Bhagwan Kaur and Another vs Chetan Singh and Others

This is plaintiffs'' second appeal whose suit for joint possession was decreed by the trial Court, but was dismissed in appeal.

Amar Singh was the owner of the suit property. He died on May 8, 1986. During his lifetime, he married twice. First marriage was with Shrimati Harnam Kaur. He had three sons and two daughters from her. After the death of Harnam Kaur. Amar Singh married Shrimati Bhagwan Kaur. From her, he had a daughter Gurmit Kaur. On Feb., 5, 1966, Amar Singh made a will, Exhibit D-1, in favour of his three sons, who were born out of the marriage with Harnam Kaur. In the will, no immovable property as such was given to the widow Bhagwan Kaur or her daughter Gurmit Kaur, but, however, a provision was made for her maintenance. Bhagwan Kaur and her daughter Gurmit Kaur filed the present suit on Oct., 25, 1972 for joint possession to the extent of 2/7th share of the suit property left. behind by Amar Singh According to the plaintiffs earlier the defendants have been giving the produce to them, but now have refused to do so on the plea that defendants 1 to 3 are the exclusive owners of the suit land According to the plaintiffs, the entries in the revenue record about the ownership of these defendants have been made on the basis of a will, which is a forged one. Defendants 6 to 10 were made parties to the suit being transferees of a part of the land after the death of Amar Singh. The suit was contested on behalf of the legatees. They admitted the ownership of Amar Singh over the suit land. They pleaded that they are the. sole owners of the land on the basis of a valid will executed by Amar Singh during his lifetime in their favour. According to the defendants, on the basis of the said will, mutations in all the three villages were duly sanctioned in their favour. The main contest between the parties during the trial was as to whether Amar Singh executed a valid will in favour of defendants 1 to 3 or not. The trial Court came to the conclusion that from the evidence of the defendants it is no: proved that Amar Singh executed a valid will in their favour. Rather, it is proved that there was no occasion to write the will in favour of the defendants and depriving the plaintiffs from their share. As a result of this finding, the plaintiffs'' suit was decreed. In appeal, the learned Additional District Judge reversed the said finding of the trial Court and came to the conclusion that the will, Exhibit D-l, is a most natural document executed by Amar Singh. Provisions have been made for both the plaintiffs therein. Even the two daughters of Amar Singh, deceased, accepted the same. The mutations were sanctioned on the basis of the said will vide copies, Exhibits D-16, D-17 and D-18 and, thus, from all the facts and circumstances of the case, it goes to show that the will was a genuine one. Consequently, the plaintiffs'' suit was dismissed.

During the pendency of this appeal, vide order dt. Sept. 24, 1981, the plaintiffs were allowed a sum of Rs. 5,000/- per annum as maintenance during the pendency of this appeal However, when the said amount was not being paid as directed, Civil Misc. No. 1622-C of 1987 was moved on behalf of the plaintiffs-appellants. Notice of this application was given to the opposite side. Thereupon a sum of Rs. 39,600/- was deposited by them vide challan dt. June 1, 1987. After the said payment was made, this appeal came up for hearing.

The learned counsel fur the plaintiff appellants submitted that the trial Court rightly found that the defendants failed to prove that Amar Singh executed a valid will in favour of the defendants, but this finding has been upset in appeal arbitrarily on surmises and conjectures. According to the learned counsel, the two attesting witnesses, Bhag Singh, D.W. 2, and Karnail Singh, D.W. 3, produced by the defendants, did not belong to the village of Amar Singh, deceased and were otherwise interested in the defendants and therefore, their testimony could not be accepted. The testimony of D.W. 1 Nauhria Ram, the scribe of the will, could also be not believed because he did not know the deceased Amar Singh personally. In any case, argued the learned counsel, the will was shrouded by suspicious circumstances. It was further submitted that in the written statement, the defendants have pleaded that the will was registered one whereas it was an unregistered document: Moreover, the will was produced. after filing the written statement without any explanation as to why the same could not be produced earlier. According to the learned counsel, there was a spacing in the will and since the widow and the daughter were excluded and no cogent explanation was given therein, the will could not be accepted to be a valid document. He referred to a Supreme Court judgment reported in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, to contend that where the execution of the will. is shrouded by suspicious circumstances, it stands on a different footing. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the Court, the propounder. must remove all legitimate suspicions before the document can be accepted as the last will of the testator. On the other hand the learned counsel for the defendants-respondents submitted that the will was produced at the earliest before the Revenue Officer on the basis of which mutations were sanctioned in their favour. The will produced before the Revenue Officer bears his signatures dt. Apr., 23, 1970. Thus argued the learned counsel, the question of late production of the will during the pendency of the suit, was of no consequence. He also referred to an order of the Collector, Exhibit D-19, whereby the appeal filed by the plaintiff Bhagwan Kaur, was dismissed in default. According to the learned counsel, the will was duly proved. Even Ujagar Singh. P.W. 5, admitted that Exhibit D-l bears the signatures of Amar Singh, deceased. P. W. 4 Kartar Singh also admitted that Amar Singh was in a good health before his death. Thus argued the learned counsel, the will was a most genuine document. In the will itself, it was provided that the widow will be entitled to the maintenance and it will be the duty of the three sons, i.e. the defendants to see that ah the necessary facilities are provided to her. According to the learned counsel, the so called suspicious circumstances have been duly explained and, therefore, the findings of the lower appellate Court on this behalf could not be interfered with in Second Appeal.

