JUDGMENT
N.K. Kapoor, J.
1. This judgment shall dispose of regular second appeals bearing No. 2103 and 2104 of 1990 which are directed against the same judgment and decree of the Additional District Judge dated 2.8.1990.
2. Smt. Raj Kaur & Ors.-plaintiffs filed a suit for declaration to the effect that they are owners in possession of land as per details given in the head note of the plaint and the mutation sanctioned in favour of defendants 1 to 3 in null and void and does not affect the rights of the plaintiffs. According to the case set up by the plaintiffs one Harcharan Singh @ Mohan Singh, son of Mangal Singh resident of Village Alampur Mandra was owner in possession of the suit land. He married Smt. Mohinder Kaur-defendant No. 1 and was blessed with two sons named Madusudan Singh and Sahib Singh. Harsharan Singh was not having good relations with Smt. Mohinder Kaur and so contracted a second marriage with plaintiff-Raj Kaur, who gave birth to two daughters, namely, Kiranjit Kaur and Nikki-plaintiffs 2 and 3 respectively. Harsharan Singh was murdered on 24.3.1984 by brothers of Mohinder Kaur-defendant and were convicted and sentenced by Special Court under Section 302, IPC. According to the plaintiffs the deceased executed a valid Will datedl2.11.1982 thereby bequeathing 80 kanals of land out of a total of 125 kanals 13 marlas in favour of Smt. Raj Kaur and divided the remaining amongst plaintiffs 2 and 3 and the defendants. Thus, the mutation sanctioned in favour of the defendants is liable to be set aside.
3. Defendants in their written statement alleged that plaintiff is not the legally wedded wife of late Harsharan Singh and nor plaintiffs 2 and 3 are his daughters. In fact Smt. Raj Kaur is married to one Gursewak Singh of All-Mall. Even if the marriage is proved the same is void. It has been further stated that defendant Mohinder Kaur had strained relations with her husband-Harsharan Singh, as is clear from the application filed before the Magistrate for maintenance allowfcice. Other allegations with regard to abetting the murder of Harsharan Singh has been emphatically denied. Defendants have otherwise averred that the Will set up is a forged and fabricated document and so does not affect their proprietary as well as possessory rights.
4. On the pleadings of the parties, the following issues were framed :
(1) Whether Harsharan Singh @ Mohan Singh executed a valid Will in favour of Raj Kaur on 12.11.1982 ? OPP.
(2) If issue No. 1 is not proved whether Raj Kaur is the widow of Harsharan Singh and the plaintiffs No. 2 and 3 are the daughters of Harsharan Singh @ Mohan Singh ? OPP.
(3) If Raj Kaur is not proved to be widow of Harsharan Singh @ Mohan Singh what share the plaintiffs No. 2 and 3 are entitled to claim, if any, from inheritance of Mohan Singh @ Harsharan Singh ? OPP.
(4) Whether the plaintiffs have got no locus standi to file the present suit? OPD.
(5) Whether the plaintiffs have got no cause of action for filing the present suit? OPD.
(6) Whether the suit is vague, if so, its effect ? OPD.
(7) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction ? OPD.
(8) Relief.
Trial Court after evaluating the evidence adduced held the Will to be a genuine document under issue No. 1. Issues No. 2 and 3 were declared to be redundant in view of decision under issue No. 1 Issues 4,5,6 and 7 were not pressed by the defendants and so were decided against them. Resultantly, the suit was decreed as prayed for. The other suit filed by the defendants bearing No. 537 of 1985 was also consequently dismissed.
6. Defendants filed two separate appeals against the judgment and decree of the Court below, which were clubbed by the lower Appellate Court and disposed of by one judgment. The appellants challenged the findings of the Trial Court in respect of material issue relating to the validity of the Will set up by Smt. Raj Kaur as well as raised objection to the judgment and decree of the Court below for having not decided the other issues despite evidence having been led in respect of those issues. The lower Appellate Court once again examined the matter on fact as well as law. The Court after carefully perusing the oral as well as documentary evidence adduced came to the conclusion that the Will set up by Smt. Raj Kaur-respondent is shrouded by various suspicious circumstances. Some of the points noticed by the lower Appellate Court can be stated as under:
(1) That the testator was an educated young man of 40 years of age suffering from no disease and so the execution of Will at this young age is by itself not free from suspicion;
(2) That Will was got scribed and executed from a Petition Writer in Tehsil premises at Faridkot, a place far away from Alampur Maridra, Tehsil Mansa, District Bathinda, the permanent residence of the deceased;
(3) That both the attesting witnesses belong to Village Burj Harike from where Smt. Raj Kaur belongs;
(4) Despite the office of Sub Registrar at a distance of more than 10 to 15 Karams from the seat of the scribe, no explanation has been put forward as to why the Will was not got registered at Faridkot;
(5) Both the attesting witnesses, namely, Dhallan Singh and Gurnaib Singh are relations Raj Kaur’s father-Rup Singh;
(6) No provision has been made in the Will for old parents of Harsharan Singh, namely, hi s father and mother, espedally when Hamam Kaur- his mother was suffering from paralysis and in fact died during the pendency of the suit; and
(7) Male minor sons in a joint agricultural family have been given only a pittance from the estate left by the deceased.
