Chint Kaur alias Balwant Kaur vs Surjeet Singh and Others

H.S. Bedi, J.—This is a plaintiffs second appeal, which arises out of the following facts.

The plaintiff-appellant Chint Kaur filed a suit for possession of 65 kanals 1 marla of land against the defendant-respondents Surjit Singh and Ors., alleging. That the land belonged to her deceased husband Santokh Singh and-after his death, one year prior to the filing of the suit, the same had devolved upon her by inheritence but the defendant-respondents have taken possession illegally on the basis of a will that had been propounded by them. The suit was contested by the defendant respondents who claimed that Santokh Singh had executed a valid will Exhibit D1 in their favour on September 2,1972 and that they were in possession of the land on its basis. The trial court on a consideration of the evidence found that the will made by Santokh Singh was a valid one and accordingly dismissed the suit. Aggrieved thereby Chint Kaur took an appeal to the appellate Court and the appellate Court confirmed the finding recorded by the trial Court and held that the will in favour of the defendant-respondents was perfectly in order. For arriving at this conclusion the lower Appellate Court found that though the will was an unregistered one, yet it stood proved by the evidence of the scribe Sulakhan Singh DW1 and the two attesting witnesses Major Singh DW2 and Sohan Singh DW3. The lower Appellate Court also found that as per the evidence of Surjit Singh DW4, Chint Kaur had contracted a Karewa marriage with Santokh Singh about 6/7 years prior to his death and that at the time of his death Santokh Singh was about 100 years of age and, as such, it could not be said that the will was a defective one as the legatees were the grand-children of the first cousin of Santokh Singh who admittedly had no children of his own. The lower Appellate Court also found that though Santokh Singh had died 10/12 days after the execution of the will yet it was not the case of Chint Kaur who appeared as PW1 that Santokh Singh was not in senses at the time when he allegedly executed the will. Another circumstance which the lower Appellate Court took against the plaintiff-appellant was that as per the evidence of Sohan Singh DW3 she had been present at the time when the will had been executed and as such could not challenge its veracity at a later stage. The first appeal was accordingly dismissed. Aggrieved thereby the present appeal has been filed in this Court.

Mr. R.S. Mittal, the learned Senior Advocate, appearing in support of the appeal has pointed out various suspicious circumstances with respect to the execution of the will. He has first and foremost argued that as per the evidence of DW2 Major Singh, Chint Kaur plaintiff-appellant was not present in the house at the time when the will was executed, whereas this evidence stood contradicted by the evidence of DW3 Sohan Singh, the other attesting witness, He has further pointed out that Chint Kaur appellant had stated that Santokh Singh testator had been quite unwell before his death as he had been suffering from acute diarrhoea and that he had, in fact died of that problem and as such an inference could be drawn that on account of his advanced age and his illness he was incapacitated in making the will in question.

He has then argued that the will was an unnatural document and no substantial provision had been made for the widow (Chint Kaur) of Santokh Singh.

He has finally urged that even the evidence of Sulakhan Singh DW1, the scribe of the will, was not worthy of credence as the register maintained by him had not been page-marked and was not even properly bound.

I have heard the learned counsel for the appellant and considered the arguments raised by him. This matter would have to be examined in the light of the well settled principle that the jurisdiction of this Court in second appeal is somewhat circumscribed and it is not open for this court to interfere only on the presumption that a different view was possible on the evidence. Examining the matter from this angle and also from the fact that the evidence in my view supports the execution of the will, I am of the opinion that there is no merit in the appeal. It is the admitted case that Santokh Singh was about 100 years of age at the time of his death and the plaintiff-appellant Chint Kaur had been living with him on account of a karewa marriage contracted about 6/7 years before his death - meaning thereby when he was about 95 years of age. It has also come in evidence that Chint Kaur was about 65 years of age at the time when the evidence was recorded making her about 60 years of age at the time of her marriage with Santokh Singh. In this view of the matter it is not surprising that there was no deep affection that Santokh Singh could have borne towards Chint Kaur, his karewa wife and it is probable that he made a will in favour of his first cousin''s grand- children. It has also been admitted by Chint Kaur in her evidence that Santokh Singh was keeping good health till his death - the reference being that when the will was executed he was in his sound and disposing mind. The evidence of DW3 Sohan Singh is however to the effect that Chint Kaur was present in the house when the will was executed and if this statement was contradicted the evidence of Sulakhan Singh DW1, it was but natural for Sulakhan Singh, being a stranger, could not be expected to enter the house of Santokh Singh as the will was executed in the court-yard. To my mind, therefore, there is no contradiction between the statements of Sulakhan Singh DW1 and Sohan Singh DW3 with regard to the presence or Chint Kaur.

Mr. Mittal has also urged that as the Register maintained by Sulakhan Singh, the scribe DW1 had not been page-marked or bound, no value could be attached to that evidence or to the testimony of Sulakhan Singh. To my mind this argument is also without force. It is nobody''s case that Sulakhan Singh (DW1) was any way prevailed upon to make a fictitious will or that he was in any way interested in the beneficiary party. It is to be noted that Santokh Singh was about 100 years of age at the time when he executed the will and the anxiety of the relatives to ensure a proper succession on the basis of a will can therefore be appreciated, the more so, as he admittedly had no children of his own. I am, therefore, of the opinion that there is no merit in the appeal and the same stands dismissed.