Dayal Singh vs Atma Singh and Others

N.K. Kapoor, J.—This is Plaintiff''s regular second appeal.

The pedigree table of the family is given as under: One Bela Singh was blessed with three sons, namely, Atma Singh, Dayal Singh and Santa Singh. Santa Singh died during his lifetime and was succeeded by his widow Chanan Kaur Defendant No. 2. Atma Singh was blessed with two sons, namely Randhir Singh and Gurcharan Singh, Defendants Nos. 3 and 4 respectively. Dayal Singh filed a suit for declaration to the effect that Plaintiff and Defendant Atma Singh are owners and in possession of the properly as detailed in the plaint and for permanent injuction restraining defendents No. 3 and 4 from interfering with their possession or forcibly dispossessing them from the property in dispute. The Plaintiffs claim to the property left by Bela Singh is on the basis of Win dated 28.10.1958.

Defendants No. 3 and 4, Randhir Singh and Gurcharan Singh, sons of Atma Singh filed written statement wherein they admitted the contents of Will dated 28.10.1958 but further alleged that in view of the later will executed by Bela Singh on 31.1.1963 the earlier Will stands revoked and so the Plaintiff has no right in the suit property. Smt. Chanan Kaur Defendant No. 2 in her statement while admitting the contents of Will dated 29.10.1988 claimed that she is entitled to maintenance from Plaintiff as well as Defendant No. 1. According to Defendant No. 2, her right is even protected in the later will.

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

Whether Bela Singh deceased executed a valid Will in favour of the Plaintiff and Defendant No. 1, if so, to what effect? OPP

Whether Bela Singh deceased executed a valid Will in favour of Defendants Nos. 3 and 4. ? If so to what effect? OPD (3-4)

Relief

Issue No. 1 was decided in favour of the Plaintiff holding that Bela Singh executed a valid will on 28.10.1958. Under issue No. 2, the Court came to the conclusion that the later will executed by Bela Singh supersedes the earlier Will and so decided this issue in favour of Defendants No. 3 and 4. Consequently, the suit of the Plaintiff was dismissed.

Before the lower appellate Court the finding recorded by the trial Court in respect of issue No. 2 was challenged. It was argued that the later will dated 31.1.1%3 is a forged document and otherwise also surrounded by suspicious circumstances which the propounder have been unable to dispel. Various suspicious circumstances which surround the execution of will dated 31.1.1963 have been simply bypassed by the trial Court for no valid reason. It was further argued that no plausible explanation has been given by the Defendants as to why the Will was executed at Dholowal a place away from his permanent residence and got attested by witnesses belong to some other village. Not only this, even the version set up by the Defendants that the will has been executed at the clinic of the doctor alleged to be attending to Bela Singh stands disproved in view of the sworn testimony of Dr. Sansar Singh. Besides it, no plausible explanation has been given in the later will be deprive the Plaintiff of his right to inherit the property in normal course of succession. The lower appellate Court examined all these objections threadbare but found no ground to differ with the conclusion arrived at by the trial Court. Resultantly, the appeal too was dismissed.

Before me, the learned Counsel for the Appellant has once again argued that suspicious circumstances surrounding the Will having not been dispelled by the Defendants by leading cogent evidence the conclusion arrived at by the Courts below is vitiated on this ground also. According to the counsel, it is for the propounders to dispel the suspicious circumstances and unless the same was dispelled such a document even when registered does not put it at a higher pedestal. The following suspicious circumstances surrounding the execution of the will have been highlighted; (i) the Will has been executed at Dholowal a place away from the permanent residence of Bela Singh, where none of relation used to reside; (ii) both the attesting witnesses of the will belong to some other village i.e. they are neither residents of village Naushehra nor belong to Dholowal; (iii) no clear evidence is on record as to how and in what manner the Sub Registrar reached the place and allegedly registered the document; (iii) Dr. Sansar Singh has categorically denied that Bela Singh was his patient or was at his clinic on the day the will was stated to have been executed. Elaborating, the counsel for the Appellant once again made reference to the statements of witness in support of his above contention. In addition thereto, he argued that no worthwhile explanation has come forward to exclude the Plaintiff who would otherwise had a right to inherit the property alongwith his brothers. Reliance has been placed upon the decision of the apex Court in case reported as Ram Piari Vs. Bhagwant and others, and the decision of M Court in case reported as Mit Singh and Ors. v. Malkiat Singh and Ors. 1984 P.L.R. 278.

