Charan Singh another vs Balwant Singh and others

Muni Lal Verma, J.—The suit which culminated in this appeal and Regular Second Appeal Mo. 693 of 1969, was instituted by Charan Singh, Shrimati Sowarno, the appellants ; and Makhan Singh respondent for possession of two-thirds of the land measuring 267 kanals 15 marlas situate within the limits of village Kalair Kalan, Tehsil and District Gurdaspur, described in the heading of the plaint (hereinafter called the land), on the basis of title. The following pedigree table would be helpful in understanding the case of the parties :

Land once held by Ishar Singh, measured 500 kanals 3 mafias. It included the suit land. Ishar Singh alienated about 233 kanals out of the aforesaid and during his lifetime but continued to be owner of the land till his death Both his sons-Narinjan Singh and Teja Singh, and daughter-Budho had predeceased him. He died on 20th November, 1965 leading behind the laud. Therefore, Charan Singh and Shrimati Sowarno claiming to be son and daughter, respectively, of the predeceased son (Narinjan Singh) and Makhan Singh claiming himself to be the son of the predeceased daughter (Shrimati Budho) of Ishar Singh sought, through the suit, possession of two-thirds of the land. They averred that Balwant Singh and Surain Singh who are sons of the predeceased son (Teja Singh) of Ishar Singh were entitled to one-third of the land, but they were in illegal possession of whole of the land representing that Ishar Singh had bequeathed it (the land) in their favour. The will alleged by them (Balwant Singh and Surain Singh) to have been executed by Ishar Singh in their favour, was impeached on the allegation that it had not been executed by him (Ishar Singh) and was a forged instrument. In the alternative, it was alleged that Ishar Singh was not of sound disposing mind when he executed the alleged will and it was not valid because it related to the land which was ancestral qua them (the appellants, Makhan Singh) and Ishar Singh and they were governed by custom in matters of alienation which prohibited the disposition of ancestral property by means of will or gift.

Balwant Singh and Surain Singh contested the suit. They admitted the pedigree-table given above as well as the death of Ishar Singh and also that he was owner of the land at the time of his death. They controverted the other material allegations of the appellants and pleaded, inter alia, that in the year 1958, Ishar Singh had gifted land measuring about 1 IS kanals to Charan Singh appellant and had also given an equal area of land by means of gift to them, and that Ishar Singh had made a will bequeathing the land in their favour on 1st August, 1963 and had deposited the same with the Registrar Gurdaspur, and it (the will) was natural, genuine and a said and it was on the basis of the said will that they were in possession of the land, out of which, an area of 128 kanals was unencumbered. At a later stage, Balwant Singh and Surain Singh amended their written statement and raised the plea that Ishar Singh had also executed will on 26th December, 1958 whereby he had given only 1/11th of the land to Charan Singh and the other land had been given to them or to their wives and, in case, will doted 1st August, 1953 was not recognised, Charan Singh, out of the appellants, was entitled to 1/11th of the land and neither Shrimati Sowarnomor Makhan Singh was entitled to any portion of the land on account of the will dated 26th December, 1958. Hence, the suit was tried on the following issues :

Whether Shri Ishar Singh deceased owner of the suit land made any valid will dated 1st August 1963 bequeathing his entire property including the suit land in favour of the defendants and whether the defendants are entitled to remain in possession of the suit land as owners to the exclusion of the plaintiffs on that account ? O. P. D.

In case the execution or validity of the aforesaid will dated 1st August, 1963 is not proved, whether Shri Ishar Singh made any valid will dated 26th December, 1958 in respect of his property including the property dispute and whether according to the said will the plaintiff No. 1 cannot claim (sic) than 1/11th share in the estate of Shri Ishar Singh deceased ? O. P. D.

Whether the suit land is ancestral of Shri Ishar Singh deceased qua the plaintiff ? OPP.

Whether the plaintiffs Nos. 2 and 3 have locus standi to challenge the validity of the aforesaid wills even if the suit land is proved to be ancestral of Shri Ishar Singh deceased, qua the plaintiffs ? O.P.P.

Whether the alienation of his entire ancestral immoveable land could be made validly by Shri Ishar Singh deceased by means of a will in lieu of services according to Customary Law of Punjab ? O.P.D.

In case both the wills said to have been executed by Shri Ishar Singh deceased are held to be invalid ones whether the plaintiffs would be entitled to possession of 2/3rd share of the entire suit land ? O.P.P.

