to prove that Prem Kaur was born out of this wedlock, I am satisfied that Durga Devi was the legally wedded wife of Mohan Singh and Prem Kaur their daughter.
24. I might mention here that the oral evidence adduced by the parties is substantially corroborated by Ex. P.W 4.A-1 the Ikrar Namma executed by Mohan Singh as far back as 1937 and the signature of Mohan Singh on this document was admitted even by P.W Bakshi liar Dutt. The counsel for the plaintiffs has not disputed the genuineness of this document. In this document we find a clear admission by Mohan Singh himself that he was actually married to Durga Devi. It is also mentioned in this document that Nahal Dai was a resident of Gujrat hence, in these circumstances, the fact that the marriage look place at Gujrat becomes only natural. The admission of Mohan Singh which must be presumed to be true and has not been shown to be false by the plaintiff, is binding on the plaintiffs because they are basing their title to the properties solely from Mohan Singh and the admission was made a long time before the execution of the will. Moreover, the admission of Mohan Singh at a time when there was absolutely no dispute between the parties and very soon after the marriage is a very strong circumstance to prove that Durga Devi was actually married to Mohan Singh. (His Lordship then considered oral admissions by Mohan Singh to various persons and documentary evidence)
25. This is all the documentary evidence produced by the defendants in support of the plea that Durga Devi was the wife of Mohan Singh and Prem Kaur their daughter. All these documents are in the nature of admissions of Mohan Singh made right from 1937 upto near about the date of his death and no evidence has been produced by the plaintiffs to show that these admissions were incorrect. Moreover, as I have already indicated, all these admissions having been made before the Will in favour of the plaintiffs was executed were binding on the plaintiffs on the question of marriage of Durga Devi and legitimacy of Prem Kaur.
26. I would now deal with certain contentions raised by Mr. Sharma regarding the evidence produced by the defendants.
27. In the first place. Mr. Sharma submitted that whereas in the written-statement defendant No. 1 clearly mentioned that the marriage was performed according to Hindu rites the evidence shows that the marriage was performed according to Sikh rites. It is thus contended that there is a serious inconsistency between the written statement and the evidence. In my opinion, much cannot be made out of this apparent contradiction. In the written statement defendant No. 1 has used the word “Hindu rites” which is a generic term and includes all the sub-sects of Hindus, Sikhs, Jains etc. A Sikh may have slightly a different ideology from a Hindu but he does not cease to be a Hindu in the broad sense of the term. Thus if defendant No. 1 used a generic term in the written statement and proved by way of illustration that the marriage was performed according to Sikh rites, there cannot be said to be any real inconsistency between pleading and proof. It is not disputed before me that the marriage of a Sikh with a Hindu is permissible and is treated to be as good a Hindu marriage as between other sub-sects of Hindus. Learned counsel for the plaintiffs has not been able to show any authority that a marriage of a Hindu with a Sikh is invalid under the Hindu Law. On the other hand, Anand Marriage Act has been passed by the Legislature validating marriage between Hindus and Sikhs or other sub-sects of Hindus. In these circumstances, therefore, the inconsistency complained of by the Advocate for the plaintiffs, appears to be more apparent than real and is not enough to pul the defendant out of court.
28. It was next contended by Mr. Advocate General as also by Mr. Sharma that according to the evidence of the defendants, the marriage had taken place in the month of winter during X-Mas holidays, when generally no Hindu marriage is performed during this lime. No such custom, however, has either been pleaded or proved. Mst. Durga Devi has explained in her evidence that amongst Sikhs there is no restriction in performing marriages in winter. Moreover the restriction if any, is based purely on sentimental or religious grounds and there is nothing to prevent two parties, to depart from this convention when they so choose to do. Thus on this ground, the evidence produced by the defendants cannot be thrown out.
