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Karamjit Kaur v. Sukhjinder Kaur
Case Summary — Second Appeal by Defendants No. 5 & 6 (V.K Jhanji, J.)
Factual and Procedural Background
The appeal arises from a dispute over the estate of Mohinder Singh. Mohinder Singh had five daughters by his first wife Harbhajan Kaur (who died in 1968). In January 1986 he married Karamjit Kaur (defendant No. 6) and from that marriage a daughter, Amandeep Kaur (defendant No. 5), was born.
The plaintiff (one of Mohinder Singh's daughters) sued the defendants (including daughters from the first marriage — defendants No. 2, 3 and 4 — and defendants No. 5 and 6) claiming that Mohinder Singh died on 21.7.1988 leaving the plaintiff and the defendants as legal heirs, and seeking joint possession of a 1/7th share in land measuring 89 Bighas 9 Biswas in village Panjola, Tehsil and District Patiala. The trial Court dismissed the suit.
Defendants No. 5 and 6 (the appellants in this second appeal) contended that Mohinder Singh executed a Will dated 3.7.1988 in their favour and also relied on a compromise dated 29.8.1988 as vesting a larger share in them. On appeal to the Additional District Judge (first Appellate Court), the trial Court's judgment was set aside and the plaintiff's suit for joint possession to the extent of 1/7th share was decreed. Defendants No. 5 and 6 filed this second appeal challenging the first Appellate Court's findings.
Legal Issues Presented
- Whether Mohinder Singh executed a valid Will dated 3.7.1988 in favour of Amandeep Kaur and Karamjit Kaur.
- If the Will is not proved, whether the suit land fell to the share of Amandeep Kaur and Karamjit Kaur by virtue of the compromise dated 29.8.1988.
- Whether the plaintiff is entitled to a 1/7th share in the suit property.
Arguments of the Parties
Appellants (Defendants No. 5 & 6)
- The Will dated 3.7.1988 was validly executed and proved by the scribe and one of the attesting witnesses.
- The Will was not surrounded by suspicious circumstances and therefore should be accepted as genuine.
- Alternatively, if the Will were held invalid, the compromise dated 29.8.1988 vested the larger share of the estate in defendants No. 5 and 6 (they asserted the plaintiff and defendants No. 1–4 agreed to take 30 Bighas out of 90 Bighas, leaving 60 Bighas to defendants No. 5 & 6).
Respondents (Plaintiff and Defendants No. 1–4)
- The first Appellate Court correctly disbelieved the Will because its execution was shrouded in suspicious circumstances.
- Defendants No. 5 & 6 failed to explain and remove suspicious circumstances to the satisfaction of the Court, so the purported Will cannot be accepted as genuine.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 | Where execution of a Will is surrounded by suspicious circumstances, the initial onus of proof on the propounder becomes very heavy; courts are reluctant to treat the document as a last Will unless the heavy onus is satisfactorily discharged. | The court invoked this principle to treat the presence of suspicious circumstances as increasing the burden on defendants No. 5 & 6 to prove the Will; finding those circumstances unexplained, the court supported the first Appellate Court's doubt about the Will's genuineness. |
| Smt. Jaswant Kaur v. Smt. Amrit Kaur, (1977) 1 SCC 369 : AIR 1977 SC 74 | When a Will's execution is shrouded in suspicion, the court must satisfy its conscience; the propounder must eliminate suspicious circumstances by placing satisfactory material on record. | The court applied this rule to require defendants No. 5 & 6 to remove reasonable doubts as to execution and testator's mental capacity. The court found that the propounders failed to meet that evidentiary duty, justifying disbelief of the Will. |
Court's Reasoning and Analysis
The Court began by stating the statutory attestation requirement for Wills under Section 63 of the Indian Succession Act, 1955 (a Will must be attested by at least two witnesses and at least one witness must be called to prove execution). The Court emphasized that when execution is surrounded by suspicious circumstances, the propounder's mere assertion of signature or testamentary capacity is insufficient; the propounder must remove all legitimate suspicions.
