Biru Ram vs Barkha Ram

R.L. Anand, J.—Unsuccessful Plaintiff Biru Ram has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 22.1.1979 passed by the Court of Sh. A.S. Garg, Additional District Judge, Ambala who affirmed the judgment and decree dated 31.8.1978 passed by the Court of Sub Judge Ist Class, Ambala, who dismissed the suit of the Plaintiff-Appellant Biru Ram aforesaid.

The brief facts of the case are that Biru Ram Plaintiff filed a suit for possession and claimed agricultural land measuring 21 Kanals 9 Marias besides a portion to the extent of 2/3rd share in Bara situated in village Bharoli on the ground that the property as such belonged to his brother Dhania deceased was ancestral in nature and the will purported to have been obtained by is nephew i.e. Defendant Barkha Ram on 10.6.1963 was illegal, void and ineffective and as such the Will could not be executed pertaining to ancestral property which could not be alienated by the prevalent customary law of the agriculturists by which the parties were governed and therefore, the mutation obtained in pursuance of the will on 21.2.1975 stealthily by the Defendant was not binding upon the rights of the Plaintiff. With the above allegations the Plaintiff Biru Ram now deceased claimed possession of the agricultural land and Bara and residential house,

The said suit was contested by the Defendant on the averments that the testator and the parties to the suit were not governed by any custom. The property in the hands of deceased Dhania was not ancestral and he executed the will with his free will and in sound and disposing mind on 10.6.1963. The will was duly registered in favour of the Defendant who was the nephew of the deceased. It was registered on the same day. Deceased Dhania died after 14 years of the execution of the will. The parties to the suit and the deceased are carpenters by birth and occupation. They are not governed by custom and in these circumstances the execution of the will by Dhania was not permitted by law. Respondent is the son of Badhawa who was the real brother of Dhania and Plaintiff Biru Ram. The deceased was issueless and unmarried. The Respondent was serving him and he used to look after him and in lieu of the service rendered by the Respondent the deceased executed the Will in his favour. The will is binding upon the Plaintiff-Appellant.

For the above pleadings of the parties, the learned trial Court framed the following issues:

Whether the land in dispute was ancestral property qua Plaintiff in the hands of Dhania deceased as alleged and its effect?

1-A. Whether the parties are governed by custom in matters of alienation and succession. If so, what that custom was and to what effect?

Whether Dhania executed any valid will bequeathing land in dispute to the Defendants alleged and its effect?

Relief.

The parties led oral and documentary evidence in support of their case and after conclusion of the proceedings it was held by the trial Court that the property in suit was ancestral property vis-a-vis the Plaintiff in the hands of Dhania deceased. Resultantly, issue No. 1 was decided in favour of the Plaintiff and against the Defendant. Issue No. 1-A was decided against the Plaintiff and it was held that the parties were carpenters (Tarkhan)/Goldsmith (Lohar) and they were not governed by custom as alleged by the Plaintiff in the matter of alienation. Issue No. 2 was also decided against the Plaintiff and it was held that Dhania executed valid will bequeathing the property in dispute in favour of the Defendant and finally the suit was dismissed by the trial Court.

The Plaintiff filed the first appeal which was also dismissed vide impugned judgment and decree dated 22.1.1979 and aggrieved by the judgment and decree the present appeal.

I have heard Shri Sursh Amba, Advocate, on behalf of the Appellants and Shri S.K. Goyal, Advocate, on behalf of the Respondent and with their assistance have gone through the record of this case.

