JUDGMENT
Satish Kumar Mittal, J.
1. This Regular Second Appeal has been filed by Parkash Kaur against the judgment and decree passed by the Courts below, vide which her claims to the suit property on the basis of the Will dated 27.6.1978 (Ex.P1) alleged to have been executed by her father Amar Singh by excluding, his sons, another daughter and wife, has been rejected.
2. The brief facts of the case are that Amar Singh, who had migrated from Pakistan, was allotted the land in dispute measuring 89 Kanals 18 Marias, situated in two villages, namely Bagh Sikandar and Ferozepur, now in District Fatehgarh Sahib. He was having four sons, two sons of his pre-deceased son Saudagar Singh, two daughters and his wife. On 6.5.1976, he suffered a consent decree regarding the land in question in favour of his aforesaid four sons and two grandsons. Subsequently, by the instant suit, which was filed on 4.3.1978, he challenged the aforesaid consent decree being null and void and based upon fraud and mis-representation. He alleged that the aforesaid consent decree was got suffered by him on the fraud played by his sons, who brought him to Bassi Pathana for getting the medicine and told him that he has to appear before the revenue authorities to inform them that all of his sons cultivate the land along with him, otherwise, his land would be declared surplus. It was also alleged that the aforesaid consent decree was not legally valid as it amounts to transfer of the property of the value of more than Rs. 100/- and the same was not registered. In that suit, Amar Singh impleaded all of his four sons and two grandsons as defendants.
3. Before the aforesaid defendant filed the written statement, plaintiff Amar Singh expired on 10.7.1978. After his death, his daughter Parkash Kaur filed an application for impleading her as the sole legal representative of deceased Amar Singh on the basis of Will dated 27.6.1978 alleged to have been executed by her father bequeathing the entire suit property in her favour. The said application was contested by her brothers and nephews, except her two brothers, namely Karnail Singh and Jarnail Singh (defendants No. 2 and 4 in the suit), who admitted her claim that the Will was executed by Amar Singh in her favour. Since the application filed by Parkash Kaur was contested, the learned trial Court framed an issue to the effect whether the applicant was the legal representative of the deceased on the basis of the aforesaid alleged Will or not. On that issue, the parties led evidence. Ultimately, the learned trial Court vide its order dated 7.2.1980 rejected the claim of Parkash Kaur on the basis of the aforesaid Will while holding that the Will was surrounded by highly suspicious and doubtful circumstances and the same did not appear to be natural at all. However, Parkash Kaur was permitted to pursue the suit filed by her father Amar Singh in the capacity of his daughter. The part of the aforesaid order which is relevant for determination of the present controversy is reproduced hereunder:-
“To prove her contention on this issue the applicant has produced and examined Gamdoor Singh (AW1), Gurnam Singh (AW2) and herself appeared into the witness box as AW3. All of them in their examination-in chief have proved on record the alleged will Ex.A1 and tried to support applicant’s case. In rebuttal respondents/ defendants have produced and examined Gurdev Singh Reader, the Court of Sub Judge, 1st Class, Bassi (RW1), Sh. R.S. Kang, Advocate (RW3) and one of the respondent Gurmukh Singh appeared into the witness box as RW2.
The Learned counsel for the applicant referring to the evidence provided by AW1 to AW3 has urged that they have proved the execution of a valid Will, Ex.A1, by Amar Singh deceased in favour of applicant and testamentary capacity of the testator. Therefore, she is entitled to be represented as his sole L.R. on record. But after giving a deep thought to this contention, in the light of record available on the case file, the court has failed to find sufficient force or substance in the same. No doubt, in their examination-in-chief, AW1 to 3 have tried to support applicant’s case but in view of statements made by them, while under cross examination hone of them inspires any confidence in him. AW1 appears to be more than interested in the applicant and AW2 does not appear to be a natural witness. Likewise, the applicant, AW3, is also worthy of no credit. On a careful examination of Ex.A1, the Will, under the circumstances of this case appears to be shrouded in highly doubtful and suspicious circumstances. Admittedly deceased Amar Singh had no dispute, whatsoever, with his wife (widow) or with his sons. Therefore, there appears to be no cogent reasons or logic to exclude all of them from his valuable inheritance in favour of applicant. This fact becomes more important when it is considered in the back-ground of a ruralite agriculturist who has more attachment with his land and the sons or grand-sons than the daughters. No reason or explanation, whatsoever, could have been put forth on behalf of the applicant to explain exclusion of the sons as well as the wife from his inheritance by deceased Amar Singh through this Will which does not appear to be natural at all under the circumstances as this. The scribe of this Will, for the reasons best known, has not been produced and examined in the court nor been alleged that he was dead or could not be procured or was not subject to the process of court. No reasons, whatsoever, has been given in the recitals of this document for exclusion of defendants or their mother by the deceased. One of the attesting witnesses Gamdoor Singh is highly interested in the applicant and the presence of others also appears to be unnatural and they look to be merely chance witnesses. Therefore, neither of them can be relied upon to prove this Will under such suspicious circumstances of this Will. The theory of service of deceased testator by the applicant propounded to support this Will in his favour under the circumstances also does not appear plausible or convincing. AW1 admittedly has taken an active part in the execution of this Will which further adds to its suspicious circumstances.
