JUDGMENT
J.S. Narang, J.
1. A registered will dated August 18, 1970 executed by late Hari Singh is the subject matter of challenge between the parties who are related to each other. It shall be apposite to keep in mind the genealogical table of the family which is as under:
Jhunda
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Hari Singh | Kaniya
| |
Chand Kaur Smt. Dhanno Deep Chand
(Plaintiff) Defendant No.4) |
Daya Nand Yad Ram
|
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Ved Singh Satbir Singh.
2. The Will describes the property owned by the testator i.e. he owned a double storeyed pucca house situated at Arya Nagar, Sonipat and he inherited 1/2 share in the agricultural land owned by Jhunda. The total land owned by Jhunda was 199 Kanal 3 Marias. Half of the said share went to the brother of Hari Singh namely Kaniya. He is further shown to have been succeeded by Deep Chand who had further two sons namely Daya Nand and Yad Ram. Yad Ram has no successor whereas Daya Nand has two sons namely Ved Singh and Satbir Singh. Admittedly, half share from the total land fell to the lot of Hari Singh and that he had only two daughters i.e. plaintiff and defendant No. 4. Resultantly, the plaintiff has filed a suit for possession and permanent injunction by claiming 1/4th share in the land i.e. the share measuring 38 Kanals 7 Marias.
3. Hari Singh died on 17.6.1976 and that the defendants No. 1 to 3 got the mutation of the land in question sanctioned in their favour on the basis of a forged will dated 18.8.1970. The mutation is stated to have been sanctioned in their favour on 4.11.1976. Thus, the plaintiff has filed the suit for possession and permanent injunction claiming her right as a natural successor along with defendant No. 4. It is claimed that the plaintiff had been in possession of the land measuring 38 Kanals 7 Marias equivalent to her share.
4. The Will has been contested and it has been stated that the will is a forged document as the perusal of the language and the manner in which the property has been bequeathed spells out that the said document has been procured and is a created document by the persons who are the beneficiaries in respect of the agricultural land. Upon the pleadings of the patties, the issues have been struck and that issues No. 1 and 2 have been framed regarding validity of the Will. The courts below have gone into depth regarding sustain ability of the will. It has been found as a matter of fact that will suffered from two suspicious circumstances; (i) the unnatural deposition in the sense that the plaintiff and defendant No. 4 have been denied the right to inherit the agricultural land when admittedly they are the Class-I heirs of Hari Singh. Yad Ram, Ved Singh and Satbir Singh are grand sons and great grand sons of Kaniya i.e. brother of Hari Singh, and (2) Yad Ram seems to have played crucial and prominent role in execution of the impugned will.
5. After hearing the learned counsel for the parties, the perusal of the pleadings and the record, especially the statements made by the scribe Yad Ram, and others, I am of the view that the trial Court has come to a correct finding in non-suiting the claim of the defendants No. 1 to 3 which has been based on the Will. The statements of the witnesses are at variance. The scribe Chajju Ram DW2 has not been able to with stand the cross examination and resultantly the answer given do not inspite confidence in the facts spelt out in examination-in-chief.
6. Mr. H.L. Sibal, Senior Advocate, learned counsel for the defendant-appellants has argued that the will cannot be disbelieved on the ground that there is unnatural disposition of the property belonging to the testator. The testator has given half share to both the daughters in the pucca house and that as per the normal practice in the villages, the land has always been given to male successors. Thus, the courts below had incorrectly held that the will can be termed as suspicious document. It is further contended that the will explains the reasons for giving the agricultural land to Yad Ram, Satbir Singh and Ved Singh. It is further argued that the testator died in the year 1976 whereas the will is shown to have been executed in August 1970 and the same was duly registered. It is also argued that the scribe has emphatically stated that the attesting witnesses were present and that the will was read over to them and duly explained and it is thereafter they affixed their signatures. He has also identified the signatures of Jogi Ram Lambardar who is stated to have died prior to the deposition made by the scribe. Apart front this, Pirthvi Singh son of Jogi Ram, has been produced as DW who has identified signatures of Jogi Ram. It is argued that so far as Narain Singh, the second attesting witness is concerned, he did not support because of his animosity which had been declared later on with Hari Singh and his family. He initiated litigation against Hari Singh and his family after the execution of the will. Reliance has been placed upon a judgment of the Apex Court in re: Brahma Van Sanatan Dharam Maahamandal v. Kanhaiya Lal Bagla and Ors., 2001(9) S.C.C. 562. It is argued that all circumstances have to be seen when the will came into existence. It is further contended that in the case at hand, the circumstances point to the positive direction and in favour of the beneficiaries of the will. The daughters have not been left behind. They have been given their shares in the house and that as per the normal vision in the families in the villages, agricultural land is always left to the male progenies. Resultantly, the defendant-appellants have been named in the will.