The Court relied on established authorities (cited above) to describe the heightened onus on the propounder where suspicious circumstances appear. Applying these principles to the facts before it, the Court examined the evidence led by defendants No. 5 & 6 to prove the Will and the compromise.
As to the Will dated 3.7.1988:
- The Will was attested by Gurdev Singh and Gurpartap Singh and scribed by Birinder Singh; defendants examined witnesses Gurdev Singh and Birinder Singh (DWs-3 & 4) and a handwriting expert DW-5 (Gopal Krishan Sharma).
- The plaintiff's handwriting expert Dewan K.S. Puri opined that the disputed signature was not of the person who wrote the specimen signatures. The court found Dewan K.S. Puri to be well-known for ability and integrity and accepted his opinion.
- The handwriting expert for the propounders (DW-5) had qualifications and experience that the first Appellate Court found inadequate; his opinion was rejected by the first Appellate Court and the present Court upheld that approach.
- The Will was not produced contemporaneously: defendants' written statement (filed 25.2.1989) asserted a Will existed but did not disclose its date or produce a copy; the Will was produced in Court only in February 1990 and was not produced in mutation proceedings (mutation had been ordered on natural succession). No explanation was given for non-production earlier.
- There were contradictory and discrepant statements by attesting witnesses about surrounding facts: where the Will was scribed (Panajola vs Shampur), the circumstances for execution (pain in chest vs advice to secure future), to whom the Will was handed (Sarpanch vs Lambardar), and whether the testator was a heart patient. These contradictions and discrepancies were treated as suspicious circumstances.
As to the compromise dated 29.8.1988 (Exh. D-1):
- The evidence for the compromise was also inconsistent: witnesses gave varying accounts of where it was scribed and signed, who purchased stamp papers, and who attested. Some witnesses who were said to be present did not sign the document; one witness (Gurpartap Singh) who was relevant was not examined.
- All attesting witnesses to the compromise did not belong to Village Panjola (where the deceased resided), and the document failed to mention the Will though the compromise allegedly arose because of dispute over the Will.
- The Court observed that the compromise purported to create or declare a right to immovable property of more than Rs. 100 in value; under Section 17(1)(b) of the Registration Act such a document operating to create a right in immovable property requires registration. Because the compromise purported to create such a right and was not registered, it could not be read as a document of title.
Holding and Implications
Holding: The second appeal by defendants No. 5 and 6 was dismissed. The court expressly recorded that, "Consequently, for the reasons recorded above, this appeal fails and shall stand dismissed with no order as to costs." The opinion concludes with the brief decree: Appeal dismissed.
Direct effect on the parties: The first Appellate Court's judgment and decree in favour of the plaintiff (decreeing joint possession to the extent of a 1/7th share) is maintained; defendants No. 5 and 6's challenge was unsuccessful.
No broader legal precedent was claimed to be established by the Court in this opinion; the decision applies existing principles (as cited) to the facts and evidence of the case.
V.K Jhanji, J.:— This second appeal preferred by defendants No. 5 and 6 is directed against the judgment and decree of the first Appellate Court whereby on two appeals preferred i.e one by the plaintiff and the other by defendants No. 1 to 4, judgment and decree of the trial Court has been set aside and suit of the plaintiff for joint possession to the extent of 1/7th share in land measuring 89 Bighas 9 Biswas situated within the revenue estate of village Panjola Tehsil and District Patiala, has been decreed. Trial Court had dismissed the suit.
