R.S.A.No. 5020 of 2003 1
In the High Court of Punjab and Haryana at Chandigarh
Date of decision: 2009
R.S.A.No. 5020 of 2003
Raj Kumar and another ......Appellants
Versus
Kailon Devi .......Respondent
R.S.A.No. 5021 of 2003
Giani Ram and others ......Appellants
Versus
Kailon Devi .......Respondent
R.S.A.No. 5152 of 2003
Ram Kumar and others ......Appellants
Versus
Kailon Devi .......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. C.B.Goel,Advocate,
for the appellants.
None for respondent.
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R.S.A.No. 5020 of 2003 2
SABINA, J.
Vide this judgment, RSA Nos. 5020, 5021 and 5152 of
2003 would be disposed of as the civil suits, out of which the said
appeals had arisen, were consolidated and were disposed of vide
common judgment.
Raj Kumar and Giani Ram filed a suit against Kailo Devi
for declaration and permanent injunction. Kailo Devi filed a suit
against Ram Kumar and others for declaration and permanent
injunction. Both the said suits were consolidated by the trial Court
vide order dated 13.8.2001 as the matter involved in both the suits
was common. The present appeals have arisen out of the said suits.
The case of the parties as noticed by the trial Court in
paras No. 2 to 8 of its judgment is as under:-
“2. Briefly the fact of the case titled Raj Kumar Versus
Kailo Devi is that the agricultural land measuring 54
Kanals 5 Marlas being 1085/5424 share of total land
measuring 271 Kanals 4 Marlas comprised in Khewat
No.12, Khatoni No.18 to 26 is situated within the revenue
estate of village Karah Sahib, District Kurukshetra vide
jamabandi for the year 1995-96. This land was previously
owned by Ram Chander son of Inder Singh who was
married to Banti Devi. Both Ram Chander and Banti Devi
had expired issueless.
3. It is further averred that Ram Chander had three
R.S.A.No. 5020 of 2003 3brothers namely Lal Singh, Dayal Singh, Ram Singh and
one sister Dayalo. All these brothers and sister had
already expired prior to the death of Ram Chander and
the plaintiffs are the natural heir of deceased Ram
Chander. The defendant Kailo Devi is the wife of Hawa
Singh of Gaddar Patti Devi Garh Road, Kaithal and her
daughter namely Rekha Devi was born from the loins of
Hawa Singh. Kailo devi is the daughter of Dayal Singh’s
wife’s uncle and she used to visit the house of her cousin
sister during life time of Ram Chander and at that
occasion, illicit relations developed between Ram
Chander and defendant. After the death of Ram Chander
the defendant Kailo Devi has started alleging herself to be
heir of deceased Ram Chander, on the basis of Will
dated 11.6.1996 but the same is null void on the following
grounds:-
(a) the Will dated 11.6.1996 is a result of manipulation
and deceased Ram Chander never executed any Will
with his free consent.
(b) That there was no occasion to execute the Will in
favour of the defendant by excluding the natural heirs
including the plaintiffs as the plaintiffs were serving
deceased Ram Chander during his life time.
(c) The Will dated 11.6.1996 is bad due to in competency
R.S.A.No. 5020 of 2003 4mental weakness of testator.
4. It is further averred that the will dated 11.6.1996
does not confer any right, title or interest in the suit land
to the defendant. The plaintiffs requested the defendant
to admit their claim but in vain. Hence, the cause of
action arose to the plaintiffs and present suit has been
filed in which a decree for declaration is sought to the
effect that the plaintiffs and other natural heirs of
deceased Ram Chander are the owners in possession of
the suit land and the defendant has got no right by virtue
of alleged will dated 11.6.1996 in the suit land and the will
dated 11.6.1996 is null and void and not binding on the
plaintiffs. The plaintiffs have also sought a decree for
permanent injunction restraining the defendant from
interfering in any manner with the possession of plaintiffs
over the suit land or to alienate the same.
5. Notice of this suit was given to the defendant, who
appeared and filed the written statement. In her written
statement, besides taking preliminary objections on the
grounds of maintainability, concealment of true fact etc.
