R.S.A.No. 1311 of 2008 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1311 of 2008 (O&M)
Date of decision: 13.11.2009
Krishan Kumar
......Appellant
Versus
Jagat Singh and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.G.S.Nagra, Advocate,
for the appellant.
Mr.Harsh Bungar, Advocate,
for the respondents.
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SABINA, J.
Plaintiff Krishan Kumar filed a suit for declaration,
permanent injunction and recovery of possession, which was
decreed by the Civil Judge (Sr.Divn.), Jalandhar vide judgment and
decree dated 10.4.2006. In appeal, the said judgment and decree
were set aside by the Additional District Judge, Jalandhar vide
judgment and decree dated 28.11.2007 and the suit of the plaintiff
was dismissed. Hence, the present appeal by the plaintiff.
R.S.A.No. 1311 of 2008 (O&M) 2
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 1 and 2 of its judgment, are as under:-
” Instant suit was brought by Krishan Kumar
pleading that Banta Ram father of plaintiff and defendants
No.1 to 7 was owner in possession of suit property,
purchased by him from department of Rehabilitation.
However, substantial amounts towards sale consideration
was paid by the plaintiff towards sale consideration and
many installments were also paid by him. A will is said to
have been executed by Banta Ram during his life time
while being in sound disposing mind on 20.5.1976 in
favour of the plaintiff. After death of Banta Ram, plaintiff
has become owner in possession of the suit property and
has remained in continuous and uninterrupted possession
thereof. He was getting it cultivated from his various
tenants from time to time and at the time of filing of the
suit Harbans Singh was cultivating it as a tenant of the
plaintiff. During life time of Banta Singh, plaintiff had
been assisting him in cultivation of land and had spent a
lot of money in the improvement of land. He also got
installed a tubewell in the suit property. Both of Banta
Ram and his wife used to live with plaintiff in vilalge Garhi
Bakshi while defendants No.1 to 4 have been residing
separately from Banta Ram ever since their respective
R.S.A.No. 1311 of 2008 (O&M) 3marriages while daughters of Banta Ram were happily
married and are well settled in their matrimonial houses.
Being pleased and satisfied with the services rendered by
plaintiff Banta Ram voluntarily executed Will in favour of
plaintiff on 20.5.1976. Plaintiff has got the Will registered
as well in the year 1992. However, revenue authorities
have wrongly and illegally mutated estate of Banta Ram
on the basis of natural succession, which orders do not
bound him. Under the garb of illegal orders passed by
Collector, defendants have started proclaiming to be
owners of suit property and have threatened to interfere in
his possession and to dispossess him therefrom. They
were also threatening to alienate the suit property and in
the months of May and June, 2000, defendants have
taken forcible possession of suit property in his absence,
violating orders dated 17.3.1998. By way of instant suit
Krishan Kumar had asked for being declared exclusive
owner in possession of the suit property, described and
detailed in the head note of plaint and had asked for
delivery of possession thereof to him and for perpetually
restraining defendants from dispossessing him from the
suit property and alienating any part thereof.
2. Defendats No.2 and 3 in their jointly filed
written statement have raised preliminary objections
R.S.A.No. 1311 of 2008 (O&M) 4against maintainability of suit and have termed the suit
under value for purpose of Court fee and jurisdiction and
locus standi of plaintiff and alleged accrual of cause of
action for filing this suit have also been questioned. On
merits, it is admitted that Banta Ram was owner in
possession of suit property, but it is denied that Banta
Ram had bequeathed it upon plaintiff. At the time of death
of Banta Ram, plaintiff was just but a student and a kid,
who could not have spent any amount towards sale price
of suit property or towards its improvement, rather
defendant No.2 have spent enough money to enable
Banta Ram to purchase suit property and to maintain it.
On these averments dismissal of the suit has been
asked.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
1. Whether Sh.Banta Singh executed a Will
dated 30.5.1976 in favour of the plaintiff? OPP
1-A Whether the defendant has taken the
possession during the pendency of the suit in the
month of May/June, 2000, if so its effect? OPP
2 Whether in the alternative, plaintiff is entitled
for possession of the property? OPP
3. Whether the suit is not maintainable in the
R.S.A.No. 1311 of 2008 (O&M) 5
present form? OPD
4. Whether the plaintiff is entitled to the
declaration as prayed for? OPP
5. Whether the plaintiff is entitled to the
injunction as prayed for? OPP
6. Relief.
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff Krishan Kumar had filed a suit for declaration that
he was exclusive owner in possession of the suit land on the basis of
Will dated 20.5.1976 executed by his father Banta Ram in his favour.
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
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
R.S.A.No. 1311 of 2008 (O&M) 6
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.
In the present case, the Will Ex.P-1 was allegedly
executed by executant Banta Ram on 20.5.1976, which reads as
under:-
“I, Banta Ram resident of village Garhi Baksha, Tehsil
and District Jullundur hereby revoke all previous Wills and
codecils made by me and by this my last Will bequeath
and devise my Agricultural land measuring about 35
kanals situated in vilalge Kandhala Guru, Tehsil and
District Jullundur to my son Krishan Kumar absolutely and
appoint sole executor of this my WILL.
R.S.A.No. 1311 of 2008 (O&M) 7
I am sound of mind at this time of executing
this WILL.
In witness the proof I have signed this Will
hereunder on 20th day of May, 1976.”
Banta Ram died on 11.7.1976, the Will was thereafter, got
registered on 23.4.1992.
A perusal of the Will reveals that the executant has not
given any reason as to why the other heirs were being disinherited all
the estate of the executant. There is no dispute that Will is a
deviation from natural succession and the executant can execute the
Will in favour of one or more legal heirs but in normal circumstances,
it is expected for the executant to atleast give some reasons for
disinheriting other legal heirs, while executing the Will in favour one
or more legal heirs. The executant died in July, 1976, whereas, the
Will was executed in May, 1976. The attesting witness to the Will
Gurbant Singh was examined as PW-1. The cross-examination of
the said witness is very relevant. In his cross-examination PW-1
Gurbant Singh deposed that the Will was executed in the house of
Kartar Chand. The Will was got typed from old Courts, Jalandhar
City about a week prior to its execution. Hari Singh signed the Will
first of all and thereafter, he (witness) had signed the Will. Thereafter
Banta Ram thumb marked the Will. Thus, from the cross-
examination of PW-1, it is evident that the attesting witnesses had
attested the Will before the executant had thumb marked the same.
R.S.A.No. 1311 of 2008 (O&M) 8
PW-1, thus, cannot be said to be an attesting witness to the Will in
the real sense. The propounder of the Will remained silent for fifteen
years and did not produce the Will before any authority or anybody
else. This also renders the Will a suspicious document in the facts
and circumstances of the present case. A perusal of the Will further
reveals that it has been typed that the executant had signed the Will,
whereas, it has been thumb marked by the executant. In these
circumstances, the learned Additional District Judge had rightly held
that the Will in question was not a genuine document.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
November 13, 2009
anita