The first contention which was raised by the learned Counsel for the Appellants is that under Issue No. 1 it has already been held by the Courts below that property in the hands of Dhania was ancestral and that since the parties were governed by customary law in the matters of alienation and succession, therefore, Dhania could not execute the will in favour of Defendant against the rights of the Plaintiff Biru who was the real brother of Dhania. On the contrary it was argued by the learned Counsel for the Respondent that though the courts below held under issue No. 1 that property in the hands of Dhania was ancestral but he submitted that Respondent can still challenge the findings of the Courts below by showing that the character of the property ceases to be ancestral because Dhania was unmarried and issueless. He had no male issue and in this manner, the property in the hands of Dhania became his personal property and he could bequeath and transfer the same in the manner he liked. The learned Counsel for the Respondent also submitted that there is a concurrent findings of the courts below on the question of custom and it has been held by the Court below that parties to the suit were Tarkhan/Lohar and they were not governed by any customary law in the matter of succession and in this manner Dhania was not a limited owner of the property in question. The first contention raised by the learned Counsel for the Appellants is devoid of any merit. It was the specific case of the Plaintiff-Appellant that the parties to the suit were governed by custom. No general or special custom had been proved by the Plaintiff. The only evidence which has been led by the Plaintiff is to the effect that the property in the hands of Dhania was ancestral and it could not be bequeathed by way of will, There is no evidence on record to show that from two communities of Tarkhan/Lohar, the proprietors of the village are installed or that the source of livelihood of these communities was based on agriculture. Rather the evidence which has been led by the Plaintiff would show that it is the categorical stand of the parties that the parties to the suit are Tarkhans which is not an agricultural community of Punjab as, rightly held by the first Appellate Court in para No. 9 of judgment in light of the authority of 147 IC 1934 361 Mst. Viro v. Waryam Singh. Admittedly, Dhania had no issue. No doubt at one point of time, the property was in the name of Mehtab who had three sons Badhawa, Dhania and Biru. The character of the property ceases to be ancestral in the hands of Dhania when he had no male issue and in this manner Dhania was competent to bequeath the property in the manner he liked. In 147 I C 1934 361 Mst. Viro v. Waryam Singh (supra) it has been held that Tarkhans of village Chattiana, Tehsil Muktsar, District Ferozepur are not governed by customary law but they follow their personal law. It was also held that a presumption that parties follow the Customary Law in matters of alienations only arises in the case of agricultural classes and Tarkhans are not an agricultural class. The burden of proving that they follow the Customary Law is on the persons challenging an alienation as being prohibited by Customary Law." It was for the Plaintiff to establish that the parties to the suit were governed by the customary law of the place where they use to reside and in the absence of any proof it has to be held that the parties to the suit were governed by their personal law. There is no satisfactory evidence that at any point of time the parties to the suit or their fore-fathers were agriculturists or that they subsequently adopted the profession of carpentry. Thus I affirm the findings of the trial Court on issue No. 1 and hold that the parties to the suit were not governed by custom nor they were agriculturists. Rather they were Tarkhans governed by their personal law.

Learned Counsel for the Appellants then attacked the findings of the Courts below on issue No. 2 and slated that the will is surrounded by suspicious circumstances as the beneficiary took effective steps in the execution of the will and it was he who took the deceased to the scribe. In these circumstances the Respondent-defendant prevailed upon the independent mind of the testator who according to the learned Counsel for the Appellants was not in a sound and disposing mind. He submitted that the will is surrounded by suspicious circumstances which have not been successfully removed by the Defendant-Respondent. He further submitted that no witness from the village of the deceased was called upon to attest the will. The last rites were also performed by the Appellant and the story propounded by the Defendant was unbelievable. On the contrary, it was submitted by the counsel for the Respondent that the Defendant was the real nephew of the deceased who was bachelor and issueless. It was the Defendant who had been serving him. The land of the deceased was being managed by the Defendant. The will is a registered document which prima facie shows that the deceased was in sound and disposing mind. After the execution of the will, the deceased survived for about 13 years as he died in the year 1975 while Ex.D.1 was scribed and registered on 10.6.1963 which again shows that deceased wanted to execute the will in favour of the Defendant in lieu of the services rendered by the latter. The Plaintiff did not serve the deceased. Moreover, the last rites were also performed by the Defendant and the will is not surrounded by any suspicious circumstances. After considering the rival submissions raised by the learned Counsel for the parties, I am of the considered view that the will is not surrounded by any suspicious circumstances and in this regard I would like to refer to the authorities. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , in which it has been that initially burden is always on the pro-pounder to show that the will is not surrounded by any suspicious circumstances. But once those suspicious circumstances have been removed, the will especially registered will which is last wish of a testator should not be disturbed and such a fair document should not be seen with suspicion which is not the spirit of the law." In the present case the will has been proved by the statement of Jagat Ram. He is not related with the Respondent-defendant. He was not personally interested in the Defendant Rather this witness was personally known to the testator. He has supported the stand of the Defendant that the deceased Dhania executed the will when he was sound and disposing mind. Non examination of the other attesting witness Matu Ram is not fatal. It was the Respondent who was serving the deceased which is amply proved on the record. The registration of the will itself suggests that it was executed in sound and disposing mind by the deceased. There is no satisfactory evidence led by the Appellant to show that the deceased was of unsound mind. There is evidence on record that testator used to reside with the Respondent since long. Mere presence of beneficiary at the time of the execution of the will is no ground to hold that he prevailed upon the will of the testator as held in Naranjan Singh v. Mst. Dipo and Ors. 1976 P.L.J. 523. It has been held in Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another, that "It is for the propounder of the will to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged". In the present case all the above ingredients have been duly proved. The Plaintiffs have not led any satisfactory evidence to show that the Defendant ever prevailed upon the will of the testator. Also it was held in Kishan Singh v. Nachhattar Singh and Ors. (sic) R.L.R. 341 that genuineness of a will should not be doubted by the mere fact that propounder of will was present at that time of its execution. Thus I again affirm the findings of the Courts below on issue No. 2.

No other point was urged before me.

Resultantly, this appeal is devoid of any merit and the same is hereby dismissed with no order as to costs.