It is further averred that the plaintiffs are not the natural
heirs of Ram Chander. Kailo Devi is the real cousin
sister of Smt. Chhoto, mother of plaintiff No.2. Ram
Chander was known to defendant on account of the
R.S.A.No. 5020 of 2003 5near relation with the sister-in-law of deceased Ram
Chander. The defendant was turned out by her first
husband Hawa Singh and in the year 1994 the
defendant had intimate relation with Ram Chander and
defendant entered to second marriage with Ram
Chander according to rites and custom and started to
live in the company of deceased Ram Chander as his
wife. In the voter list prepared in the year 1996, the
defendant has been shown to be the wife of Ram
Chander alias Chander. Ram Chander is order to
reward the services rendered by defendant executed a
Will in her favour and bequeathed all his movable or
immovable property.
6. The Will dated 10.6.1996 is a registered Will and was
executed by deceased Ram Chander in a sound
disposing state of mind. Rest of the allegations of the
plaint were specifically denied by the defendant and
prayed for dismissal of the present suit.
7. The brief facts of the case titled Kailo Devi vs. Ram
Kumar etc. is that Kailo Devi, the plaintiff is the owner
in possession of the agricultural land measuring 54
kanals 5 marlas being 1085/5424 share of total land
measuring 271 kanals 4 marls comprised in Khewat
No.12, Khatoni Nos. 18 to 26 in all 47 Kittas, is situated
R.S.A.No. 5020 of 2003 6at village Karah Sahib, Tehsil Pehowa, District
Kurukshetra as per jamabandi for the year 1995-96.
8. It is further averred that Ram Chander alias Chander
who was the husband of Kailo Devi, was the owner in
possession of this land, who expired on 16.3.1998.
Ram Chander executed a Will in favour of Kailo Devi
and bequeathed the suit land in Kailo Devi. The suit
filed Kailo Devi versus Ram Chander was filed for
permanent injunction restraining the defendant from
interfering in any manner in the peaceful possession of
Kailo Devi over the suit land. In the written statement,
the Will in favour of Kailo Devi was disputed and it was
averred that neither Kailo Devi is the owner of the suit
land nor is in possession over the same and prayed for
dismissal of the present suit.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether the plaintiffs are the owner in
possession of the suit land as alleged? OPP
2. Whether the plaintiffs are entitled to relief of
permanent injunction as prayed for? OPP
3. Whether the impugned Will dated 11.6.1996 is
illegal and void? OPD
4. Whether the suit of the plaintiff is not
R.S.A.No. 5020 of 2003 7maintainable in the present form? OPD
5. Whether the plaintiffs have no locus standi to
file the present suit? OPD
6. Relief. “
After hearing learned counsel for the parties, I am of the
opinion that the present appeals deserve to be dismissed.
The controversy involved in these cases is as to whether
deceased Ram Chander @ Chander had executed the Will in
question dated 11.6.1996 in favour Kailo Devi. The only argument
raised by learned counsel for the appellants is that the Will in
question had not been duly proved by the propounder. The attesting
witness examined by the propounder to prove execution of the Will
had failed to support the case of the propounder Kailo Devi.
Admittedly, Ram Chander @ Chander was owner in
possession of the suit land. He was married to Banti Devi. Three
brothers and sister of testator Ram Chander pre-deceased him. The
defendants in a suit filed by Kailo Devi and Plaintiffs Raj Kumar and
Giani Ram in a suit filed by them against Kailo Devi, are nephew of
testator Ram Chander. Chhotto Devi was wife of Dayal Singh
(father of plaintiff Giani Ram). Bohti Devi, sister of Chhotto, was
married to Ram Singh, father of Sher Singh and Amar Singh
(defendant Nos. 11 and 12 in the suit filed by Kailo Devi). Kailo Devi
was cousin sister of Chhotto Devi and Bohti Devi and used to visit
Chhotto Devi. Consequently she (Kailo Devi) developed intimacy with
R.S.A.No. 5020 of 2003 8
the testator. In the written statement filed by the defendants, in the
suit filed by Kailo Devi, in preliminary objection No.3, it has been
averred as under:-
“That the present plaintiff is in fact wife of one Hawa
Singh of Patti Gaddar Dvi Garh Road Kaithal. The
present plaintiff even blessed with a daughter namely
Rekha Devi from the loins of said Hawa Singh of Patti
Gaddar Kaithal.
That the present plaintiff is the daughter of Dayal
Singh’s wife uncle (brother of Ram Chander deceased)
and she had been visiting off and on to her said cousin
sister (Dayal Singh’s wife) in the life time of Ram
Chander. At that occasion the illicit relations devloped
between Ram Chander and present plaintiff. Now taking
illegal benefit of that occasion the plaintiff had started
claiming herself to be wife of deceased Ram Chander
which in fact, she is not as such.”
