Bishan Singh vs Banta Singh

Harjit Singh Bedi, J. (Oral)

This is a defendant''s second appeal.

The plaintiffrespondents are the sister''s sons of Santa Singh deceased, whereas the defendantappellants are the sons of brother of the deceased. Santa Singh died some time between the year 1970 and 1974. The plaintiff respondents filed the present suit claiming half share of his property on the basis of inheritance. The defendantappellants filed the written statement and set up a Will dated 28.3.1962 allegedly executed by the deceased in their favour.

On the pleadings of the parties, the following issues were raised :

Whether plaintiffs are heirs of Santa Singh deceased ? OPP

Whether deceased Santa Singh executed valid Will in favour of defendant No. 1, 8 and 9 ? If so to what effect ? OPD

The trial Court found that the respondents were heirs of Santa Singh deceased but the Will allegedly executed by Santa Singh was not a valid document as it was surrounded by suspicious circumstances. The suit was accordingly decreed. The aggrieved defendants filed an appeal before the Additional District Judge, Gurdaspur, who confirmed the findings of the trial Court on both the issues and thereby dismissed the appeal. This appeal has arisen out of the above facts.

Mr. Suvir Sehgal, the learned counsel for the appellants has made a serious challenge to the findings on both the issues. He has arged that the respondents were not the heirs of Santa Singh deceased and, as such, were not entitled to maintain the suit on the basis of inheritance. This argument is misplaced for the reason that both the Courts below have on the basis of the evidence adduced by the parties given a categoric finding with regard to the relationship of the respondents with Santa Singh. Mr. Sehgal has, however, laid more emphasis on the fact that the will was a registered document and as it had been executed some 8 to 12 years before the death of the testator, it was to be relied upon. He has also urged that two suits had been filed by the respondents during the life time of the testator challenging execution of the Will thereby admitting its existence and though the suits were not maintainable as the testator was yet alive, they had nevertheless been compromised after Santa Singh though a party to one of the suits had not appeared though served. He has also urged that one of the plaintiffs'' witnesses Udham Singh had in fact admitted the execution of the Will and as such the appeal was liable to succeed on the basis of the evidence adduced by the parties. To my mind this argument is also without merit. The Courts below have found that the scribe as also one of the attesting witness of the Will had since died whereas the other attesting witness Hazara Singh was the brotherinlaw of the appellants. The Courts have also found that there was no occasion for this witness to have come to the village of the testator as their relations inter se were not congenial. The learned counsel for the appellants has also argued that Santa Singh had also executed a power of attorney dated 30th March, 1970 (Exh.D.W.4/A) in which the fact that he had executed the Will had also found mention. This document has also been rejected by the Courts below on the ground that one of the two attesting witnesses was Hazara Singh whereas the other attesting witness Mohinder Singh M.L.A. had met the executant just by chance. Mr. Sehgal''s argument that in the two suits filed by the respondents during the life time of Santa Singh testator the question as to the execution of the will had been raised proved its existence has also been taken as an adverse circumstance by the Courts below. It is really surprising indeed that Santa Singh''s property was disposed of by agreement between the parties ignoring the fact that he was still alive. The lower appellate Court has given a categoric finding that the fact that Santa Singh though a party to these suits had been deliberately withheld by the defendants therein as he would have given a statement adverse to their interest. It is also significant that after the death of Santa Singh the present appellants had filed Suit No. 201 of 1974 against the present respondents for a declaration in their favour on the basis of this Will. This suit was contested but vide order dated 23rd July, 1976 was eventually compromised by the parties. To me it appears therefore that it would not be open to the appellants to claim inheritance on the basis of that Will in these proceedings. Moreover, the Courts below have given very elaborate reasons as to why the Will was a suspicious document and could not be acted upon. In the light of the Supreme Court judgment in D. Pattabhiramasamy v. S. Hanynayya and others, AIR 1959 SC 57 and Deokali (Smt.) v. Nand Kishore and others, 1996(1) HLR 516 : 1996(2) RRR 678 (SC) no interference is called for in concurrent findings of fact in second appeal. Dismissed. No costs.