Gajjan Singh (Died) vs Sant Kaur alias Jaswant Kaur

H.S. Bedi, J.—This is a defendant''s second appeal. The facts giving rise to the filing of this appeal are as under :

Sant Kaur alias Jaswant Kaur filed a suit for possession of land measuring 47 Kanals 15 marlas and for a declaration that she was the owner of agricultural land measuring 12 kanals as detailed in subpara (2) of Para 2 of the Plaint. The case of the plaintiffrespondent was that her father Kishan Singh, who died on 24th February, 1972, was the owner of the entire suit land. As his only daughter Harnam Kaur had predeceased him, the plaintiff respondent who was her only child, had become the owner of the suit land. It was further alleged in the plaint that the defendantappellant Gajjan Singh had put up a will dated 10th September, 1955 allegedly executed by Kishan Singh and on its basis he had got sanctioned a mutation with respect to the abovesaid land. It was pleaded that the aforesaid Will was a forged one and, as such, could not take away the rights of the plaintiffrespondent.

The defendantappellant appeared in court and filed his written statement taking various objections. It was pleaded that the property described in para 1(a) of the plaint, i.e. 12 kanals of land had been mortgaged with him for the last 50 years or so, and as such the suit regarding that relief was time barred. On merits, it was admitted that the entire property belonged to Kishan Singh deceased, but the relationship of Sant Kaur with Harnam Kaur, daughter of Kishan Singh, was denied. It was further asserted that the Will dated 10th September, 1955 had been validly executed and on its basis, a mutation had also been sanctioned. It was pleaded that in the Will itself Kishan Singh had made a recital that as he had spent several thousands of rupees on the marriage of Harnam Kaur and that as the appellant had cleared the debts of the testator, the Will was being made pursuant thereto.

On the pleadings of the parties, the trial court framed the following issues :

Whether the plaintiff is the daughter''s daughter of deceased and, as such, has locus standi to file the present suit ? OPP.

Whether suit of the plaintiff regarding property in para Nos. 1 and 2 of the plaint, is barred by limitation, as alleged ? OPD.

Whether Kishan Singh deceased had executed a valid Will on 10.9.1955 in a sound and disposing mind in favour of the defendant ? OPD.

Whether the suit has been properly valued for the purpose of court fee and jurisdiction ? OPP

Whether the suit is barred by limitation ? OPD

Relief.

The trial court on a consideration of the evidence came to the conclusion that the plaintiffrespondent was the daughter of Harnam Kaur the grand daughter of Kishan Singh deceased. Issue No. 2 was also found against the defendant and it was held that the suit was within time. On issue No. 3 it was found that the execution of the Will Ex.D1 was shrouded in suspicious circumstances and could not be relied on. Issue No. 5 was also found against the defendant and it was held that the suit was within limitation. The trial court accordingly decreed the suit for possession of land measuring 47 kanals 15 marlas and also for a declaration that she was the owner of 12 kanals of land as detailed in the plaint. The appeal taken by the defendant Gajjan Singh before the Addl. District Judge, Ludhiana also failed and the judgment of the trial court was affirmed in all respects. It is against this judgment that the present second appeal has been filed before this Court.

It has been argued by the learned counsel for the appellant that there was no cogent evidence to prove that the plaintiff Sant Kaur was, in fact, the daughter of Harnam Kaur, who was admittedly the only child of Kishan Singh deceased, and that the evidence that had come on record to prove the relationship between Harnam Kaur and Sant Kaur did not satisfy the provisions of section 50 of the Indian Evidence Act. The argument is that as the question of relationship inter se Sant Kaur and Harnam Kaur was in issue, something more than the mere statements of the witnesses on that point was required.

I have considered this argument of the learned counsel and find that it lacks merit. In addition to the ocular evidence of Dr. Gurbachan Singh, father of Sant Kaur and the husband of Harnam Kaur, read with the statement of Jamait Singh Waraich (PW3) and Major Kapur Singh (PW4) the birth certificate Exhibit P1 which clearly proves the fact that Sant Kaur was the daughter of Harnam Kaur and Dr. Gurbachan Singh. Moreover, it is to be noted that Dr. Gurbachan Singh in his evidence in court clearly stated that he had brought up Sant Kaur as his own daughter. That apart PW10/A which corresponds to Exhibit D.26 which is a mutation sanctioned in favour of the appellantdefendant and which has been relied on by both the sides, it had been clearly stated that Gajjan Singh, the present appellant, had requested that notice be issued to Sant Kaur as an affected party and a genealogical tree drawn up on the said mutation clearly indicated that Kishan Singh''s father was Gurmukh Singh whereas Harnam Kaur was his daughter and she had a daughter by the name of Sant Kaur. It is further to be noted that this table was drawn up by the appellant in an ex parte proceeding against Sant Kaur and this circumstance clearly clinches the matter against him. I am, therefore, of the opinion that there is no manner of doubt that the plaintiffrespondent was, in fact, the daughter of Harnam Kaur and the granddaughter of the deceased testator Kishan Singh.