29. It was further contended by the Advocate General that no witness who constituted the Barat Party of Mohan Singh has been examined to prove the marriage and the evidence consists of interested witnesses. This circumstance also is not sufficient to discredit the evidence of the defendants particularly because the defendants were called upon to prove a marriage which took place 30 years ago and it would have been difficult for the defendants to procure the evidence of the persons constituting Barat Party after such a long time and particularly when due to partition the country was divided and number of persons may have died or shifted from one side to another. Moreover, it would appear from the evidence of the plaintiff, as already indicated, that the friends of Mohan Singh did not like his association with Durga Devi and two of them had in fact severed their connections with Mohan Singh on this ground alone in these circumstances, therefore, the mere absence of or non-examination of persons constituting Barat party will not be enough to falsify the case of the defendants. On the other hand, though the witnesses examined by the defendants are, no doubt, interested but being very close relations they would be natural witnesses to be present at the time of marriage and there is no defect in their intrinsic evidence so as to dis-credit their testimony. Furthermore, when the oral evidence produced by the defendants is substantially corroborated by the unimpeachable documentary evidence containing important and categorical admissions of Mohan Singh regarding the marriage of Durga Devi with Mohan Singh, there is no reason why the oral evidence should not be accepted. The contentions raised by Mr. Sharma on this score are therefore, overruled.
30. On a consideration, therefore, of the oral and documentary evidence produced by the defendants, the following propositions of fact emerge:
(1) That Durga Devi was married to Mohan Singh some time in the year 1934.
(2) That Prem Kaur was born out of this wedlock.
(3) That Mohan Singh right from 1937 upto near about the time of his death had been referring to Durga Devi as his wife and Prem Kaur as his daughter in various documents and to various persons.
(4) That Mohan Singh ever since the time of his association with Durga Devi and Prem Kaur had been treating them as his wife and daughter respectively and declaring the same to the world at large.
(5) That Mohan Singh had been living with Durga Devi as man and wife and they were further known in the society as husband and wife for more than 25 years.
31. Having regard to these circumstances, therefore, the irresistible inference which the court is entitled to draw is that the marriage of Durga with Mohan Singh has been fully proved and that it has been also proved that Prem Kaur is the daughter of Mohan Singh. The view which I have taken finds ample support from some of the authorities which, I shall deal hereafter in (1911) ILR 38 Cal 700, their Lordships of the Privy Council in almost similar circumstances observed as follows:
“Their Lordships are of opinion that the view taken by the learned Judges of the High Court is correct.”
32. In the judgment of Pargiter, J., it is clearly and concisely shown that from the time of the alleged marriage Ishri Pershad and Girjabati were recognized by all persons concerned, as man and wife, and so described in important documents and on important occasions. Their daughters were respectably married as would be natural in the case of legitimate children; and these facts following upon a ceremony of marriage which undoubtedly look place, though its validity is attacked, afford an extremely strong presumption in favour of the validity of the marriage and the legitimacy of its offspring. x x x x x To such matters of form and ceremony the established presumption in favour of marriage undoubtedly applied”
33. Similar view has been taken by the following decisions reported in (1894) 21 Ind App 56 (PC), AIR 1929 PC 135, 45 Ind App 73: (AIR 1918 PC 11) and AIR 1952 SC 231.
34. In giving my finding on this issue, I have deliberately excluded the recital made by Mohan Singh in the two disputed wills.
35. For the reasons given above, therefore, I would hold that Durga Devi was the legally wedded wife of Mohan Singh and Prem Kaur their daughter. Issue No. 2 is decided in favour of the defendants and against the plaintiffs.
36. Issue No. 1.
37. The plaintiffs, as indicated above, have relied on a will alleged to have been executed by Mohan Singh on 2-3-1960 and which was handed over to P.W 7 Ammar Singh for safe custody. The will according to the plaintiff was executed in the farm of D.D Soni where the testator and other witnesses assembled. It is also the case of the plaintiffs that top secrecy was maintained in the execution of will by Mohan Singh obviously to avoid Durga Devi. The will is alleged to have been scribed by D.D Soni at the dictation of the testator who had a previous draft of the will with him. The attesting witnesses of the will are Bakshi Har Dutt P.W 4, D.D Soni P.W 5 and P.W 6 Ganshyam Dass. The signature appended to the will has been admitted to be that of Mohan Singh not only by the witnesses for the plaintiffs but also by D.W Nos. 16, 17 and 18. Before, however, taking up the question of genuineness of the will, it would be necessary to make a few observations regarding the legal approach which the court has to make in such cases.