7. Similarly, the lower Appellate Court came to the conclusion that it was incumbent upon the Trial Court to decide each one of these issues which the parties had pressed and so the Court below has not properly performed its duties. Regarding the status of Smt. Raj Kaur the Court held her to be at best a mistress. Similarly, the Court came to the conclusion that for lack of proper evidence even the minor daughters cannot be held to be legitimate children of the deceased. Resultantly, the suit of Smt. Raj Kaur and others was ordered to be dismissed whereas the suit filed by Mohinder Kaur was decreed as prayed for.
8. The learned Counsel for the appellant has termed the findings of the lower Appellate Court to be wholly un-sustainable as the same run counter to the well laid down principles of law for evaluating the evidence in respect of the Will. Similarly, the Court has erred in law in ignoring the cogent evidence led to prove the second marriage of Harsharan Singh deceased with Raj Kaur and they are having been blessed with two daughters. Otherwise too, the Court below has simply brushed aside the proved facts on record that brothers of Smt. Mohinder Kaur murdered Harsharan Singh and his father and were convicted by the Court of Sessions. Complicity of Smt. Mohinder Kaur is writ large and thus dis-entitles her of inheritence. In any case, the Will having been proved by examining the scribe as well as the attesting witnesses, whose testimony has remained unchallenged the impugned judgment and decree of the Court below deserves to be reversed. Lastly, the Counsel argued that even if be taken that the deceased could not contracted a second marriage with Smt. Raj Kaur yet the two minor daughters of the appellants at best could be termed to be the illegitimate off spring but all the same entitled to inherit in view of Section 16 Sub-clause (3) of the Hindu Marriage Act. Thus, even if the Court comes to the conclusion that the Will is not a genuine document yet the two appellants, namely, Kiranjit Kaur and Nikki alongwith defendants succeed equally to the estate left by the deceased and so to this extent the appeal is liable to be accepted.
9. Counsel for the respondents on the other hand argued that the Court below on carefully perusing the oral as well as documentary evidence testing the same on PW” basis of various decisions of this Court as well as of the Apex Court has finally come to the conclusion that the Will set up by Smt. Raj Kaur is nothing but a forged and fabricated document conferring no right upon the persons on the basis of the Will. This being the finding of fact calls for no interference. The Court below has also come to the conclusion that Smt. Raj Kaur at best acquired the status of a mistress and so rightly declined the claim set up by plaintiffs 2 and 3 even under Section 16 Sub-clause (3) of the Hindu Marriage Act.
