Diali vs Amar Kaur

N.K. Kapoor, J.—This is defendants'' appeal against the judgment of the learned Additional District Judge, Kapurthala, whereby the judgment and decree passed by the trial Court was reversed and suit of the plaintiff decreed with costs.

Briefly put, Kesar Singh son of Narain Singh was the owner of the properties in dispute. On 2nd January, 1972 Kesar Singh executed a Will in favour of Amar Kaurplaintiff. Kesar Singh died on 25th October, 1972 leaving behind his widow Kartar Kaur, mother Diali and daughter Amar Kaurplaintiff as legal heirs. Mutation of the estate of Kesar Singh was sanctioned in favour of the said three heirs equally. The plaintiff has alleged that the mutation has been wrongly sanctioned as she is the sole heir of Kesar Singh deceased) on the basis of Will in her favour. It is alleged that Dialidefendant (now through legal representatives with the convinance of revenue officials got the mutation entered and sanctioned fraudulently. It is alleged that Banta Singh defendant No. 3 has taken forcible possession of khasra No. 8/2 (2 Kanals 15 Marlas). When the defendant refused to accept the rights of the plaintiff on the basis of the will, she filed this suit.

Notice of the suit was given to the defendants, who appeared and filed written statements. Shrimati Kartar Kaur defendant No. 2 has admitted the claim of the plaintiff in her written statement. She also claimed in the alternative that in case the disputed Will is not proved, she is entitled to 1/3rd share of the property in dispute, being the widow of Kesar Singh (deceased). Defendants Nos. 1 and 3 have filed joint written statement. According to them, the suit is collusive between the plaintiff and her mother Kartar Kaur, defendant No. 2. They have pleaded that the mutation was got sanctioned by Kartar Kaur and Amar Kaur and that no Will was produced at the time of the sanctioning of mutation and therefore it is a forged document. They denied the execution of Will. It was further pleaded that the plaintiff was estopped from filing the suit by her acts and conduct. They further stated that the mutation was rightly sanctioned and it was, in the knowledge of the plaintiff but she never challenged the same before any authority. Possession of the plaintiff over the suit property was also denied. It was pleaded that some khasra numbers were in possession of Chanan and Banta Singh while the others were in joint possession of the plaintiff and defendant No. 2.

On the pleadings of the parties, the following issues were framed by the trial Court :

"(1) Whether Kesar Singh executed a valid Will in favour of Shrimati Amar Kaur ? OPP.

(2) Whether the plaintiff is estopped from filing the suit by her acts and conduct ? OPD.

(3) Whether the plaintiff filed the suit in collusion with Defendant No. 2 ? OPD (I and 2)

(4) Whether Banta Singh and Chanan Singh are in possession of the suit land ? If so to what effect ? OPD.

(5) Whether Chanan Singh is a necessary party ? OPD.

(6) Whether the land and other property was ancestral property in the hands of Kesar Singh ? If so to what effect ?

(7) Relief."

The trial Court decided issue No. 1 against the plaintiff. Issue No. 2 was decided against the defendants as having not been pressed. Issue No. 3 was decided against the plaintiff. Issues Nos. 4, 5 and 6 were decided against the defendants as they were not pressed before the trial Court. Resultantly, in view of its decision on issue No. 1, the trial Court dismissed the suit of the plaintiff with costs.

Before the appellate Court, the plaintiff challenged the findings of the trial Court only under issue No. 1; whether Kesar Singh executed a valid Will in favour of Shrimati Amar Kaur. The lower appellate Court relying upon the testimony of Kartar SinghScribe (P.W.1) and Surjan Singh (P.W.2) and Balwant Singh (P.W.3) attesting witnesses of the Will, held that the Will has been duly executed. The lower appellate Court brushed aside various suspicious circumstances surrounding the execution of the Will, as noticed by the trial Court, by holding that the same have no material bearing; thereby reversing the judgment and decree of the trial Court and decreeing the suit of the plaintiffs.

The learned counsel for the appellants has assailed the conclusions of the lower appellate Court on the ground that the same were based on mere conjectures. He further urged that the points noticed by the trial Court have been bypassed or met with by mere conjectures and this way the judgment of the lower appellate Court is wholly vitiated. In support of his contention, the learned counsel pressed into service the wellknown dictum laid down by the apex Court in H. Venkatchala Iyengar v. B.N. Thimmajamma and others, that mere proving of the Will by producing the attesting witnesses and the Scribe itself is not sufficient and the propunder besides these legal requirements, have to dispel the alleged suspicious circumstances surrounding. The Will before the same can be accepted as the natural disposition of the testator. The learned counsel, in support of his contention, referred to various suspicious circumstances which have come on record. He contended that Will has been scribed at the tubewell by a person who is only a repairer of tubewells, that is to say the Will has not been scribed by a Petition Writer or a person who can be said to have even the elementary knowledge of recording such a document. The testimony of the Scribe was sought to be discarded for the reason that he is an illiterate whereas the language of the document gives an impression that same was dictated by a person having an acumen of writing such like documents. The fact that Kesar Singh was keeping good health would be a factor to be taken into consideration as to why there was unjust haste in getting this document executed especially when the village is wellconnected with road leading to Sultanpur Lodhi, where there was availability of a Petition Writer. The presence of plaintiff and Shrimati Kartar Kaur at the time of sanctioning of mutation itself will be a factor to be taken note of that the disputed Will had not seen the light of the day till then and, perhaps, the same came into existence after the sanctioning of mutation. Lastly, the learned counsel highlighted that as per opinion of the Handwriting Expert signatures of Kesar Singh on the Will. (Exhibit P1) were forged. These various circumstances, according to the counsel, create suspicion with regard to the due execution of the Will subject matter of adjudication and since no reason has been assigned by the testator to disinherit Shrimati Diali, his mother, the lower appellate Court erred in law in reversing the judgment and decree of the trial Court.