Relief

The trial court decided issue Nos. 1, 3, 4 and 5 in the negative and it answered issue No. 6 in favour of the plaintiff-appellants. But finding issue No. 2 in the affirmative, it granted decree for possession of 1/11th of the land to Charan Singh only. The suit respecting the other land or of the other plaintiffs was dismissed and the parties were left to bear their own costs Dissatisfied with the said result, Charan Singh, Shrimati Sowarno and Makhan Singh carried appeal to the District Court, Gurdaspur. It was registered at No. 103/165 of 1968. Balwant Singh and Surain Singh had also preferred appeal against the judgment and decree of the trial court and it was registered at No. 105/164 of 1968 in the lower Appellate Court. The lower Appellate Court decided both these appeals by one judgment. It allowed appeal No. 105/164 of 1968 preferred by Balwant Singh and Surain Singh and sitting aside the judgment and decree of the trial Court, dismissed the suit with costs throughout. The appeal No. 03/165 of 1968 preferred by Charan Singh and others was dismissed with costs throughout. Therefore, both these second appeals Nos. 692 and 693 of 1969 have been preferred by Charan Singh and Shrimati Sowarno to this Court, Since both the appeals have arisen out of one case and common questions of law and fact are involved therein, the same are being disposed of by one judgment.

The lower Appellate Court, disagreeing with the trial court, found that will (Exhibit D. 4) was duly executed by Ishar Singh On 1st August, 1963 and it was his last and genuine will and decided issue No. 1 in the affirmative. Shri V.G. Dogra, Learned Counsel for the appellants, therefore, challenged the aforesaid finding of the lower Appellate Court on issue No. (sic) and argued that, firstly, it was not proved that the said will (Exhibit D. 4) had, in fact, been executed by Ishar Singh and, secondly, it could not be regarded as valid because it was not shown that Ishar Singh possessed-sound and disposing mind when he executed it. He advanced four reasons : (i) that will Exhibit D. 12 executed by Ishar Singh on 26th December, 1958 had been suppressed and no reference about it had been made in the will (Exhibit D. 4) which was executed by Ishar Singh on 1st August, 1963 ; (2) that the will (Exhibit D. 4) was not registered and, as such, it (will, Exhibit D. 4) had been kept secret; (3) that no co-villager of Ishar Singh had attested the will (Exhibit D. 4); and (4) the Ishar Singh was aged 80 or 90 years at the time of execution of the will, in support of his second contention that the will (D. 4) could not be accepted as valid.