2. The dispute relates to the estate of Mohinder Singh son of Sher Singh. Mohinder Singh had 5 daughters from his wife Harbhajan Kaur. Harbhajan Kaur died in 1968. He married Karamjit Kaur (defendant No. 6) in January, 1986 and from this wedlock, daughter Amandeep Kaur (defendant No. 5) was born. Plaintiff filed suit against defendants, namely, daughter of Mohinder Singh i.e defendants No. 2, 3 and 4 from first marriage with Harbhajan Kaur and defendants No. 5 and 6 i.e daughter of Mohinder Singh from second marriage with Karamjit Kaur and against Karamjit Kaur (defendant No. 6), second wife of Mohinder Singh, respectively. She contended that Mohinder Singh died on 21.7.1988 leaving behind plaintiff and defendants as his legal heirs and thus she is owner of 1/7th share out of the suit land. Hence suit for joint possession.
3. Defendants No. 2 to 4, namely, sisters of plaintiff, filed joint written statement admitting the claim of the plaintiff and also asserted that they are also entitled to 1/7th share each in the suit property and defendant No. 1 did not appear and was proceeded against ex parte.
4. Upon service, defendants No. 5 and 6 filed joint written statement contesting the claim of the plaintiff. They contended that Mohinder Singh had executed a valid Will in their favour and, therefore, the plaintiff and defendants No. 1 to 4 are not entitled to any share in the property of Mohinder Singh. They also contended that because of the compromise dated 29.8.1988, suit land has fallen to their share.
5. On the pleadings of the parties, the trial Court framed the following issues:—
1. Whether Mohinder Singh deceased executed a valid Will dated 3.7.1988 in favour of Miss Amandeep Kaur and Smt. Karamjit Kaur as alleged? OPD
2. If issue No. 1 is not proved, whether the suit land fall to share of Miss Amandeep Kaur and Smt. Karamjit Kaur through compromise dated 29.8.1988? OPD
3. Whether plaintiff is entitled to 1/7 share as alleged? OPD
4. Relief.
6. Trial Court recorded finding on Issues No. 1, 2 and 3 in favour of defendants No. 5 and 6 and against the plaintiff. In view of the finding on Issues No. 1 to 3, suit of the plaintiff was dismissed with costs. On two appeals preferred i.e one by the plaintiff and the other by defendants No. 1 to 4, learned Additional District Judge, Patiala, reversed the finding of the trial Court on all the issues and has set aside the judgment and decree of the trial Court and resultantly decreed the suit of the plaintiff for joint possession to the extent of 1/7th share out of land measuring 89 Bighas 9 Biswas. Hence this second appeal by defendants No. 5 and 6.
7. Learned Counsel appearing on behalf of defendants No. 5 and 6 has contended that the finding of the first Appellate Court in regard to Will dated 3.7.1988 is conjectural and illegal and not sustainable in law. According to the counsel, Will dated 3.7.1988 stands duly proved by the statement of the scribe and one of the attesting witnesses. It is contended that the Will is not surrounded by suspicious circumstances as has been held by the first Appellate Court.
8. In answer to these submissions, learned Counsel appearing on behalf of the plaintiff and defendants No. 1 to 4 have contended that the first Appellate Court has not committed any error in disbelieving the Will because execution of the Will is shrouded by suspicious circumstances. It is contended that defendants No. 5 and 6 have failed to explain the suspicious circumstances to the satisfaction of the Court and, therefore, Will set up by the defendants cannot be accepted as genuine.
9. I have heard the learned Counsel for the parties and perused the records. It is well settled that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act, 1955. Section 63 of ibid Act requires a Will to be attested by at least two witnesses. It cannot be used as evidence unless at least one witness has been called for the purpose of proving its execution. However, where the execution of the Will is surrounded by suspicious circumstances, the suspicion cannot be removed by mere assertion of the propounder of the Will that the Will bears the signatures of the testator or that the testator was in sound and disposing state of mind when the Will was made. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attended upon the execution of Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
10. In H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443, it has been held that the presence of suspicious circumstances tends to make the initial onus to prove the Will very heavy and unless such onus is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. Besides suspicious circumstances, the Wills propounded may also disclose other infirmities which if proved may render the documents inadmissible in evidence.