7. It has been further argued that if by virtue of a will any child or children are not given any property for the reasons duly explained, non-bequeathing the property to the said children would not invalidate the execution of the will, if it is otherwise proved in accordance with law reliance has been placed upon a judgment of the apex Court in re: Smt. Sushila Devi v. Pandit Krishna Kumar Missir and ORs. A.I.R. 1971 S.C. 2236.
8. It has been further argued that if an attesting witness falsely denies the attestation, the court is not bound to be swayed by such deposition especially when the animosity between the testator and the attesting witness is proved on record. Reliance has been placed upon a judgment of the Kerala High Court in re: Ittoop Varghese v. Poulose and Ors. A.I.R. 1975 Kerala 141.
9. It is further argued that the finding of facts returned by the trial Court can be interfered with if such findings are based on the question of fact and law. The misreading of a document or terming it to be a suspicious document without appreciation of evidence brought on record vide which such document has been proved, the High Court would be well within its jurisdiction to reverse the finding of facts returned by the trial court. Reliance has been placed upon a judgment of the Hon’ble Supreme Court of India in re: S. Sundaresa Pai and Ors. v. Sumangala T. Pai (MRs. ) and Anr. (2002) S.C.C. 630.
10. On the other hand Ms. Harsh Rekha, Advocate, learned counsel for the plaintiff-respondent has argued that the perusal of the statement of Chajju Ram shows that he has not been able to withstand the cross examination and that the facts stated in the examination-in-chief have not been duly corroborated. She has invited my attention to the statement made by Narain Singh DW4. It may be noticed that Narain Singh is shown as the second attesting witness upon the will. It may be further noted that Narain Singh had been summoned as the witness of defendants for supporting their pleas in respect of the genuiness of the will. Surprisingly Narain Singh has not supported the version of the contesting defendants. He has categorically stated that the will was written by the scribe Chajju Ram but it was at the instance of Yad Ram and not at the instance of Hari Singh. He has further admitted his thumb impression upon the impugned will but he has categorically denied that the will was ever read over to him as has been stated by Chajju Ram the scribe. He has also corroborated the fact that Hari Singh was living in his own house and that he was being looked after by Chand Kaur i.e. his daughter and sometimes by daughter’s daughter. Thus, the fact that Hari Singh was being looked after by the defendants stands belied. He has further denied as to whether Hari Singh had affixed him thumb impressions on the will or not. Thus, the star witness, who is one of the attesting witnesses of the will has negatived the statements of Chajju Ram and the Tehsildar. Admittedly, Narain Singh had been summoned as witness by the contesting defendants and that when he started telling the truth he has been cross-examined with the permission of the Court. Unfortunately, the defendants have not been able to demolish his stand taken, in the examination-in-chief. He has also categorically denied that he did not know the ‘other witness namely Jogi Ram and that he has not corroborated the fact that Jogi Ram had affixed his signatures/thumb impression upon the will alleged to have been executed by Hari Singh. The discrepancies are too sharp so far the corroborating witnesses in respect of the will are concerned.