As discussed above, the Will Ex.A1 is shrouded in highly suspicious and doubtful circumstances and does not appear to be natural at all. Therefore, in the absence of any cogent explanation for the above said suspicious circumstances the conscious of court is not satisfied regarding its genuineness nor it appears to be natural one. No cogent explanation for the above said suspicious circumstances could have been put forth on behalf of the applicant and thus the necessary conditions as laid down through various rulings, including by the Hon’ble Supreme Court of India reported in A.I.R. 1959 page 443 and A.I.R. 1964 page 529. Therefore, the court is inclined not to accept the alleged Will Ex.A1 as genuine, therefore, on its basis the applicant cannot be held to be the sole L.R. of deceased plaintiff Amar Singh. Accordingly this issue has been decided against her.
As discussed vide findings on issue No. 1 above the applicant cannot be held entitled to be the sole L.R. of deceased plaintiff Amar Singh on the basis of alleged Will, Ex.A1.
However, in view of the fact that admittedly she is a daughter of deceased Amar Singh and thus under Succession Act, she along with the defendants is one of Class I heirs of deceased Amar Singh, therefore, it would be appropriate if she is allowed to represent deceased plaintiff Amar Singh as such if she chooses to be so for limited purposes of contesting this suit on her behalf pertaining to his share in the disputed land. Therefore, she is hereby permitted to continue and to be represented deceased plaintiff Amar Singh in the capacity of his daughter and his one of class I heir, if she chooses to be so, for carrying on the contest in this suit against the defendants. This order has been made for a limited purpose of this suit in the light of law laid down by Hon’ble High Court through an authority reported in 1979 C.L.J. (Civil) at page 119, in the interest of justice. The application in question of the applicant accordingly stands rejected but she has been allowed to represent the deceased in a different capacity as discussed above.”
5. Thereafter, Parkash Kaur filed an application for amendment of the suit filed by her father. By that application, she wanted to implead her mother Smt. Harnam Kaur and her sister Smt. Surjit Kaur as defendants No. 7 and 8. She also wanted to amend the plaint to claim herself as owner of the disputed property on the basis of the alleged Will dated 27.6.1978. Again, this application was contested by all the defendants, except aforesaid two brothers, namely Jarnail Singh and Karnail Singh. If was allowed by the learned Trial Court vide its order dated 11.4,1980, while observing as under:-
“After giving due consideration in the light of record available on the case file, the court has failed to agree with the learned counsel for the respondent/defendants nor the objections strongly pressed for by him appears to be tenable in view of the law laid down through an authority of our own Hon’ble High Court reported in (1977)79 P.L.R. page 670 and another authority of Supreme Court of India reported in A.I.R. 1972 S.C. page 2526, wherein it was clearly laid down that legal representative cannot be legally prevented from setting up their own independent title to the disputed properties. Therefore, the objections put-forth on behalf of the defendants has to be overruled. The second objection that as the applicant Parkash Kaur has not been allowed to represent the deceased Amar Singh on the basis of his alleged Will dated 27.6.1978 which has not been believed by this Court vide Order dated 7.2.1970, therefore, she cannot be allowed to re-agitate the matter through this suit But again this plea cannot be sustained in view of law laid down through another authority of our Hon’ble High Court reported in 1979 C.L.J. (Civil) at page 119, according to which an order or finding made on an application under Order 22 Rule 5 C.P.C. cannot be held binding in the main suit against any party. Therefore, what ever the substance or the truth of this plea on merits may be, it has to be held that applicant is entitled to amend the plaint and to take up any independent pleas setting up her own title over the disputed properties and the argument that above said authorities are not applicable in the present case also fails.”