It was next been argued by the learned counsel for the appellant that the Will Exhibit D1 dated 10th September, 1955 had been validly executed. In this connection it has been pointed out that the Will was a natural document inasmuch as that the parties being Jat Sikh, it was to be expected of Kishan Singh to ensure that his landed property went to a close male relative; the appellant being his nephew. It has further been highlighted that the recital in the Will went on to give reasons as to by Harnam Kaur was being denied her share in the property and on this it was asserted that this was so because the appellant had served Kishan Singh after he had migrated to Burma and as he had been discharging his liabilities towards land and generally looking after his affairs, the Will was a natural consequence.

I have considered this argument of the learned counsel and find that as the execution of the Will itself is in doubt, any recital in it becomes irrelevant. In addition to the fact that the Will itself creates a legacy which is unnatural, there are other factors which clearly militate against its execution. Without reiterating all the factors that have been taken before the courts below, it deserves highlighting that the Will is said to have been scribed by Sher Singh DW3 and a bare look at the Register maintained by him (which has been perused by me) indicates the shoddy manner in which it has been kept. In addition to the fact that the pages have been haphazardly fixed there is other clinching evidence to indicate that the Register was even otherwise not being maintained properly. For example, a document which is alleged to have been executed on 30th July, 1955 is shown to have been entered at Serial No. 252 whereas a document at No. 254 is purported to have been executed on 5.7.1955 (this page which is apparently the last one is missing from the Register). Similarly the document at serial No. 224 is said to have been executed on 22nd December, 1953 while the document at Serial No. 223 is alleged to have been executed on 23rd January, 1954. There is yet another circumstance which militates against the Will. It has come in evidence that Kishan Singh had filed a suit against the appellant on 7.1.1957 and that litigation lasted up to 15th February, 1960. It would therefore be unnatural to accept that after the years of litigation between the appellant and Kishan Singh, the relationship between them could still have remained cordial. There is yet another circumstance which needs to be highlighted. It has come in the evidence of Sher Singh DW3 that the Will had been executed after the litigation had started i.e. after 7th January, 1957 which gives a complete gobye to the Will Ex.D1. It has also come in the evidence of Gajjan Singh appellant that DW3 Sher Singh had been his attorney on an earlier occasion which shows the relationship that these two bore towards each other. To my mind, therefore, the Will Exhibit D.1 cannot be relied on. It is well known that a Will has to be proved by its propounder and where the Will, on the face of it, is found to be an unnatural document, the weight of evidence must be greater. To my mind the appellant has not been able to prove the valid execution of the Will.

It has next been argued by the learned counsel for the appellant that there were in fact two basic issues before the court (i) with regard to the land measuring 47 kanals 15 marlas which was the subject matter of the Will and (ii) the land measuring 12 kanals which stood mortgaged with the defendantappellant. It has been highlighted that even assuming that the Will in question was not proved the question of the mortgage stood admitted by the plaintiffrespondent in her pleadings. It has been pointed out by the learned counsel that in the plaint itself, it has been mentioned at number of places that the mortgagee rights with respect of 12 kanals of land vested with the defendantappellant. In the written statement filed, this fact was admitted that this was the situation and as the mortgage had been executed on 9th June, 1948 and as the appellant had purchased the mortgagee rights thereafter and stepped into the shoes of the original mortgagee, the suit was time barred qua this part of the land having been filed on 15th May, 1976.

On this, Mr. S.C. Kapoor, the learned Senior Advocate appearing for the respondent has urged that the admission with regard to the transfer of the mortgagee rights made in the plaint was a mistake as it has come on record that the land measuring 12 kanals had already been redeemed much earlier.

I have considered this argument and find that it lacks merit. Even in the Jamabandi Ex.D.11 for the year 197374 it had been clearly mentioned that the appellant was the mortgagee of the land in question and there is absolutely no evidence to show that the said mortgage had ever been redeemed. Moreover, the admission made in the plaint concludes this matter against the respondent on this score and she cannot at this stage turn around and say that the admission had been made erroneously in an attempt to deprive the appellant of at least this benefit.

It has finally been argued by the learned counsel for the appellant that the suit with regard to the other property i.e. 47 kanals 15 marlas was also time barred; as Kishan Singh had died on 24th February, 1972 and the suit had been filed on 15th April, 1976. This argument of the appellant is, however, without force. It has been admitted by the defendantappellant Gajjan Singh that Kishan Singh had remained owner of the land till his death and as such a suit for possession could be filed 12 years thereafter with respect to this area.

For the reasons recorded above, this appeal is partly allowed and the finding of the courts below with regard to 12 kanals of land is reversed and the suit qua this land is dismissed. The judgments of the courts below are affirmed with regard to the land measuring 47 kanals 15 marlas and the appeal to that extent is dismissed.