38. It is well settled that onus is on the propounder to satisfy the Court that the will was not only the physical but also the mental act of the testator. This the plaintiff can show by leading evidence to prove the due execution and attestation of the will and sound disposing capacity of the testator. But where, however, the execution of a will is attended by suspicious circumstances, the plaintiff has further to explain these circumstances and to remove the suspicions of the Court in order to satisfy its conscience. It is only when this has been done that the plaintiff would be deemed to have discharged the onus of proving the genuineness of the will. In cases, however, where the suspicious circumstances are incapable of any reasonable explanation, the oral evidence of execution and attestation can hardly be treated as sufficient to dispel the suspicions created in the mind of the Court. The reason why the Court insists on such a strict approach is that unlike other documents, in a will the testator speaks from death and as he is physically incapable of giving evidence, to support or contradict the will every precaution has to be taken to guarantee the sandtily of the will and to ensure that the will is genuine and free from any cloud or suspicions. It is also well established that if a will is registered by the testator, this will be a strong circumstance to support the genuineness of the will, but the same cannot be said of a will which is registered after his death, or without his knowledge. Similarly the mere fact that the signature appearing on the will is a genuine one is not by itself, sufficient to prove the genuineness of the will, where the execution of the will is shrouded by suspicious and unnatural circumstances. At the same time, where the caveator alleges that the will was procured by fraud, undue influence or coercion etc. the onus is on him to prove these allegations. In the instant case, it would appear from the pleadings of the defendants that she has not advanced any plea of fraud or undue influence but has put the plaintiff to the strict proof of the will and has merely indicated the possibility of the will having been fabricated on a blank piece of paper containing the signature of the testator. The principle enunciated by me finds ample support from the decisions cited below: AIR 1959 SC 443, AIR 1962 SC 567, and AIR 1965 SC 354.
39. In AIR 1959 SC 443, it has been observed as follows:
“However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator……………… The Propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind that he understood the nature and effect of the dispositions and put his signature to the document of his own free will… The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged courts would be reluctant to treat the document as the last will of the testator. It is true that if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators, but even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter”
40. It was further pointed out in AIR 1905 SC 354 (Supra) that in case where the will is surrounded by suspicious circumstances, the proper approach should be that the issue about the genuineness of the will cannot be determined by considering the evidence separately from the surrounding circumstances. In this connection, their Lordships observed as follows:
“This issue cannot be determined by considering the evidence adduced in the court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature and contents of the document itself.
......
41. However, there is one important feature which distinguishes wills from other documents. Unlike other documents, the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator, who has already departed from the world cannot say whether it is his will or not, and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of the wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, and the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature;…. the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such “suspicious circumstances naturally tends to make the intial onus very heavy; and unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator.”
42. I would first deal with the suspicious circumstances surrounding the will Ex. PW 4/1 to which my attention has been drawn by the counsel for the defendants. (His Lordship after pointing out the I elaborate and unnatural description of the properties in the will discussed the falsity of some of the recitals in the will. While so discussing, his Lordship observed:) Durga Devi has clearly stated that after the death of Mohan Singh none of the plaintiffs turned up on the scene and she herself performed his last rites. P.W 10 one of the plaintiffs, however, says that the last rights of Mohan Singh were performed by his uncle Partap Singh. Partap Singh is alive and he could have been examined as a witness to contradict the statement of Durga Devi that she had performed the last rites of Mohan Singh. Even in the plaint it was not mentioned by the plaintiffs that they have been living with Mohan Singh and serving him during his life time nor was it mentioned that Partap Singh had performed his last rites. Furthermore, P.W 6 Ganshyam Dass and P.W 7 Ammar Singh stated in their evidence that they had come to Jammu and were present at the time of Kirya Karam of Mohan Singh yet they do not say that it was either the plaintiffs or their uncle Partap Singh who had performed the last rites of Mohan Singh. It is also the case of the plaintiffs that their father and uncle were separate from Mohan Singh and they used to live outside Jammu. In these circumstances, therefore, it is absolutely clearly that the recitals referred to above, were false on a point of fact. Mohan Singh who was fully aware of these facts could never have made such a gross mis-statement in his will.
