High Court Punjab-Haryana High Court

Sadhu Singh vs Dalip Singh And Others on 24 October, 2009

Punjab-Haryana High Court
Sadhu Singh vs Dalip Singh And Others on 24 October, 2009
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