Counsel for the Respondents, on the other hand, argued that various points which have now been argued by the learned Counsel for the Appellant have, infact, been examined by both the Courts below in all its details. Both the judgments are lucid and deal with each one of the so called suspicious circumstance now highlighted by the Appellant. It is after considering the objections raised that the Courts have come to the conclusion that the later will executed by Bela Singh was the last Will of the deceased without any pressure of any kind. Bela Singh was in his complete sense at the time when the will was executed and, infact, lived for another five years before he died. Thus, during these five years, he neither expressed any desire to revoke the later Will or modify it. This being the last Will of the deceased and as proved by the sworn testimony of the scribe and attested witnesses and it being a registered document amply demonstrate that the same is not surrounded by any suspicious circumstance. Needless to say, the findings of the courts below being concurrent and otherwise not vitiated in any manner, this Court, in fact, cannot reappraise the evidence u/s 100 of the CPC in view of the consistent view of the apex Court as well as of this Court. Reference was made to the decision of the apex Court in case reported as Meenakshi Mills, Madurai Vs. The Commissioner of Income Tax, Madras, ; Smt. Malkani Vs. Jamadar and Others, and the decision of this Court in case reported as Fateh Gugan and Ors. v. Sardara and Ors. AIR 1988 P&H 333.

Admittedly, Bela Singh executed the first Will on 28.10.1958 bequeathing his entire property to the Plaintiff and Atma Singh, his sons, in lieu of their services rendered to him with the provision that both of them Will give maintenance to Smt. Chanan Kaur widow of his predeceased son Santa Singh. It was registered will. It is after a gap of about five years that another Will same into existence wherein property has been bequeathed in favour of Defendants No. 1, 3 and 4. The later Will too is a registered will. This will has been scribed by Karam Singh, DW 1, and attested by Kartar Singh and Lachhman Singh which was registered by Gopal Singh, Naib Tehsildar. Karam Singh, Kartar Singh and Gopal Singh have been examined by the Defendants who have deposed to the effect that the Will had been executed by Bela Singh white he was in full senses. It is in token of its correctness that attesting witness, Kartar Singh appended his signatures and the execution of the Will was accepted before Naib Tehsildar at the time of registration. The only discrepancy which has been highlighted by the learned Counsel for the Appellant is that the application filed before the Sub Registrar on the basis of which he had accompanied the person and reached the place where the will had been succeed into writing has not come on record. The Courts below discarded this infirmity on the ground that in view of the unpurchaseable statement of the scribe, the attesting witnesses of the Will and its registration; it is of no consequence. In fact, the Sub Registrar has clearly seated in his deposition that it is pursuance is an application presented to him in his office that he visited the village Dholowal to register the will He not only came present at the stipulated place but registered also in the presence of the witnesses. Thus, there is nothing to doubt that Sub Registrar did not come present at village Dholowal. Similarly, there is no merit in the plea of the Appellant that Dr. Sansar Singh has denied that Bela Singh was ever treated by him for his alleged urinary trouble or was at his clinic on that date, as his testimony has been discarded by the Courts below on the ground that the witness has been won over by the other side.