11. We cannot lose eight of the aspect that Hari Singh and his brother Kaniya inherited the property from their father in equal shares. Resultantly, Yad Ram Ved Singh and Satbir Singh are the ones who are successors to half share inherited by Kaniya. It is further admitted fact that Hari Singh did not have a son but dehors of that he would not have denied the right of agricultural land to his own real daughteRs.
12. Learned counsel for the plaintiff-respondent has placed reliance upon the judgment of the apex Court in re: Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by L.Rs. and Ors., (2001-2)128 P.L.R. 492 (S.C.), wherein it has been categorically held that the second appeal would be entertainable only if a question of law has been set out for determination by the High Court. In the instant case, no question of law has been set out rather the finding of facts is being sought to be reversed in respect of the credibility of the Will. It is further argued that the acceptance of a Will has to go through the rigours of the provisions contained under the “Law of Evidence” and especially the test promulgated under Sections 63 and 68 of the Evidence Act. The attesting witness has categorically denied the plea set up by the defendants, the case set up in the examination-in-chief of Chajju Ram and the Naib Tehsildar stands belied as the attesting witness has categorically stated that the Will was never read over to them nor it was thumb marked by Hari Singh in front of him (before him) but he has very fairly admitted his own thumb impression. The reason that the agricultural land has been correctly bequeathed to defendants No. 1 to 3 by virtue of the will also stands belied, this witnesses has stated categorically that Hari Singh used to reside in his own house and was looked after by Chand Kaur his daughter and also sometimes by daughter’s daughter as well. He has also not identified the thumb impression of Jogi Ram, the other attesting witness. Thus, the question of his being present at the time of execution of the will by the testator stands disproved. No doubt, Pirthvi Singh son of Jogi Ram has been produced to identify signatures of Jogi Ram. He has identified the signatures but he is unable to corroborate as to whether the will was executed and thumb marked by Hari Singh in the presence of Jogi Ram. Thus, the essential ingredient that the testator must affixed his signatures/thumb impression upon the will in the presence of the attesting witness stands belied. Thus, the courts have come to a correct conclusion in holding that the will has not been duly proved by the witnesses produced before the trial court.
13. Learned counsel has also placed reliance upon a judgment of the Apex Court rendered in re: Bhagwan Kaur v. Kartar Kaur, 1994(5) S.C.C. 135. The apex Court has held that unequal distribution of the property is also one of the circumstances which may corroborate suspicion in respect of the will. In the case at hand, it has been stated categorically, by one of the living attesting witnesses that the will was scribed by the petition writer under the instructions of Yad Ram, one of beneficiaries of the will. This fact has not been demolished by the defendants-appellants. None of the witnesses produced by the contesting defendants had denied the thumb impression of Narain Singh one of the attesting witness. The plea has been taken that Narain Singh became inimical to the family of Hari Singh, if this plea is taken to its logical conclusion then Narain Singh should have deposed in favour of the contesting defendants and not in favour of the daughters of Hari Singh. It looks that he has stated the truth which remains un-demolished by any cogent piece of evidence brought-forth by the contesting defendant-appellants.
14. Learned counsel for the plaintiff-respondent has further argued that the factum of possession of the property detailed in para 5 of the plaint has been held to be that of Hari Singh so far as his own half share is concerned. This fact stands corroborated from
the revenue record produced on the court file Exs.P2 to P15. No doubt, the mutation has
been sanction by the revenue authorities relying upon the judgments of this Court rendered in re: Smt. Gurdev Kaur v. Sucha Singh and Ors., 1975 P.L.J. 91 and Ranjit
Singh and Ors. v. Smt. Bhagwanti and Ors. 1975 P.L.J. 359. The perusal of the order dated 4.11.1976, passed by the Assistant Collector, 1st Grade shows that he has left
the question in regard to the will open to be decided by the civil court. Resultantly, the
mutation has been sanctioned in favour of the beneficiaries of the will. Since the finding
on the issue relating to the will has been returned in favour of the plaintiff, it shall be
open to the plaintiff to seek necessary correction in the revenue records accordingly.