6. Thereafter, the written statement was filed by defendants No. 1, 3 and 5, in which it was alleged that the land in question was partitioned by their father among defendants No. 1 to 6 through a family settlement and in recognition of the same, the consent decree dated 6.5.1976 was suffered by him, which is perfectly legal and valid. It was further alleged that the alleged Will put up by Parkash Kaur was not a valid document and the same was never executed by their father in her favour.
7. Defendants No. 2 and 4 did not file any written statement. Rather, they made statement admitting the claim of Parkash Kaur.
8. On the basis of the pleadings of the parties, the learned trial Court framed the following issues:
1. Whether decree dated 5.6.1976 in suit No. 419 of 6.5.1976 is a nullity as alleged in para 15 of the plaint if so to what effect? OPP
2. Whether Amar Singh deceased executed a valid Will in favour of Parkash Kaur plaintiff on 27.6.1978? OPP
3. Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP
4. Whether deceased Amar Singh was not the owner of the disputed land at the time of his death? OPD
5. Whether the plaintiff has any locus standi to continue with this suit? OPP
6. Relief.
9. In support of their claim, both the parties led their evidence. On issue No. 1, the learned trial Court held that the consent decree dated 6.5.1976 was null and void as the same was based upon fraud and mis-representation. On issue Np.2 regarding the validity of the Will dated 27.6.1978, it was held that the said will is not a genuine document as the same is surrounded by suspicious circumstances. After recording the aforesaid findings on issues No. 1 and 2, it was held on issue No. 4 that after setting aside the decree dated 6.5.1976, Amar Singh was owner of the disputed land and after his death, his property will be inherited by his legal heirs according to the Hindu Succession Act.
10. Against the, aforesaid judgment and decree, three appeals were filed. One appeals was filed by Parkash Kaur aggrieved against the rejection of her claim on the basis of the Will dated 27.6.1978 in her favour. The second appeal was filed by Smt. Harnam Kaur and Surjit Kaur, widow and daughter of Amar Singh claiming that the trial Court should have declared them as co-owners of the land in dispute. The third appeal was filed by two sons and two grand-sons of Amar Singh aggrieved against the setting aside of the consent decree dated 6.5.1976 in their favour.
11. The learned first appellate court dismissed all the three appeals. Regarding the appeal filed by Parkash Kaur, the finding recorded by the trial court on her Will dated 27.6.1978 being surrounded by suspicious circumstances and not a genuine document was confirmed. The appeal filed by Gurmukh Singh and others was dismissed after confirming the finding of the trial Court that the consent decree dated 6.5.1976 was the result of fraud and mis-representation. The appeal filed by Smt. Harnam Kaur and Surjit Kaur was dismissed while observing that they had no locus standi to challenge the judgment and decree of the trial Court as they were not aggrieved by the same as the learned trial court, after setting aside the consent decree dated 6.5.1976, has specifically observed that all the legal heirs of deceased Amar Singh will succeed to the disputed property in accordance with the provisions of Hindu Succession Act.
12. Feeling aggrieved against the aforesaid judgment and decree of the first appellate Court, Parkash Kaur and Gurmukh Singh and others filed two separate Regular Second Appeals in this Court. Regular Second Appeal No. 1573 of 1982, filed by Gurmukh Singh and others, was dismissed in limine on 2.9.1982. However, the instant appeal filed by Parkash Kaur was admitted on 21.12.1982. It appears that the fact regarding dismissal of RSA No. 1573 of 1982 was not brought to the notice of this Court at the time of admissions of this appeal.
13. Shri Gurcharan Singh, learned counsel for the appellant Parkash Kaur submitted that the finding recorded by both the Courts below regarding the validity of the Will dated 27.6.1978 executed by Amar Singh in favour of his daughter Parkash Kaur is erroneous and the said Will was wrongly held to be surrounded by suspicious circumstances. He submitted that the findings on which the aforesaid Will was held to be surrounded by suspicious circumstances are not tenable. While referring to the decision of this Court in Mangat Ram and Ors. v. Dina Nath, (1997-2)116 P.L.R. 122, learned counsel for the appellant submitted that the Will in question was a registered Will and the same cannot be ignored merely on the ground that sons or Class I heirs of the deceased have been excluded from the property. Learned counsel further relied upon decision of this Court in Daljinder Singh v. Harbans Kaur, 2001(2) Civil Court Cases 530, wherein it was observed that registration of a Will is a strong circumstance to prove the genuineness of the Will. If the Will was validly executed by a person of sound disposing mind and it was his voluntary and conscious act, the same has to be given effect in spite of the fact that some of the legal heirs have been excluded in the said Will. Learned counsel for the appellant has also relied upon a Division Bench decision of Delhi High Court in Ramesh Kumar v. Kaushalya Devi, 2002(1) Civil Court Cases 598, wherein it has been held that merely because the Will bequeathing the estate contrary to the normal line of succession or inheritance, the authenticity of such Will should not be doubted because the purpose to execute a Will is to give the property to one person excluding the other heirs. Learned counsel for the appellant submitted that the genuineness of the Will in the instant case should not have been doubted by the Courts below, particularly in view of the fact that two sons of Amar Singh, namely Jarnail Singh and Karnail Singh, have admitted the genuineness of the will dated 27.6.1978, and they have made a statement to that effect in the Court before framing of the issues. Learned counsel further submitted that Amar Singh executed the Will in question in favour of the appellant because she served her father in his old age. He was not happy with his sons and grandsons and that is why he excluded them from the property in the Will.