It is well settled that it is for the propounder to dispel all the suspicious circumstances surrounding the will as well as to satisfy the conscious of the Court that the will was duly executed by the testator. In the instant case, the impugned Will has been duly proved by the statement of the scribe, attesting witnesses and its registration by the Sub Registrar. It is not the case of the Appellant that the Will does not bear the thumh-impressions of Bela Singh. No fraud. undue coercion has been pleaded. In the absence of all that one has to infer that the will was a free act of the testator and suspicious circumstances highlighted by the Appellant are insufficient to discard the document. The mere fact that the Plaintiff has been debarred from inheritance is by itself no ground to discard such a document. In fact, such a testamentary disposition invariably'' deprive the claimant as per Succession Act. The apex Court in Rabindra Nath v. Panchanan Banerjee 1995 SC 1684, held that deprivation of the natural heir by the testratrix should not raise any suspicion; because the whole idea behind execution of Will is to interfere with the normal line of succession. So natural heir would be debarred in every case of will - he may be fully debarred or only partially. Why the testator thought of executing the Will at another place and in the circumstances as highlighted by the Defendants does create some doubt and Will remain a matter of guess work May be, he intended to keep it a secret. There is no reasonable explanation forthcoming for execution of the document in another village where he had no relation. The only explanation give is that he was suffering from some urinary ailment and so was under the care of Dr. Sansar Singh. The explanation given by the Defendants is quite believable even when Dr. Sansar Singh for reasons best known to him has chosen to depose against the Defendants. According to the Courts below, this witness was given up having been won ever and so examined by other side to disprove the version set up by the Defendants. The Court rightly discarded the statement of Dr. Sansar Singh; in view of the, deposition of the scribe, attesting witnesses of the Will as well as of Sub Registrar that the will was registered by him just outside the clinic of Dr. Sansar Singh.

The word ''secret'' as per Chambers Twentieth Century Dictionary, means, kept back from knowledge of others, guarded against discovery or observation; unrevealed; hidden; secluded; recondite, occult; preserving secrecy; admitting to confidence, privy.... The word ''suspicious'' means act of suspecting; state of being suspected; the imagining of something without evidence or on slander evidence; inkling; mistrust.... Suspicion means full of suspicion. A document may be meant to be a secret but the same Will not imply it to be suspicious as well. So in the context of the present case, the Will executed at another place can be held to have been executed secretly. Much reliance has been placed by the learned Counsel for the Appellant upon the decision of the apex Court in Ram Piari''s, case (supra) for the view that despite the concurrent finding recorded by the Courts below, this Court is not precluded from reversing the findings since the same are vitiated per se. In this case the apex Court accepted the contention of the daughter who was stated to have been disinherited on the basis of will set up by the other side. In the instant case, he daughter had been disinherited whereas all the property had been bequeathed in favour of sons of her only sister. The Court noticed that the Will had been executed only a day before his death by which she has been deprived of her legitimate claim to succeed. It is in view of the circumstances of the case that the Court came to the conclusion that the Will is surrounded by suspicious circumstances and so those to reverse the findings of the Courts below. In the present case, the Appellant has failed to make out A case of this nature. This judgment is not applicable as per facts of the present case.

Similarly, in Mit Singh and other''s case (supra) it was held that no reason has been given as to deprive a person entitled to succeed is primarily based on the peculiar facts of the case. It was noticed that the will was not produced despite opportunity granted by the Court in this regard. Witnesses had not put the thumb impressions tinder the text alleged to have been dictated by the testator when sufficient place was available. In addition thereto, the will was not registered and this too created an element of deep suspicion about its genuineness. However, in the present case, the will has been admittedly registered and its scribe and attesting witnesses have come and deposed to prove the authority of the document.

Both the Courts on carefully examining the evidence led came to the conclusion that the last Will of Bela Singh was executed by him of his free will and without any pressure which has been amply proved by the deposition of the attesting witnesses as well as its registration. This being a finding of fact is binding in second appeal. The Division Bench in Fateh Gugan''s case (supra) held as under.-

Section 100 of the CPC accords statutory recognition to the well known principle that a Court of second appeal will not determine disputed or doubtful questions of fact or disturb findings on pure question of fact when such findings are supported by evidence and are not unreasonable or perverse. If, therefore, the judgment of the first appellate Court is in accord with correct principles of law and based on competent evidence reasonably tending to support the findings, the order of the first appellate Court will be affirmed even though it would have decided otherwise if it had occupied the place of the trial Court or the first appellate Court.

The apex Court in Smt. Malkani''s case (supra) held that in view of the concurrent findings of the Courts below as to due execution and registration of the no question of law much less a substantial question of law arise and so the High Court, rightly dismissed the second appeal. This way the Supreme Court also found no ground to interfere with the finding of fact so recorded.

Thus finding no merit in this appeal, the same is dismissed.