43. I might further indicate that the fact that the will contains elaborate, artificial, and well considered recitals most of which were untrue on a point of fact, has been regarded by the Supreme Court also as a very suspicious circumstance. In this connection in AIR 1959 SC 443, their Lordships of the Supreme Court has observed as follows:
“It seems to us that the elaborate and well considered recitals which have been deliberately introduced in the preamble cannot possibly be the result of corresponding instructions given by the testatrix to the appellant for preparing the draft of her will. In the context these recitals sound artificial and unnatural and some of them at any rate are untrue. The draftsman of the will has tried to be over-wise and that itself is a very serious infirmity in the appellant's case that the instrument represents the last will and testament of the testatrix.”
IMPORTANT OMISSIONS IN THE WILL.
44. I have already indicated that there is no reference in the will to the insurance policy taken by Mohan Singh in which he had nominated Prem Kaur. (After discussing certain suspicious circumstances, such as the fact that Amar Singh was not asked to attest the will, non-production of the envelope containing the will, late production of the will the judgment proceeded:)
45. Indifference of the plaintiffs to the will and their conduct in allowing defendants to remain in possession of the bequeathed properties.
46. It would appear from the evidence of Ammar Singh P.W that he had told Krishen Singh P.W 10 that he should take possession of the will and should also call his brother. The witness further says that as the brother of Krishen Singh did not come to Jammu at that time, therefore, he waited till 1962 in order to handover the will to the plaintiffs. In fact, if the plaintiffs came to know as far back as 1961 that there was a will executed by their uncle bequeathing almost all his properties in their favour, they would have shown great anxiety to take possession of the will and taken steps thereunder. The plaintiff Kishen Singh would have at once contacted his brother and asked him to come and take possession of the will instead of taking the matter so lightly and waiting for one full year to get together with his brother. The plaintiffs were fully aware that the properties were both moveable and immovable and were in direct control and possession of the defendants and if there was any delay in securing the properties, the defendants may have either misappropriated them or destroyed a part of the properties. Despite these facts, the plaintiffs appear to have shown complete indifference to the bequest made in their favour and rose from their slumber after full one year to take possession of the will from Ammar Singh.
47. This circumstance taken along with the late production of the will, in my opinion, are so suspicious as to militate against the genuineness of the will. In this connection, I would refer to AIR 1965 SC 354, where under similar circumstances, their Lordships of the Supreme Court observed as follows:
“Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ram Dhan's death, which would have been the case if it were a genuine will. On the other hand, there is one circumstance which suggests that the claim on the basis of Ramdhan's will was not even thought of by the appellant till long after Ramdhan's death. The circumstance is the continuance of Sitabai in possession of the cash, gold and silver articles and other movables, even subsequent to Ram Dhan's death. Of course, the appellant has given the explanation that he allowed her to remain in possession on his behalf but his evidence is wholly incredible. Indeed, the appellant has said that he instituted the suit because he found Sita Bai parting with portions of Ramdhan's movables in favour of her daughters and strangers after the death of Ram Dhan. At least one thing will follow from this that according to him Sitabai was more interested in her daughters than in him. If, therefore, he had a genuine claim to Ram Dhan's property, he would not have allowed Sitabai to remain in possession of Ram Dhan's movables. At least he would have obtained from her a document containing the list and description of the movables and also an admission to the effect that she was entrusted with them by the appellant and that she had no right in them. Had she refused to execute such a document, one would have naturally expected the appellant to institute a suit for their possession immediately. There is no explanation for the absence of such a document and thus this is also a circumstance which militates against the genuineness of the will.”