10. Concededly, Harsharan Singh was married to Mohinder Kaur and was blessed with two sons, namely, Madhusudan Singh and Sahib Singh. The relations got strained as Harsharan Singh happened to develop illicit relation; with Smt. Raj Kaur. According to Smt. Raj Kaur he in fact contracted a second marriage with her, and had begotten two daughters named Kiranjit Kaur and Nikki. Lower Appellate Court has, however, come to the conclusion that she had only a status of a mistress and so the off springs are illegitimate children of Harsharan Singh. There is no dispute between the parties that on account close association of Smt. Raj Kaur with Harsharan Singh there were strained relations between Mohinder Kaur and Harsharan Singh leading the former to file a petition for maintenance under Section 125, Cr.P.C. and ultimately leading to leaving of the house. No doubt, brothers of Mohinder Kaur were convicted and sentenced by the Sessions Court for murdering Harsharan Singh and his father but complicity of Mohinder Kaur in this unfortunate happening has not been proved. In fact this is not even the finding of the Criminal Court. Precisely for this reason it is not even the case of the present appellant that Smt. Mohinder Kaur or her sons stand divested of their legitimate right to inherit the property left by Harsharan Singh, hence, the importance of Will which has been set up. As per Will 80 kanals of land outofl25kanalsandfew marlas is stated to have been given to Smt. Raj Kaur and the remaining to be divided amongst plaintiffs 2 and 3 and the defendants. Court below on scrutinising this document has come to the conclusion that the same is shrouded with mystery and so is liable to be ignored for a number of reasons, which have been briefly noticed in the earlier part of the judgment. Reasons given by the lower Appellate Court are cogent. In fact the Counsel for the appellant has been unable to persuade me to take a contrary view. Otherwise too, some of the facts which have been noticed by the Court below are glaring. Concededly, Harsharan Singh was barely 40 years of age and not suffering from any serious ailment. So, the question of a young man’s executing a Will (though not strictly barred) does cause a suspicion in the mind. Coupled with it is the execution of such a document at a far off place from his permanent place of residence at Faridkot which co-incidently is attested by near relations of the father of Smt. Raj Kaur. Not only this for no plausible reason the Will has not even been registered. No provision had been made even for his mother who admittedly was suffering from paralysis. Lastly, ignoring the claim of Madhusudan Singh and Sahib Singh (male lineal descendants) in a joint agricultural family. Before depriving legitimate claimants from their rights any such document not only is to be proved by examining the scribe as well as the attesting witnesses but the propounder has to remove all such suspicions which arise as and when such a document is settled. Invariably Courts follow the dictum of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors., AIR 1959 S.C. 433, and test the Will set up within the parameters laid therein. Suchlike document is to satisfy the judicious conscience of the Court. Examined in the light of the facts as briefly noticed above, I have no hesitation in holding that the Will set up is indeed shrouded by suspicious circumstances as neither any provision was made for old parents nor any cogent reasons have been assigned to almost deprive the male member of the family.
11. The lower Appellate Court while holding Smt. Raj Kaur to be a mistress has chosen to deprive even the minor children of their right to inherit in view of Section 16 Sub-clause (3) of the Hindu Marriage Act. It has come into evidence that Harsharan Singh contracted a second marriage with Smt. Raj Kaur. This marriage was performed according to Anand Karaj rites and to prove the same Dhallan Singh PW3, Gurhaib Singh PW4 and her father Roop Singh PW5 have been examined. All of them have testified on oath. Two minor children were blessed out of this wed-lock. To support it the plaintiffs adduced in evidence the voters list as well as the school leaving certificate of these children wherein their father name is recorded to be Harsharan Singh. The Court, however/ chose to ignore this evidence on the ground that the Granthi of the Gurudawara has not been examined.- In addition thereto, Harsharan Singh in his statement before the Court in proceeding under Section 125, Cr.P.C. too denied the factum of marriage. Even mother of Harsharan Singh (earlier defendant No. 4) too has declined the marriage of Raj Kaur with Harsharan Singh. Concededly, in school leaving certificates parentage of the minor plaintiffs is given as Harsharan Singh. Raj Kaur is also stated to be a voter in the house of Harsharan Singh and recorded to be a wife of Harsharan Singh. Cumulative effect of these documents prove that though marriage of Raj Kaur with Harsharan Singh was void in terms of Hindu Marriage Act the children begotten from such a marriage in terms of Section 16 Sub-clause (3) of the Act acquire a right to inherit the property left by the deceased. Thus, I am of the view that the judgment and decree of the Court below deserves to be modified to this extent. Accordingly, I partly accept the appeal, thus modifying the judgment and decree of the lower Appellate Court holding that whereas Smt. Raj Kaur has no claim in the property left by Harsharan Singh, on Harsharan Singh’s death his wife-Mohinder Kaur, legitimate sons, namely, Madhusudan Singh and Sahib Singh and his mother are Class I heirs as per Hindu Succession Act. Under Section 16 Sub-clause (3) of the Hindu Marriage Act, which reads as under, even illegitimate children inherit the property of their parents :
“16(3). Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”
This way each one of the aforesaid persons become entitled to 1/6th share each. Mother of Harsharan Singh has died during the pendency of the suit. Her share as per Section 15-A of the Act falls firstly upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband. Since in the instant case her husband had already expired Sarvshri Madhusudan Singh and Sahib Singh alone succeed to the estate of Smt. Harnam Kaur-defendant No. 4. Simiftrly, Smt. Mohinder Kaur too has expired during the pendency of the suit and her share too devolves upon her sons-Madusudan Singh and Sahib Singh. Accordingly, the appellants, namely, Kiranjit Kaur and Nikki become entitled to l/6th share each i.e. l/3rd total and the remaining 2/3rd falls to the share of respondents 2 and 3. Appeal is accordingly partly accepted to the extent indicated.
No order as to costs.