11. In Smt Jaswant Kaur v. Smt. Amrit Kaur, (1977) 1 SCC 369 : AIR 1977 SC 74, it has been held that in a case where the execution of the Will is shrouded in suspicion, its proof ceases to be a simple lis between the parties and in such a case it becomes the duty of the Court to satisfy itself as to whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. The party propounding the Will has to eliminate the existence of suspicious circumstances. If any genuine, reasonable or bona fide doubt is created regarding the execution of the Will or the mental faculty of the testator a duty is cast upon the propounder and the beneficiary of the Will to remove the suspicious circumstances by placing satisfactory material on record.
12. Will dated 3.7.1998 is alleged to have been attested by Gurdev Singh son of Balwant Singh and Gurpartap Singh son of Jaspal Singh and scribed by Birinder Singh son of Jaspal Singh. For proving its execution and attestation, defendants No. 5 and 6 examined Gurdev Singh and Birinder Singh, DWs-3 and 4 respectively. In order to prove that it bears signature of Mohinder Singh deceased, defendants No. 5 and 6 examined DW-5 Gopal Krishan Sharma, handwriting expert, who gave opinion that the specimen signature and the disputed signature of the deceased on the Will are of one person. His opinion has been rejected by the first Appellate Court because his qualification and experience were found to be not such as handwriting expert. DW-5 in the course of his cross-examination, admitted that he was working as a Clerk with Shri Sat Pal Sehgal, Advocate from 1957 to 1967 and thereafter he was working with Shri Sehgal in his office. He also admitted that before giving his report, he did not read the report of Dewan K.S Puri, handwriting expert examined by the plaintiff. On the other hand, Dewan K.S Puri after considering the writing characteristics of the disputed and specimen signature, in his report, Exh. DW/4A opined that the disputed signature on the Will is not in the-handwriting of the person who has written specimen signature marked S-1 to S-5. Dewan K.S Puri, handwriting expert examined in this case is well known both for his ability and integrity and in my view, opinion given by him has rightly been taken into consideration by the first Appellate Court.
13. In para 2 of the written statement dated 25.2.1989 filed in Court on 27.2.1989, defendants No. 5 and 6 stated that they are the only heirs in respect of property of Mohinder Singh in view of the Will left by him. Defendants No. 5 and 6 neither disclosed the date of the Will nor the Will or its copy was produced in Court along with the written statement. The Will was produced in Court only in February, 1990. In the course of mutation proceedings as well, the Will was not produced and mutation was ordered to be entered on the basis of natural succession. There is no explanation by defendants No. 5 and 6 as to why the Will was not produced before the Revenue Authorities and why the date of Will was not mentioned in the written statement.
14. The Will is alleged to have been executed on 3.7.1988 and Mohinder Singh, testator expired on 21.7.1988 The Will has not been scribed in Village Panjola where Mohinder Singh used to reside but is alleged to have been executed in Village Shampur where the testator had gone to attend the Bhog ceremony. Defendants No. 5 and 6 have tried to explain that occasion for execution of Will arose all of a sudden at Village Shampur because at the Bhog ceremony, Mohinder Singh felt pain in his chest and so he decided to execute the Will. Gurdev Singh, one of the attesting witnesses of the Will, when examined as DW-3, in his cross-examination nowhere stated that the deceased executed the Will because he felt pain in the chest. In fact, Gurdev Singh in his cross-examination stated that the deceased executed Will on their advice only to secure the future of his wife and daughter. DW-4 Birinder Singh alleged scribe of the Will also did not state that the testator decided to execute the Will at Village Shampur because he felt pain in the chest. He, in fact, stated that the deceased was not taken to the doctor but was left at Village Panjola on the same very day. In the Will, it is not mentioned that the testator had gone to Village Shampur on bhog ceremony of brother's wife of Gurdev Singh. It is rather mentioned that the deceased had gone to Village Shampur on account of some personal work. Statements of DW-3 Gurdev Singh and DW-4 Birinder Singh are contradictory and discrepant. DW-3 stated that after the execution of the Will, the same was handed over to Sarpanch of village Panjola whereas DW-4 Birinder Singh stated that the Will was handed over to the Lambardar. DW-3 denied the suggestion that Mohinder Singh was heart patient. He also stated that it was not got mentioned in the Will that he was a heart patient and had got fitted a pace maker. In the Will, it is, however, mentioned that the Will is being executed because the testator felt pain in the chest and apprehended that he could die at any time. Having regard to the presence of the suspicious circumstances as pointed out above, I am of the view that the first Appellate Court is justified in doubting the genuineness of the Will.