14. On the other hand, Shri A.S. Chahal, learned counsel for the respondents No. 1, 5 and 6, submitted that there is no infirmity or illegality in the findings recorded by both the Courts below with regard to rejection of the Will dated 27.6.1978 in favour of the appellant being surrounded by suspicious circumstances.
15. I have heard the arguments of learned counsel for the parties and have perused the records of the Courts below. Both the Courts below have recorded a concurrent finding of fact that the Will dated 27.6.1978 alleged to have been executed by Amar Singh in favour of the appellant is a genuine document and the same is surrounded by suspicious circumstances. In this appeal, the aforesaid finding of fact cannot be interfered. Learned counsel for the appellant neither canvassed before me nor formulated any substantial question of law. Since the matter pertains to the Will, therefore, it will be appropriate to reconsider the finding recorded by the Courts below about the genuineness of the Will, which has been held to be surrounded by suspicious circumstances. After examining the evidence available on the record and considering all the facts and circumstances of the case, I find myself unable to differ with the findings recorded by the Courts below. Admittedly, Amar Singh expired within 13 days of the execution of the Will in question. The Will was alleged to be executed on 27.6.1978 and Amar Singh expired on 10.7.1978. Both the Courts below have not discussed at all about the valid execution of the Will in question. It appears that the Courts below have proceeded with the presumption that the Will was duly executed. To prove the execution, the appellant has examined only two attesting witnesses, namely Gamdoor Singh (PW2) and Gurnam Singh (PW3). Admittedly, Gamdoor Singh is real Jija (husband of sister) of the appellant and Gurnam Singh was a resident of different village, namely Bassi Pathana. The Will was scribed by a deed writer, but he was not examined to prove its execution. It has also come in evidence, and even deceased Amar Singh has so stated in his original plaint that he was ill during the last days of his life but the appellant has not produced any evidence to prove that the deceased Amar Singh was in sound disposing mind at the time of execution of the Will. In the Will, no reason has been given by the testator for excluding all the natural heirs including his widow and his other daughter. There is no evidence on the record that deceased Amar Singh was not having any cordial relation with the other legal heirs, rather in the original plaint, he has categorically stated that his relations with his other son were cordial. In these circumstances, it is not understandable as to how and in what circumstances the deceased Amar Singh excluded all his natural heirs while executing the alleged Will. In the Will itself there is no explanation as to why the testator has excluded his other natural heirs. Further, the execution of the Will during the pendency of the suit filed by Amar Singh also creates doubt in the mind of the Court, particularly when the testator was at his fag end. In the instant case, the appellant has claimed title of the property on the basis of the Will and sought declaration that she is owner in possession of the land in question. This suit was initially filed by deceased Amar Singh and the appellant was impleaded only as his legal representative to pursue his claim regarding the validity of the consent decree dated 6.5.1976. The learned trial court specifically not allowed her to contest the suit in her individual capacity regarding the Will. However, she was allowed to claim in the instant suit the property in question on the basis of title based on the alleged Will and somehow the issues were framed and parties led evidence. After appraising the evidence available on record, a concurrent finding of facts has been recorded. I do not find any infirmity or illegality in the findings of fact recorded by the Courts below. After setting aside the consent decree dated 6.5.1976, all the legal heirs of deceased Amar Singh would inherit his property as per natural succession in accordance with Hindu Succession Act.
In view of the aforesaid discussion, I do not find any illegality or infirmity in the impugned judgment and decree passed by the Courts below. Hence, the appeal filed by the appellant is dismissed.