Gamdoor Singh vs Pritpal Singh and others

Tejinder Singh Dhindsa, J.—The plaintiff-appellant is in second appeal before this Court having remained unsuccessful in both the courts below. Briefly noticed, the plaintiff-appellant filed a suit for declaration and permanent injunction by pleading that Bhagwan Kaur widow of Hardial Singh is the mother of the plaintiff-appellant as also defendants no. 3 to 7 and she was the owner in joint possession of suit land. Bhagwan Kaur was stated to have died on 1.11.1999 and had executed a Will dated 1.2.997 bequeathing the entire suit property in favour of plaintiff-appellant and defendant no. 3 in equal shares and Will dated 18.2.1997 was duly registered on 20.2.1997 with the Sub Registrar, Jaitu, Distt. Faridkot. As such, upon the death of Bhagwan Kaur the plaintiff-appellant and defendant no. 3 inherited her estate in equal shares and they are in joint possession of the suit land. However, defendants no. 1 and 2 in connivance with defendant no. 5 and defendant no. 3 have set up a Will dated 29.10.1999 allegedly executed by Bhagwan Kaur deceased in their favour. On the basis of Will dated 29.10.1999 the plaintiff-appellant became aware that the Assistant Collector 1st Grade, Talwandi Sabo had sanctioned mutations no. 7756 and 5046 in favour of Defendants no. 1 and 2. It was stated that such Will dated 29.10.1999 is a forged and fabricated document. Various suspicious circumstances were also pleaded in the nature of Bhagwan Kaur having died just two days after the execution of such alleged Will dated 29.10.1999, no reason having been assigned for the exclusion of her daughters and the witnesses of the said Will being not the residents of village Bagha i.e., where the testator had lived. Accordingly, it was pleaded that defendants no. 1 and 2 cannot claim any right on the basis of the Will dated 29.10.1999 and as such the suit had been filed.

Defendants no. 4 to 7 were proceeded ex-parte and Defendants no. 1 to 3 contested the suit. A joint written statement was filed by Defendants no. 1 and 2 stating that the Will dated 18.2.1997 was in fact a forged and fabricated document and that Bhagwan Kaur had never executed such Will. It was stated that the Will dated 29.10.1999 was executed by Bhagwan Kaur in a sound disposing mind and on account of the service rendered by defendants no. 1 and 2. It was also stated that the plaintiff-appellant had been living separately from Bhagwan Kaur for the last 20 years prior to her death and all the daughters of Bhagwan Kaur had been duly married for the last 14 years approximately. It was also pleaded that the original Will dated 18.2.1997 relied upon by the plaintiff-appellant had not been produced. A similar plea was taken by defendant no. 3, who had chosen to file a separate written statement.

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

Whether the Bhagwan Kuar had executed a valid and true will dated 18.2.1997 in favour of plaintiff and defendant no. 3 Baldev Singh?OPP.

If issue no. 1 is proved, whether the plaintiff is owner and in joint possession of suit land on the basis of registered will dated 20.2.1997.

Whether plaintiff is entitled to declaration as prayed for?OPP.

Whether the registered will dated 20.10.99 is valid will?OPD.

Whether suit of the plaintiff is not maintainable in the present form?OPD

Whether plaintiff has no locus standi or cause of action to file the present suit?OPD

Whether suit of the plaintiff is bad for misjoinder of parties?OPD

Whether plaintiff is estopped from filing the present suit by his own act and conduct and is also guilty of acquiescence?OPD.

Whether the plaintiff has concealed the material facts from the Court and has supplied the wrong information to the Court?OPD.

Whether the plaintiff is entitled to relief of the permanent injunction as prayed for?OPP.

Relief.

The suit filed by the plaintiff-appellant was dismissed by the Trial Court and even the second appeal preferred by him has been dismissed by the Additional District Judge, Fast Track Court, Bathinda in terms of impugned judgment dated 19-8.2011 thereby affirming the judgment and decree passed by the Trial Court. Under such circumstances, the plaintiff-appellant is in second appeal before this Court.

Mr. P.K.S. Phoolka, learned counsel appearing for the plaintiff-appellant has vehemently argued that the findings of the courts below are erroneous in having upheld the Will dated 29.10.1999 and having discarded the Will dated 18.2.1997, which was a registered document. Learned counsel would stress upon the various suspicious circumstances to contend that the Will dated 29.10.1999 was not genuine and no right would flow therefrom in favour of the defendants-respondents. It was submitted that Bhagwan Kaur had died on 1.11.1999 i.e. only two days after the execution of such alleged Will dated 29.10.1999. No reasons have been assigned in the Will for the exclusion of the other six Legal Heirs and there was even no reference in such Will regarding cancellation of the previous Will dated 18.2.1997.

Both the courts below have concurrently recorded a finding so as to discard the alleged Will dated 18.2.1997 relied upon by the plaintiff-appellant. It has been noticed that the plaintiff-appellant has been residing separately from Bhagwan Kaur for the last more than 20 years. Even the original Will dated 18.2.1997 was not produced on record. Permission for secondary evidence had been granted to the plaintiff-appellant subject to proof of loss and destruction of the original Will. It was also noticed that the plaintiff-appellant upon appearing as PW-4 had never testified regarding loss of original Will dated 18.2.1997. Furthermore, the permanent address of Bhagwan Kaur in the Will dated 18.2.1997 was given as that of Jaitu Town, whereas in fact Bhagwan Kaur was a permanent resident of village Bagha. Yet, another factual finding recorded by the courts below is that Bhagwan Kaur had been residing with defendants no. 1 and 2 and that the plaintiff-appellant had been living apart from Bhagwan Kaur for the last 20/25 years.

The execution of a Will is required to be proved in terms of the provisions of Section 63 sub clause (c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. The statutory requirement to prove a Will in terms of the aforementioned provisions have been considered in a large number of decisions and the Hon''ble Apex Court in case of Benga Behera and Another Vs. Braja Kishore Nanda and Others, observed in the following terms:-

Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 of the Indian Evidence Act. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will.

Both the courts below have concurrently held the Will dated 29.10.1999 to be duly proved in accordance with law. The question regarding a Will being valid and genuine or otherwise is essentially a question of fact. The High Court in this regard would not enter into the arena of re-appreciation of evidence. Learned counsel appearing for the plaintiff-appellant has not been able to show any perversity in the findings recorded by the courts below. No question of law much less substantial question of law arises for determination in the present appeal.

The appeal, accordingly, must fail and is dismissed. Appeal dismissed.