After hearing the learned counsel for the parties and going through the relevant evidence on the record, I do not find any merit in this appeal. Admittedly no male child was born after the marriage of Amar Singh with Bhagwan Kaur. plaintiff. He had three sons from his first wife Harnam Kaur. He had two daughters also from Harnam Kaur. but the will was made only in favour of his three sons. Thus, on the facts and circumstances of the case, it could not be successfully argued on behalf of the plaintiffs that the will was not a genuine document. Moreover, provision for the maintenance of Bhagwan Kaur has been made in the will itself. She filed the present suit on Oct., 25, 1972 i.e. more than six years after the death of her husband Amar Singh It appears that during this period either the was being maintained by the defendants or at least there was no grievance to her on his account because the mutations with respect to the estate of Amar Singh had already been sanctioned on the basis of the aid will in favour of defendants 1 to 3. All the alleged suspicious circumstances taken into consideration by the trial court were discussed by the appellate Court and have been repelled with the observation that "after looking at he will I do hot find that any such suspicion arises on the face of the will". He further found that "I have gone through the contents of the will. In this will the property has been given to all the three sons excluding the married daughters. The plaintiffs are given the movable property. The defendants are burdened with the liabilities to maintain Bhagwan Kaur properly. The marriage expenses of Gurmit Kaur plaintiff are to be borne by the defendants. This will is a most natural will executed by Amar Singh. Provisions have been ma for all the plaintiffs. This will is accepted by two of the daughters of Amar Singh deceased". All this goes to show that no fault could be found as regards the validity of the will, Exhibit D-1. In this view of the matter, the plaintiffs'' suit for joint possession is liable to be dismissed.

Now the question remains that since in the will itself, on the strength of which the defendants have succeeded to the suit property, it has been provided that "it will be the duty of my three sons that after my death Shrimati Bhagwan Kaur is provided all the facilities for her residence, food and clothing etc." What relief could be granted to the plaintiffs in the present suit. It is no more disputed that Gurmit Kaur, plaintiff 2, has already been married. Admittedly, the plaintiff Bhagwan Kaur is entitled to maintenance.

Section 39 of the Specific Relief Act provides as to when the mandatory injunction can be granted in its discretion by the Court. It reads thus :

"39. Mandatory injunctions :-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."

It is therefore, evident that in order to prevent the defendants from the breach of the said obligation. of providing maintenance to the plaintiff Shrimati Bhagwan Kaur. and also to compel its performance a mandatory decree directing defendants 1 to 3 for paying maintenance regularly is the only proper and just remedy/ relief which the plaintiff Bhagwan Kaur is entitled in the present suit. Only such like decree for mandatory injunction can compel the defendants for its performance as the same is executable under O. 21, R. 32, Civil P.C., where it can be enforced by detention in the civil prison as well.

As regards the amount of maintenance, during the pendency of this appeal, the total income of the land was assessed to be Rs. 63,000/- per annum in the year 1981. The share of the appellants being 2/7th, was determined to be Rs. 18,000/- and ultimately this Court allowed a sum of Rs. 5,000/- on account of maintenance during the pendency of this appeal. Thus, taking into consideration all the facts and circumstances of the case and the rise of the prices and the money value and the land which the defendants got under the will, the widow Smt. Bhagwan Kaur will be entitled to a sum of Rs. 1,000/- per month from the three defendants-legatees. who will be liable to pay the said sum jointly and severally. She will be entitled to this maintenance during her lifetime and thus amount will be a charge on the land owned and possessed by these defendants. For this purpose, an affidavit of Gurmit Singh son of Amar Singh, dt. 28th Sept., 1987, has been filed in this Court, in which it has been stated that according to the Jamabandi for the year 1985-86, attached therewith, defendants 1 to 3, are the owners of 223 Kanals 18 Marlas which corroborates with the heading (b) of the plaint wherein 227 Kanals have been shown in village Kherri. Thus, in view of the said affidavit, payment of the maintenance; shall be a charge on the said land.

The amount of maintenance will be paid to her half yearly, i.e. by the end of June and December every year. In other words, Rs. 9,000/- will be payable half yearly. Consequently, though the appeal fails and the decision of the Court below dismissing the plaintiffs'' suit for joint possession is upheld, but a decree for mandatory injunction directing respondents 1 to 3 for paying maintenance at the rate of Rs. 1500/- per month. payable half yearly, as stated earlier, is granted in favour of Bhagwan Kaur, plaintiff, with costs throughout. This amount of maintenance will be payable with effect from June 1, 1987, onwards. The total amount due up to Dec., 1987 will be paid by the end of Dec., 1987. However, an option is given to the said defendant-respondents that in case they deposit a sum of Rs. 1 lac in lump sum, their liability to pay the maintenance in future will no more be there from the date the said amount is deposited.

Order accordingly.