Chanchal Singh vs Rattan Kaur (deceased) through L.R's Charan Singh and Others

M.S. Liberhan, J.—Chanchal Singh Plaintiff filed a suit for declaration and consequential relief of injunction claiming title to 17 Kanals 6 Marias of land with share in well, under a registered Will dated 24.3.1969, executed by Dhanpat who died on 3.4.1972. In the alternative, decree for possession was prayed for. Smt. Rattan Kaur being widow of Dhanpat and Smt. Banti as his widowed sister was challenged.

The Defendants controverted the said allegations and challenged the validity of the will. It was averred that the widow and the widowed sister of Dhanpat had been living with him for the last forty years and were serving him. The Plaintiff was a total stranger and had never served the deceased. Possession of the Plaintiff was denied. The Defendants claimed their dependency for their maintenance on him. The pleadings of the parties gave rise to the following issues:

Whether Smt. Rattan Kaur Defendant is widow of Dhanpat deceased? O.P.D.

Whether Smt. Banti Defendant is not sister of Dhanpat deceased? O.P.P.

Whether Dhanpat deceased executed a will according to law in favour of the Plaintiff on 24.9.1969? O.P.P.

Whether Plaintiff is in possession of the suit property? O.P.P.

Whether the Plaintiff is estopped from filing the present suit? O.P.D.

If issue No. 3 is proved and issue No. 4 is proved, whether the Defendants are entitled to keep possession of the land in lieu of maintenance? O.P.D.

Relief.

The trial Court found that Smt. Rattan Kaur was not the widow of Dhanpat Singh though Smt. Banti was admittedly his widowed sister. The will was held to be valid and the Plaintiff was found to be in possession of the suit land. It was further held that there was no estoppel against the Plaintiff. Since the Defendants were not in possession of the rand, they were not entitled to it in lieu of maintenance. The suit for declaration with consequential relief of injunction was decreed.

The Defendant preferred an appeal. The lower appellate Court reversed the findings of the trial Court and found that the Defendant Smt. Rattan Kaur was the widow of the deceased, the will was an unnatural document because no reason had been given for disinheriting the widow and the widowed sister and additionally it being in favour of a stranger. Hence, the will being shrouded with suspicious circumstances, suspicion having not been explained or cleared, the will could not be acted upon. The Plaintiff was found to be out of possession. The appeal was accepted and the suit was dismissed.

The Plaintiff Appellant has impugned the judgment and decree of the lower appellate Court. It is contended that since there is no discussion with respect to the execution of the will nor any finding in respect of the same has been given, the judgment cannot be sustained. Challenging relationship of Rattan Kaur with the deceased, it is contended that the finding is based on inadmissible evidence. Alleged admissions by the witnesses before revenue authorities have been relied upon, without these having been put to the witnesses nor the same have been proved subsequently. The finding with regard to relationship of Smt. Rattan Kaur is vitiated. In support of his submission, the learned Counsel has relied upon Sita Ram Bhau Patil Vs. Ramchandra Nago Patil (Dead) by Lrs. and Another, and Tarsem Singh v. State AIR 1978 J & K 53.

It is stated that the registered will having been executed about three years prior to death and the thumb impressions of the testator on the will not disputed deprivation of the widowed sister and the widow is immaterial. The execution of the will having been proved, it has to be given effect, in spite of its disinheriting the widow and the widowed sister and relied upo Satya Pal Gopal Das Vs. Smt. Panchu Bala Dasi and Others, and Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others,

Learned Counsel for the Respondent has contended that the beneficiary being a stranger and the dependent widowed sister and widow having been ignored, the will is shrouded with suspicious circumstances and the same having not been explained, the will cannot be acted upon. It is unnatural disposition, no reasons having been given for depriving them. Had it been executed by the deceased he would have said something about the widowed sister etc. It has not been executed by the deceased and, therefore, it should not be acted upon.

