Ganpat vs Siri Chand

I.S. Tiwana, J.—The solitary controversy raised in this regular second appeal relates to the genuineness or validity of the Will, Exhibit D1, alleged to have been executed by Puran deceased in favour of Siri Chand, defendantrespondent, on December 21, 1974. Puran died at Palwal, district Faridabad, on February 17, 1975. The Will was concededly got registered by the defendant subsequent to his death on 8th April, 1975.

The case set up by the plaintiffs is that they are the sons and daughter of Puran''s real brother, Hira Lal, and the will in question has been brought about by Siri Chand in order to defeat their legal rights as heirs to the deceased and with a view to grab his property. They also maintain that the defendant either managed to obtain the thumb impression of the deceased on a blank paper or misused such a paper to prepare the Will. As against this, the defendant pleaded that neither the plaintiffs are related to the deceased in any manner nor the genuineness of the Will can be doubted in any manner. He pleaded that the Will was executed in his favour on account of the services rendered by him to the deceased. He also claimed that a part of the property of the deceased located in village Meghpur was under mortgage with him for a sum of Rs. 1500/ and he stood surety for the deceased when he took a loan of Rs. 12000/ from the State Bank of India, Palwal Branch. As a result of the trial that followed in the light of the pleadings of the parties, while the trial Court decreed the suit of the plaintiffs the lower Appellate Court has dismissed the same by upsetting the findings recorded by the first Court.

It is not a matter of dispute that by now different Courts including the final one have laid down a number of tests to judge the nature and standard of evidence required to prove a Will, some of these being that but for the requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act, a Will has to be proved like any other document to the satisfaction of a prudent mind. However, what makes a Will to differ from any other document is that it speaks from the death of the testator and this aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be last Will and testament of the testator. Further, cases in which the execution of the Will is surrounded by suspicious circumstances, such as a shaky signature, a blurred thumb impression, a feeble mind, an unfair and unjust disposition of property and the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, have to be dispelled by the propounder. These suspicions cannot be removed by his mere assertion that the Will bears the signatures of the testator or that the testator was in a sound and disposing state of mind. The presence of such suspicious circumstances makes the initial onus heavier on the propounder. Examined in the light of these tests, I find that the defendantrespondent has completely failed to establish the genuineness of the Will.

The following facts and circumstances support this conclusion of mine :

(i) Though the relationship of the plaintiffs with the deceased is well established on record and has not even been challenged by Mr. Gaur, the learned Advocate for the defendantrespondent, yet no mention or reference to them has been made in the Win Exhibit D. 1. On the contrary, Siri Chand respondent is described or stated to be a nephew of the deceased which fact is not established on record in any manner. Further it is stated in the Will that the deceased was living with Siri Chand defendant for the last about 40 years and the latter and his sons had served him when he met with an accident and broke his leg some time earlier to the execution of the Will, yet no evidence of any sort has been brought to establish these factual assertions. Had these facts been correct, the defendant would have been able to prove and establish the same by positive evidence including the documentary evidence. Besides this on defendant''s own showing, the deceased had mortgaged some part of his property in village Meghpur with him for a sum of Rs. 1500/. Had the affinity between the deceased and Siri Chand been real and genuine as reflected in the Will, there was hardly any scope for the deceased to mortgage his property for a sum of Rs. 1500/. Thus in a nutshell, it is not established on record that either the defendant was related to the deceased in any manner or he had served him to any extent during his life time.

(ii) The Will is stated to have been scribed by D.W.1, Jagdish Chander, a clerk of Mr. Rajinder Singh, Advocate in the Court premises at Palwal, though by the time he appeared in Court as a witness, he had turned into a shopkeeper. He admitted that he was neither a scribe nor a licensed Wasiqa Nawis (Petition Writer). He also admitted that even though 21st December, 1974 was a holiday, yet the petition writers or Arzi Nawis sit at a distance of about 50 steps from the Takhat (seat) of Ranjit Singh Malik, Advocate, where the Will Exhibit D.1 was allegedly scribed but somehow it was not got written by a regular or licensed deed writer. This was in spite of the suggestion of Mr. Malik, D. W. 2, who has deposed that "I tried to make them understand that it should be got written from Arzi Nawis......... I asked them that it was better if they got it written from a petition writer." He, however, signed the document as "they only asked me to sign as a witness and I did it." He concededly did not know any of the parties except Duli Chand, D.W. 3, who, as per the admission of this witness, regularly keeps on coming to Courts in the matters of bails. As a matter of fact it is conceded by Duli Chand himself that "he keeps on appearing before the Tehsildar in the matter of registration of the Wills." His statement, when read in the light of evidence of Mr. Malik, D.W. 2, gives the impression that he is a Court bird or a sort of professional witness, readily available in matters of attestation of bails and registration of documents. Another fact which lends some credence to the stand of the plaintiffs is that the paper on which Exhibit D. 1 was scribed, was already thumb marked, is what has been disclosed by D.W. 1, i.e. the scribe and D.W. 2, Mr. Ranjit SinghMalik, Advocate. The former has stated that "it is correct that thumb impression of Puran was got affixed somewhat below on the writing, Exhibit D.1. Why did it so happen I cannot say." What D.W. 2 has stated in this regard is "it is only the person who wrote the Will who can explain why the thumb impression of Puran was not got affixed just below the writing and was got affixed much below on the paper. I put my signatures wherever I found the place to be appropriate."

(iii) It is abundantly established on record that Siri Chand, defendant, in whose favour Exhibit D.1 was executed, took a leading part in the alleged execution of the Will. He concedes as D.W. 6 that "when the Will was executed I was present... I did not find the scribe. I knew the houses of the scribes but did not go to any. I know 23 scribes .... It is correct that I had contacted Sh. Som Nath, Finger Print Expert for tallying the thumb impression on the Will of Puran but it did not materlise because his fees was high.... It is incorrect that he did not agree because the thumb impression on the Will was not of Puran. Som Nath did not return photos of the Will." He further conceded his affinity with Duli Chand, D.W. 3 while accepting in his cross examination "I was on visiting terms with Duli" though he denied the suggested relationship, of their daughters being married to two brothers, i.e., sons of Om Parkash of village Attari. Be that as it may, the fact remains that he took a leading part in the execution of the Will Exhibit DA and the witnesses to the same including the scribe, were of his choice.

For the foregoing reasons I have no hesitation in upsetting the findings recorded by the lower Appellate court and to agree with the approach and conclusions recorded by the trial Court. Therefore, this appeal is allowed. The judgment and decree under appeal are set aside and that of the trial Court is restored.