15. Mr. R.S Mital, Senior Advocate, counsel for the appellants next contended that if the Will is held to be invalid, then also the plaintiff is not entitled to 1/7th share in the property because vide compromise dated 29.8.1988, the plaintiff and defendants No. 1 to 4 had agreed to take 30 Bighas of land out of 90 Bighas left by Mohinder Singh and the rest of the land i.e 60 Bighas was to be inherited by defendants No. 5 and 6. It is contented that the finding of the first Appellate Court that the compromise, Ex. D-1 is a suspicious document, is not correct. I find no merit in this contention.
16. In order to prove compromise, Exh. D-1, defendants No. 5 and 6 examined DW-2 Hardev Singh son of Balwant Singh, DW-3 Gurdev Singh and DW-4 Birinder Singh son of Jaspal Singh. DW-2 Hardev Singh stated that the compromise was written at village Panjola but compromise, Exh. D-1 shows that it was allegedly written at Village Shampur. He also showed his ignorance as to who had purchased the stamp papers on which compromise was typed. He stated that Pritam Singh Sarpanch was present but compromise does not bear signature of Pritam Singh Sarpanch. DW-3 Gurdev Singh is brother of DW-2 Hardev Singh and also happened to be one of the attesting witnesses of the Will. DW-3 though stated that the compromise was got effected in his presence but stated that it does not bear his signature. In his cross-examination, he stated that the compromise was scribed at Village Panjola and the same was got typed after securing the signatures meaning thereby that the signatures were obtained first and thereafter the same was got typed. DW-4 Birinder Singh stated that the compromise was scribed at Patiala and was effected at Village Panjola. He also stated that the draft as well as the original compromise deed were handed over to Gurpartap Singh who is his brother and is living at Village Shampur. Gurpatap Singh not only happened to be the attesting witness to the Will but also a witness to the compromise. He, however, was not examined.
17. Strangely, DW-4 Birinder Singh, scribe of the Will and Gurpartap Singh, one of the attesting witnesses of the Will, are also the attesting witnesses of the compromise and all the 4 attesting witnesses to the compromise do not belong to Village Panjola where the deceased used to reside. It has also not been explained as to why Sarpanch of Village Panjola was not asked to attest the compromise when according to DW-3 Gurdev Singh, the Will as well as the compromise were handed over to Sarpanch of Village Panjola. The compromise, Exh. D-1 also makes no mention of Will dated 3.7.1988 though it is contended that the compromise was arrived at between the parties because dispute arose because of the Will. In my view, the first Appellate Court on proper analysis of the statements of the attesting witnesses, has rightly discarded the compromise. Furthermore, a compromise is settlement of disputed claim and applies to claims and demands of all sorts. If the compromise deed itself declares a right to immovable property of more than Rs. 100/- in value, it operates as a contract and requires registration as provided under Section 17(1)(b) of the Registration Act. It is not in dispute that the compromise, Exh. D-1 purports to create a right in favour of defendants No. 5 and 6 to the property of more than Rs. 100/- and as a result of the compromise, Exh. D-1 the property which now stands equally in the names of seven persons, shall stand in different shares. Since a right has been created in favour of defendants No. 5 and 6 by the document itself, it required compulsory registration and in absence thereof it cannot be read into evidence and set up as a document of title.
18. Consequently, for the reasons recorded above, this appeal fails and shall stand dismissed with no order as to costs.
Appeal dismissed.
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