Gian Chand (D.W. 4) is the scribe and Teja Singh (D.W. 5) and Ranja Singh (D.W. 6) are the attesting witnesses of will (Exhibit D. 4). The other attesting witness, viz. Budha Mal, of the will, had died. Gian Chand, Teja Singh and Ranja Singh have Unanimously deposed that Ishar Singh had duly executed the will (Exhibit D. 4), and it was attested by Teja Singh, Ranja Singh and Budha Mal. It is clear from their depositions that all the formalities with regard to execution of the will (Exhibit D. 4) were duly observed. There is nothing on record to show that these witnesses or any one of them had any motive or cause to make false statement. Barring a few minor discrepancies which are likely to occur in the statements of truthful witnesses, for instance, with regard to the manner in which the attesting witnesses had met Ishar Singh at Gurdaspur and the fact stated by Ranja Singh that Ishar Singh had given some paper with writing on it, to Gian Chand, in their statements nothing was shown for doubting the veracity of the aforesaid witnesses. The lower Appellate Court duly considered the said discrepancies in the statements of these witnesses, now pointed out, and after scrutinizing their evidence in the circumstances of the case, accepted their testimony. So, I see no reason to disbelieve them. It is, therefore, evident that due execution of the will (Exhibit D. 4) by Ishar Singh has been established by the sworn testimony of the aforesaid witnesses which is unimpeachable and reliable. As a general rule, until the contrary is established, a testator is presumed to be J sane and to have mental capacity to make a valid will. Accordingly, where a testamentary writing is rational on its face, legal in form, and it is shown to have been duly executed, the presumption of testamentary capacity arises. The said presumption obtains over the entire process of the execution of the will on the absence of credible evidence to the contrary. A testamentary deposition of property is usually not consistent with the ordinary course of succession. Therefore, any departure from the usual course of succession in which a person prompted by ordinary instincts and natural impulsions, would have his property go, is presumed to have been made by the testator because of reasons rationally conceived, which are satisfactory to him. No presumption of testamentary incapacity is permissible by the mere fact that the testator was advanced in years. Therefore, the mere circumstances that Ishar Singh was aged 80 years or slightly more when he made the will (Exhibit D. 4) is insufficient for contending that he lacked testamentary capacity when he executed it. The intention and mind of a testator can be gathered from the language and the provisions made by him in the will. The bare reading of the will (Exhibit D.4) reveals that Ishar Singh fully know that he had a daughter (Shrimati Budho) and three grandsons and a grand-daughter. He knew that Budho had died, and Balwant Singh and Surain Singh, respondents were sons of Teja Singh, and that Charan Singh appellant and Shrimati Sowarno were the son and daughter of Narinjan Singh and their mother Shrimati Taro was alive. He knew, and stated in the will (Exhibit D. 4) that he had already given one third of his land to the issue (viz. Charan Singh) of Narinjan Singh and had also gifted one-third of his land to Balwant Singh and Surain Singh. He indicated his intention to disinherit Shrimati Budho as well as the appellants from succeeding to one-third of the land kept by him by stating in the will (Exhibit D. 4) that he had already given sufficient ornaments and cash etc. to Shrimati Budho and that Narinjan Singh, the father of the appellants, had been harassing him and Shrimati Taro, the mother of the appellants, did not attend to him and had, on the other hand, been harassing him. He further stated in the will (Exhibit D.4) that Balwant Singh and Surain Singh had been rendering services to him, had been attending to him during his illness, had been looking after his needs and that he had been very happy with them. Therefore, the will (Exhibit D. 4), on the face of it, sounds natural and the reasons given by him for bequeathing the land kept by him in favour of Balwant Singh and Surain Singh in preference to the appellants are rational. It is pertinent to note that on 7th July, 1958, Ishar Singh had executed three gift deeds. By means of registered deed (Exhibit P. 3), he gave 117 kanals 7 marlas out of his land to Charan Singh, by means of gift deed (Exhibit D. 5) he gave land measuring 57 kanals 19 marlas to Surain Singh respondent while by means of gift deed (Exhibit D. 6) he had given land measuring 60 kanals 18 marlas to Balwant Singh, it would show that the area of the land then given by him to Balwant Singh and Surain Singh was equal to the area of land given by him to Charan Singh. Thereafter, on 26th December, 1958, Ishar Singh had executed and registered the will (Exhibit D. 12), wherein he had stated that Balwant Singh and Surain Singh, respondents, would be entitled to 21/23 and Charan Singh appellant would be entitled to 3/33 while wives of Balwant Singh and Surain Singh would be entitled to 9/33 of the land which had been kept by him after making the aforesaid gifts. Naturally, in the year 1963, when he wanted to make another will (Exhibit D. 4) whereby he wanted, to bequeath whole of the land, held by him, in favour of Balwant Singh and Surain Singh and did not want to pass over any share in the said land to Charan Singh appellants or to the wives of Balwant Singh and Surain Singh, he could think of observing secrecy respecting the said will (Exhibit D. 4). It appears that it was under the impulsion that Ishar Singh wanted that Charan Singh appellant or the wives of Balwant Singh and Surain Singh should not know that he was making another will depriving them of the shares in the land which he intended to give to them when he made the will (Exhibit D. 12), that he decided to keep the will (Exhibit D. 4) secret and to deposit it with the Registrar, Gurdaspur, rather than to got it registered openly. It was for this reason that he could have decided not to take any co-villager to Gurdaspur for getting the will attested. Part IX of the Indian Registration Act contains provisions for the deposit of wills. Therefore, the act of Ishar Singh in depositing the will (Exhibit D. 4) with the Registrar was in accordance with Jaw and cannot afford a ground for contending that the will (Exhibit D. 4) was not genuine or that he (Ishar Singh) did not have sound disposing mind when he executed it. Similarly, the circumstances that Ishar Singh did not make any reference to will (Exhibit D. 12) in the will (Exhibit D. 4) cannot, in my opinion, be a ground much less just, for suspecting the genuineness of the said will (Exhibit D. 4). Will (Exhibit D 4) was executed on the 1st August, 1963 and it was 27 days later i.e. on the 28th August, 1963, when it was deposited with the Registrar Gurdaspur. Therefore, there was ample time for Ishar Singh to give thought to the contents of will (Exhibit D. 4) and to consider the cons sequences of the bequeath which he was making. It, thus, follows from the discussion above that there is no force in the contentions raised by the Learned Counsel for the appellants and the finding of the lower appellate Court on issue No. 1 is unimpeachable. As soon as it is held, as I do, that will (Exhibit D. 4) was duly executed by Ishar Singh with sound disposing mind and it is genuine and it is his last will, it must'' prevail. So, the succession to the land left behind by Ishar Singh has to be determined by the said will (Exhibit D. 4) and, as such, Balwant Singh and Surain Singh, respondents, had become owners of the land on account of the said will. The findings recorded by the Courts below on the other issues have not been assailed before me, and I do not find any defect therein.

In the result, I find that this appeal and Regular Second Appeal'' No. 693 of 1969 are bereft of any merit and the lower Appellate Court was right in non-suiting the appellants. Consequently, I maintaining the judgment and decree of the lower Appellate Court, dismiss this appeal as well as Regular Second Appeal No. 693 of 1969, with costs.