48. I have already indicated above, that no explanation has been given by the plaintiffs either for the late production of the will, or for their indifference to the bequest made in their favour and the delay on their part to take possession of the will from P.W Ammar Singh.
49. The fact as alleged by the defendants, that the will was fabricated on a blank piece of paper containing the signature of Mohan Singh.
50. A clear allegation to this effect was made by the defendants in their written statement in the additional pleas taken by them in, their written statement. No evidence was led by the plaintiffs to deny the fact that Mohan Singh was in the habit of giving blank papers containing his signature to his business partners in the course of his business. D.W Mool Raj who has appeared as a witness for the defendants and who was an employee of Mohan Singh has deposed to this effect. The manner in which the signature of the testator and that of the attesting witnesses have been mugged in the bottom of the will intrinsically supports the allegation of the defendants that the will has been manufactured on a blank piece of paper containing the signature of Mohan Singh. A bare perusal of the will would show that while in the first page at some places sufficient space has been left out and similarly on the next page of the will, yet towards the end as Mohan Singh's signature appeared to be at the bottom of the page, the signature of the attesting witnesses have been taken above the signature of Mohan Singh, or on the right side of it.
51. The draftsman of the will must have realized that all the recitals of the will including the signature of Mohan Singh had to be filled up only in one sheet of blank paper which was given to him. As the recital took a good deal of space and he was likely to run short of space, the only alternative was to put all the signatures of the persons concerned near about the bottom and the signature of the scribe has been taken right towards the margin. These two circumstances taken together also throw a considerable doubt on the genuineness of the will. Mr. Sharma, however, submitted that it would be seen that the ink in which the will has been written and the ink in which the signature of Mohan Singh has been taken, appears to be the same and this is an intrinsic proof of the genuineness of the will. I am, however, unable to agree with this contention. No expert evidence has been adduced before me to show that after a chemical analysis of the two writings, it can be said that both of them are in the same ink. On the other hand. I find that a portion of the signature of Mohan Singh is in an ink darker than the ink in which the rest of the will has been written.
52. The argument of Mr. Sharma, is not, therefore, tenable. In AIR 1962 SC 567 the fact that no adequate provision was made for the widow and none for the daughter taken along with the fact that the testator used to sign blank papers was taken to be a very suspicious circumstance which would go to militate against the genuineness of the will. In this connection their Lordships observed as follows:
“No amount is specified which should be given to these two ladies as maintenance and no charge is created on the properties left by the testator which were considerable. In effect, the two ladies were left to the tender mercies of the respondent in the matter of their maintenance. Further the result of this will is that the daughter would be completely disinherited.
In any case there is no satisfactory evidence to show that relations between the testator and his daughter were bad.
There is no doubt therefore that the will is most unnatural and that is a suspicious circumstance which must be satisfactorily explained before the respondent can get letters of administration.
Another suspicious circumstance is that the signature of the testator does not appear to be his usual signature. That is why a lot of questions were put to the witnesses whether the testator signed the will with his left or right hand and evidence was also given that the right hand of the testator had been injured some time before.”
“Another suspicious circumstance is that it has been proved in this case that the testator used to sign blank papers for use in his cases in court and used to send them to his lawyer through his servants and these papers could be in possession of Rameswar Sharma, the lawyer of the testator, who has appeared as a witness to prove the will and who was according to his evidence consulted by the testator in this matter. Such papers could also be found in the possession of the testator's Mukhatars. Therefore it was possible to manufacture a will on papers already signed by the testator and that is certainly a suspicious circumstance which had to be overcome in this case.”