The learned counsel for the plaintiffrespondent in support of the conclusions of the lower appellate Court contended that each one of the so called suspicious circumstances made basis to dismiss the suit of the plaintiff by the trial Court holding that the Will in dispute is surrounded by suspicious circumstances, has been squarely met by a well reasoned judgment of the lower appellate Court; and in this view of the matter the same does not call for any interference.

The fact that the Will was scribed by Kartar Singh (P.W. 1), a Mechanic, and attested by Sudan Singh (P.W. 2) and Balwant Singh (P.W. 3) is in fact not a matter in dispute. The Will is being challenged on the grounds that, the signatures of Kesar Singh on the alleged Will are forged; no reason has been assigned to disinherit Shrimati Diali; Scribe of the Will is an illiterate person; the Will has not been registered; and the fact of attestation of mutations (Exhibits D2 and D6) whereby property left by Kesar Singh has been duly mutated in favour of the plaintiff and defendants, that is to say that till then the Will had not come into existence. The report of Mr. K.S. Puri, Document Expert (D.W. 4), indeed has a material bearing on the point in controversy. According to this witness, the signatures on the Will do not tally with the specimen signatures (Exhibits D1 and D2) of Kesar Singh. The lower appellate Court somehow chose to ignore this report on the ground that the photographs of the specimen and disputed signature were not taken by the expert personally and were supplied to him by the counsel for the respondents. This way, the basic material used by him was held not to be authentic and reliable by the lower appellate Court. Secondly, the lower appellate Court observed that signs of handwriting being not exact, it would be safe to rely upon the statements of the witnesses of the Will in preference to the deposition of the Handwriting Expert. Besides, the lower appellate Court observed that two admitted signatures of the testator in the register of Cooperative Society do not seem to be identical, though affixed at the same time. The lower appellate Court had, however, neither compared the disputed signatures with the admitted signatures nor dealt with the observations made by the trial Court in this respect. The trial Court, while considering this aspect of the matter, returned a firm finding that signatures of Kesar Singh on the Will (Exhibit P1) is a piece of clear cut forgery. The trial Court further observed "I have myself minutely examined the disputed signatures with approved signatures and find that the reasons given by the expert do exist and are true." The lower appellate Court, thus, has not examined the matter in its depth. Admittedly, there is no dispute between the parties as regards the standard signatures appearing in the register of Cooperative Society with which the signatures on the Will were sought to be compared. Significantly, the plaintiffs at no time made any prayer to examine any other expert to prove that the statement of Mr. K.S. Puri (D.W.4) is false or, say the signatures of Kesar Singh on Will (Exhibit P1) in fact tally with the standard signatures. This, when examined in the background that the mutation was entered at the behest of Gurmukh Singhhusband of Shrimati Amar Kaur plaintiff and was sanctioned in the presence of Kartar Kaurdefendant No. 2 would create a suspicion that the impugned Will till then was not in existence else Gurmukh Singh would not have lodged with the Patwari nor Kartar Kaur would have agreed to the sanctioning of the same. The defendants have examined Darshan Singh, Patwari Halqa Dandupur (D.W. 3) who has deposed that Gurmukh Singh had lodged a report. This witness also deposed that he personally gave information to the heirs of Kesar Singh before the mutation was sanctioned and that Kartar Kaurrespondent was present at that time. These are suspicious circumstances and cannot be said to have been dispelled by examining the Scribe and the attesting witnesses. The explanation given by the plaintiff for disinheriting Shrimati Diali is too hypothetical i.e. since Narain Singh father of Kesar Singh gifted his property to Chanan Singh, Charan Singh and Banta Singh brothers of Kesar Singh, Kesar Singh did not want Shrimati Diali to inherit his property else she would have given the same to his brothers whom he did not like. However, we impugned Wwill did not make mention of this version. The Will, in the circumstances noticed above, cannot be said to be free from suspicion. It is in this connection that test of satisfaction of the judicial conscience has been evolved. This test emphasises that in determining the question as to whether the instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator. Numerous suspicious circumstances noticed do give an impression that the instrument Will is not fee act of the testator.

Resultantly I accept the appeal, set aside the judgment and decree of the lower Court and affirm the judgment and decree of the trial Court; thereby dismissing the suit of the plaintiff. Parties are, however, left to bear their own costs.