Ram Chander executed the Will in question in favour of
Kailo Devi and hence, both the suits were filed in which the question
for consideration was as to whether the Will executed by Ram
Chander in favour of Kailo Devi was a genuine Will.
A Will is a document that speaks of the mind of the
deceased after his death. The executant of the Will is though never
available for deposing as to under what circumstances, he has
R.S.A.No. 5020 of 2003 9
executed the Will. This aspect introduces an element of solemnity in
the decision of the question whether the document propounded is
proved to be the last Will of the testator. Normally, the onus which
lies on the propounder can be taken to be discharged on proof of the
essential facts which go into the making of the Will. A Will is
required to be proved like any other document. Since the Will is
required to be attested and as per Section 68 of the Indian Evidence
Act, 1872, at least one attesting witness is required to be examined
to prove due execution of the Will. The attesting witness is required
to establish that the Will in question was executed by the testator in
the presence of attesting witnesses and they had attested the same
in the presence of the testator. In a case where the Will is a
registered document then the endorsement made by the Sub
Registrar that the Will had been thumb marked or signed by the
executant in his presence after it was read over to the executant has
a presumption of truth. It is also a settled proposition of law that in
connection with Wills execution of which is alleged to be surrounded
by suspicious circumstances, the test of satisfaction of judicial
conscience has been evolved. That test emphasis that in
determining the question as to whether an instrument produced
before the Court is the last Will of the testator, the Court is called
upon to decide a solemn question and by reason of suspicious
circumstances, the Court has to be fully satisfied that the Will has
been validly executed by the testator.
R.S.A.No. 5020 of 2003 10
In the present cast, the Will in question is a registered
document. A perusal of the Will Ex.P-1 reveals that the executant
had been treating the beneficiary as his wife. It has further been
averred in the Will that he was being looked after by Kailo Devi and
hence, after his death his entire property should be inherited by
Kailo Devi. The said Will bears the thumb impression of executant
Ram Chander and was attested by Satpal and Ronki Ram. It was
scribed by Jai Kumar. The intimacy between the executant and the
propounder is not in dispute. Kailo Devi was cousin of Chhotto and
Bohti Devi, who were wives of brothers of the executant. In these
circumstances, she developed intimacy with Ram Chander and
consequently he executed the Will in favour of Kailo Devi. The
endorsement on the Will was made by the Sub Registrar that the
contents of the Will were read over to the executant has a
presumption of truth. DW4 Ronki Ram, one of the attesting witnesses
of the Will, appeared in the witness box and deposed that he had
thumb marked a document at the instance of Ram Chander. The
age of the said witness was mentioned as 81 years when his
statement was recorded on 8.10.2001 and it appears that he could
not give the details with regard to execution of the Will. However,
DW-5 Jai Kumar, who was the scribe of the Will, had in fact, proved
the Will. The said witness had deposed that he had scribed the Will
dated 10.6.1996 and had made an entry at Sr.No.105 in his register.
He had scribed the Will at the instance of Ram Chander in favour of
R.S.A.No. 5020 of 2003 11
Kailo Devi. Thereafter, it was read over to him in the presence of
Ronki Ram and Satpal. The Will was then thumb marked/signed by
the executant and the witnesses in his presence. Although a scribe
cannot be treated as an attesting witness but in the present case, the
scribe has categorically deposed with regard to the execution of the
Will and thus, his statement cannot be treated to be that of merely a
scribe as the Will after it was scribed by him was duly executed in
his presence.
Hence, the Will in question, which was duly executed by
the executant, cannot be said to be surrounded by suspicious
circumstances as the executant, who was not having any child of his
own, had executed the Will in favour of Kailo Devi, whom he was
treating as his wife. The executant had died on 16.3.1998, whereas,
the Will in question was executed on 11.6.1996
In these circumstances, the Courts below had rightly held
that the Will in question was duly proved to have been executed by
executant Ram Chander in favour of Kailo Devi and was a genuine
Will. I do not find any illegality or irregularity in the impugned
judgments which may give rise to any substantial question of law for
consideration of this Court in these second appeals.
Accordingly, the present appeals stand dismissed.
(SABINA)
JUDGE
July , 2009
anita