53. (After further considering the suspicious circumstances, his Lordship proceeded:) There is one important fact that which also throws a considerable doubt on the credibility of the witnesses who have been examined by the plaintiffs to prove the will. Assuming that Mst. Durga Devi was not the wife of Mohan Singh and she was being completely ignored, it is manifest that the legal heirs of Mohan Singh would be his own brothers and not the plaintiffs. If Mohan Singh intended even to exclude his brothers by giving the entire benefit under the will to their sons, it is most unlikely that he would not have asked his own brothers to be present at the time of the execution of the will and attest the same. The fact that the brothers as also the plaintiffs were kept completely in the dark by Mohan Singh regarding the bequest which he made in favour of the plaintiffs, is to my mind a strong intrinsic proof of the fact that will was not genuine. There is no reason whatsoever why Mohan Singh did not think it proper to ask his own brothers to be present at the time of the execution of the will, since under the will their sons were to get the main benefit. For these reasons, therefore, since the plaintiffs have not been able to give satisfactory explanation regarding the suspicious circumstances attending the execution of the will, to which I have already adverted, and the oral evidence adduced by the plaintiffs is not satisfactory either, I am constrained to hold that the will propounded by the plaintiffs is not genuine. In other words having regard to the suspicious circumstances surrounding the execution of the will, namely, the untrue and elaborate recitals of the will, the important omissions of facts positively within the knowledge of the testator though not known to the craftsman of the will, the inadequate provision for the wife of the testator, the absence of any provision for the daughter, the absence of any cogent reason for the testator to choose the plaintiffs in preference to his wife and daughter who had all along been living with him and serving him up to the time of his death and with whom his relations had always been cordial, the indifferent attitude of the plaintiffs even after knowing about the existence of the will, the unexplained dramatic and late production of the will full two years after it was executed, and the discrepant evidence about the execution and attestation of the will, the irresistible conclusion that has to be drawn is that the will Ex. P.W 4/1 is not genuine and cannot be regarded as representing the last will and testament of the testator. For the reasons given above. Issue No. 1 is therefore decided against the plaintiffs and in favour of the defendants. I might further indicate that the facts of the present case particularly the suspicious circumstances appearing in the case seem to be on all fours with the case reported in AIR 1965 SC 354, where the will was not held to be a genuine one almost on identical grounds. 1 might mention here that this finding alone is sufficient to entail the dismissal of the suit because the plaintiffs have filed this suit for possession on the basis of the will and if this will is held to be not genuine, they must fail, irrespective of the fact that Durga Devi has a valid title to the properties. It is well settled that possession by itself is good title against every body except the true owner. Since the plaintiffs have failed to prove the genuineness of the will, and therefore, their title to the property, they cannot succeed even if the defendants do not possess good title to the property. Furthermore, in view of my finding that Durga Devi is the legally wedded wife of Mohan Singh, she would be legally entitled to inherit the property under the Hindu Succession Act in preference to the plaintiffs or their father.
54. Issue No. 3.
55. The defendants have relied upon a will alleged to have been executed by Mohan Singh on 2nd May, 1960. Even if this will would not have been executed, by Mohan Singh in view of my finding on issues Nos. 1 and 2, she would be entitled to the properties under the Hindu Succession Act. Nevertheless the case of the defendants is that just a few days before the death of Mohan Singh, he executed the will Ex. D.W 7.A. Before coming to the evidence regarding the actual execution and attestation of the will, I would refer to certain suspicious circumstances pointed out by the learned counsel for the plaintiffs. (After referring to such circumstances and adverting to evidence produced by the defendants his Lordship concluded:) Having regard, therefore, to the unsatisfactory evidence produced by the defendants regarding the execution of the will and the suspicious circumstances attending it, I am not satisfied that the will Ex. D.W 7.A is a genuine document.
56. Issue No. 3 is, therefore, decided against the defendants and in favour of the plaintiffs.
57. In view of my findings on issues Nos. 1 and 2, it is manifest that the plaintiffs are not entitled to any decree. The result is that the plaintiffs' suit is, therefore, dismissed with costs. The amounts deposited by the defendants under orders of this Court may now be refunded to them.
KJ/V.S.B/D.V.C
58. Suit dismissed.