He has also urged that the findings with respect to relationship of the deceased with the Defendant is a finding of fact. Further the suspicion with respect to the execution of the will with free mind too is a finding of fact and cannot be gone into in second appeal, in view of Section 100 of the CPC and relief upon Deity Pattabhiramaswamy v. S. Hanymayya and Ors. AIR 1959 S.C. 57; R. Ramachandran Ayyar Vs. Ramalingam Chettiar, and Bithal Das Khanna and Anr. v. Hafiz Abdul Hai 1969 S.C.N 481. In support of his contention.

I have heard the learned Counsel for the parties and have gone through the record. The execution of the will stands proved. The scribe and the two attesting witnesses have proved the due execution of the will in accordance with law. The thumb impression of the deceased as well as those of the attesting witnesses have not been challenged either in cross examination or before me. The Defendants in their written statement stated that the will was never executed with a free disposing mind and in full senses. In the alternative, plea of fraud misrepresentation and undue influence on the deceased was put forth. The statements of Krishan Kant Scribe, PW1, Mehar Singh PW2 and Sardara Singh PW3 read with the statements of Jinda Ram PW4 Joint Sub Registrar, Nakodar, have categorically proved the execution of the will by the deceased in his full senses and free mind. I find no reason to disbelieve their statements. The lower appellate Court even after reappraising the evidence had not returned a different finding although the Defendants were held to be the widow and widowed sister of the deceased. As they had been ignored, the will was held to be unnatural and as such it could not be acted upon. In view of my observation that the will has been proved to have been duly executed by the deceased with a free disposing mind and in full senses the reasonableness of the disposition of the estate or non-mention of reason for depriving the natural heirs should not detain us. A will in normal circumstances is executed to divert the ordinary succession for the reasons best known to the testator. The suspicion created by deprivation of the natural heir only requires that the evidence should be scrutinised more carefully. It does not invalidate the will.

The deceased executed the will on 24.9.1969 and died on 3.4.1972, i.e. more than 2-1/2 years thereafter. The will was got registered with the Sub Registrar. There is no allegation that either the attesting witnesses or the Sub Registrar was in collusion with the legatee. There is no evidence to the effect that the deceased was not in a disposing mind or there was any undue influence exercised upon him. The will being registered and not revoked for a long time, one of the reasonable inferences is that it is a legally and validly executed document. This found sup'' port from the decision of their Lordships of the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, , Labh Singh v. Major Singh and Ors. 1981 H.L.R. 119, and Satya Pal Gopal Dass''s case (supra). Even otherwise, on further closely scrutinising the statement of the widow herself who stated that they had a joint ration card and her marriage was recorded in a bahi, both the documents having been produced leads to an adverse inference against her. It may not be sufficient to hold that they were not married yet it casts doubt with respect to their relationship. So far as the widowed sister is concerned, she was not an heir in the ordinary course. The lower appellate Court has not adverted to the evidence, as well as the finding with respect to the execution of the will. The circumstances that the natural heirs have been deprived of the estate requires that the evidence be strictly scrutinised to the satisfaction of the conscience of the Court, it does not itself invalidate the will. I am fully satisfied after going through the statements of the witnesses that the will has been duly executed by the testator and there are no reasons for not giving effect to the same as his last wish.

Qua the finding of the lower appellate Court with respect to the relationship of the deceased with Smt. Rattan Kaur, no substantial error has been pointed out except that the widow has made a statement totally devoid of consistency which can be explained on account of her age as well as illiteracy and a reading of her statement makes clear her being simpleton and further under the stress of cross examination made such a statement. The relationship of the widowed sister and the deceased has not been challenged in either of the Court below. Consequently, 1 affirm the finding qua the relationship of the deceased with Smt. Rattan Kaur as his widow and Smt. Banti as widowed sister.

The judgment cited by the learned Counsel for the Respondents are not pari materia on facts of the present case. They are on their own facts.

The finding on issue No. 4, i.e., with respect to possession of the Appellants has not been challenged before me which is hereby affirmed. The Plaintiff is not proved to be in possession.

In view of my above observations, this appeal is accepted, the judgment and decree of the lower appellate Court are partly set aside and the suit of the Plaintiff is decreed for possession. The judgment and decree of the trial Court are modified to this extent. No order as to costs.