R.S.A.NO. 2075 OF 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
R.S.A.NO. 2075 OF 2007
Date of decision:24th October, 2009
Sadhu Singh
......Appellant
Versus
Dalip Singh and others
......Respondents
Before: HON'BLE MR. JUSTICE RAJIVE BHALLA
Present: Mr. Raj Kakkar, Advocate
for the appellant.
Mr. C.M.Munjal, Advocate
for the respondents.
Rajive Bhalla, J(Oral)
The appellant challenges judgments and decrees dated
8.03.1979 and 21.02.2007, passed by the Sub Judge, Ist Class, Zira
and the Aditional District Judge, Ferozepur, dismissing the suit and the
appeal, respectively.
Smt. Lachhmi, since deceased filed a suit for declaration
that she is owner in possession of the suit property on the basis of a
will dated 22.11.1975, executed by Teja Singh deceased, bequeathing
the suit land to her. Smt. Lachhmi alleged that the testator Teja Singh
was a close relative. As he did not have any real brother or sister, he
requested her to reside in her house. She accepted his request and
along with her husband and children began residing with Teja Singh.
R.S.A.NO. 2075 OF 2007 -2-
Teja Singh executed the will in her favour, in acknowledgment of her
services but passed away soon thereafter, issueless and unmarried.
In response to the averments in the plaint, the
respondents filed a written statement alleging that the will is a forged
and a fabricated document as it is surrounded by a large number of
suspicious circumstances. The respondents denied that Smt. Lachhmi
resided in the house of Teja Singh and in turn pleaded that Teja Singh
had made an oral gift in their favour but if not established, they are
owners in possession having perfected their title by adverse
possession.
After considering the pleadings, the evidence adduced and
the arguments addressed, the Sub Judge First Class Zira, vide
judgment and decree dated 8.03.1979, dismissed the suit by holding
that Smt. Lachhmi had failed to prove the execution of the will or
dispel suspicious circumstances surrounded its execution.
Aggrieved by the aforementioned judgment and decree, Smt. Lachhmi
filed an appeal. Vide judgment and decree dated 21.02.2007, the
Aditional District Judge, Ferozepur, dismissed the appeal and affirmed
the findings recorded by the trial court.
Counsel for the appellant submits that the will dated
22.11.1975, has been proved by examining Ajit Singh and Sohan
Singh, the attesting witnesses and Shangara Singh the scribe. The
attesting witnesses and the scribe have deposed that Teja Singh,
executed the will in the presence of the attesting witnesses who,
thereafter, appended their thumb impressions in the presence of Teja
Singh. The alleged suspicious circumstances referred to by the courts
below are neither suspicious nor sufficient to discard a duly executed
will. A reference that the thumb impressions are in different ink, is
entirely irrelevant. The mere fact that there are minor contradictions
R.S.A.NO. 2075 OF 2007 -3-
in the depositions of the attesting witnesses and the scribe, as to their
arrival at Teja Singh’s house are irrelevant. It is further argued that
the mere fact that the testator passed away two days after the
execution of the will, cannot by itself be sufficient to hold that the will
is forged and fabricated. It is argued that in view of the errors
committed by the courts below, the following substantial questions of
law arise for consideration:-
1. Whether execution of the will by executant 2
days prior to death can be a suspicious circumstance
in the execution of the will as death is always
uncertain?
2. Whether the person who is claiming the relief
on the basis of the oral gift from the original owner
can claim ownership over the land by way of adverse
possession?
3. Whether the person who claims to have been
owner of the property on the basis of the adverse
possession can claim the plea of oral gift by the
owner?
4. Whether the beneficiary of the will is require to
prove sound disposition of the mind of the executant
of the will at the time of the execution of the will by
way of medical evidence?
5. Whether in appeal under Section 96 CPC, the
first appellate court should give findings on all the
issues or whether the first appellate court can left
certain issues undecided?
Counsel for the respondents, on the other hand, submits
that the suspicious circumstances, pointed out by the courts below,
R.S.A.NO. 2075 OF 2007 -4-
cast a doubt upon the execution of the will. As the appellant has failed
to discharge the onus of proving the execution of the will and
dispelling suspicious circumstances, the courts below have rightly
recorded a concurrent opinion that the will has not been proved. It is
further argued that a bare perusal of the will, establishes that words
“this is my last will” were added later, the thumb impressions were
obtained on a blank paper or after the testator had died. It is for this
reason that the attesting witnesses are discrepant in their depositions
with respect to material particulars.
I have heard counsel for the parties, perused the impugned
judgments and decrees and express my inability to hold that the
findings of fact recorded by the courts below suffer from any error,
much less such an error as would raise a substantial question of law.
Teja Singh deceased died unmarried and issue less. The
dispute in the present case relates to his will dated 22.11.1975,
whereby, he bequeathed his entire estate to Smt. Lachhmi. The will is
attested by Ajit Singh and Sohan Singh and scribed by Shangara
Singh. Admittedly, Teja Singh passed away on 24.11.1975, two days
after the execution of the will. The will is unregistered and has been
scribed by Shangara Singh who is not a regular deed writer. The
thumb impressions of the testator and the witnesses are in different
ink. The words “this is my last will” appear to have been interpolated
later between the thumb impression and the body of the will. The
attesting witnesses and the scribe made contradictory statements with
respect to their arrival at the house of Teja Singh and as to who called
them for the execution of the will and other material facts. It would
also require mention, that Ajit Singh is a mere passer by, whereas
Shangara Singh claims to be ploughing the land of Ajit Singh when he
was called to write the will. These witnesses have admitted that the
R.S.A.NO. 2075 OF 2007 -5-
family members of Smt. Lachhmi were present during the alleged
execution of the will. It is true that though death comes unnatural and
the fact that the testator died two days after the execution of the will
may not by itself be sufficient to discard a will but when considered
with the circumstances enumerated above assumes greater
significance.
The questions of law, as referred to hereinabove, are mere
issues in fact and do not raise any substantial question of law. The fact
that the respondents have pleaded an oral gift or adverse possession
are irrelevant in so far as it concerns the proof of the will as it was for
the appellant to prove the execution of the will. Even otherwise, the
courts below have rejected these pleas. It is true that the propounder
of a will may not be required in every case, to produce medical
evidence to prove that the testator was of sound disposing mind, but
he must prove, by satisfactory evidence that at the time of the
execution of the will the testator was of sound disposing mind.
Counsel for the appellant has failed to point out any error or
perversity in the process of reasoning or in the conclusions recorded
by the courts below, as would require interference.
In view of what has been stated hereinabove, as no
substantial question of law arises for consideration, the appeal is
dismissed with no order as to costs.
[RAJIVE BHALLA]
JUDGE
24th October, 2009
Shivani Kaushik