Gurdev Singh and Another vs Smt. Shanti and Others

S.S. Sodhi, J.—The appeal here arises from an inter-pleader suit filed by the tenant seeking to know who to pay rent to, for the land held by them. In other words, who succeeds to the land in suit after the death of Punjab Kaur of the last owner thereof.

The said Smt. Punjab Kaur died issueless, but leaving behind two sets of claimants to her land, one; Smt.Shanti and Smt. Basant Kaur her jater husband''s sisters, by virtue of being her preferential heirs and the others; Gurdev Singh and Mann Singh her sister''s sons who propounded a registered Will, Ex. D1 in their favour and rest their claim upon it.

According to both the trial court as also the lower appellate court, due execution of the Will had not been proved and therefore, it was Smt. Shanti and Smt.Basant Kaur, the sisters of Punjab Kaur''s late husband Bhola Singh who were entitled to succeed to her property and they were thus the owners of the land in suit.

What emerges thus as the real controversy requiring adjudication is the validity of the Will Ex. Dl, in particular, was it duly executed by Punjab Kaur in accordance with law?

The evidence on record shows that Punjab Kaur''s husband had predeceased her several years earlier and after his death, it was her sister''s sons, namely; Gurdev Singh and Mann Singh, who used to serve her. It has come in evidence that she often visited her sister, that is, their mother and it was in favour of their father Amar Singh, her brother-in-law that she had executed a power of attorney too.

In seeking to oppose the Will of Punjab Kaur, her husband''s sister Shanti came into the witness box and deposed that Punjab Kaur was of unsound mind when she executed the Will. It is pertinent to note that no such plea was put-forth in the pleadings and this assertion is not supported by any other material on record. What is more, no such suggestion was ever made to Amar Singh, the brother-in-law of Punjab Kaur in whose favour she had executed the power of attorney.

The main opposition to the Will is of course, on the ground that it had not been duly executed as required by law. It is no doubt settled law that in order to uphold the validity of a Will, the court must be satisfied that it not only bears the signatures or thumb impressions of the testator, but also that it is attested by two more witnesses, who had either seen the testator sign or affix his mark on the Will or had received from him personal acknowledgement of his signature or mark and that each such witness must also sign or affix his mark on the Will in the presence of the testator.

In the present case, it stands established that the Will Exhibit Dl bears the thumb impressions of Punjab Kaur and the signatures of Bakhtawar Singh as also the thumb impressions of Sukhdev Singh as attesting witness thereof. Further, as mentioned earlier, this Will was registered too. To prove this, besides the endorsement on the Will and signatures of the Sub-Registrar. There is also the testimony of the Sub-Registrar D(l-2) W4 Rajinder Singh. The scribe of the Will D(l-2) W2 Rattan Pal has also been examined.

Bakhtawar Singh, when he came into the witness box while admitting his signatures on the Will, both on the front as also on its reverse, denied that he had signed it as an attesting witness of the Will. He sought to explain away his signatures by deposing that it had been represented to him that the document in question was a power of attorney and that he had consequently attested it as such. The other attesting witness Sukhdev Singh was given up as having colluded with the opposite party. The Sub-Registrar, Rajinder Singh of course deposed to the registration of the Will and Rattan Pal that he had scribed it. But both the courts below held that the Will had not been duly executed as it had not been proved that it had been attested by two witnesses, as required by law.

In order to establish the validity of a Will, it has no doubt to be proved that it was attested by at least two witnesses, but it must, at the same time also be observed that it is not the intention of the law that an attesting witness be permitted to hold the propounder of a Will to ransom, as it were, by treating his mere denial of attestation of the Will, by itself, as negation of due execution of the Will. As held by the High Court of Calcutta in Mahindra Nath Ganouli v. Durga Charan Ganauli, 1959 ILR(l) Cal 471, where the attesting witnesses or some of them prove hostile or unreliable, the Probate court is not powerless to declare in favour of the Will and if from the other evidence on record and the circumstances taken as a whole, it is in a position to hold that the Will was duly executed and attested, it will pronounce in favour of its validity.

Turning now to the testimony of Bakhtawar Singh it will be seen that he admits both his signatures on the Will Exhibit Dl (on the front and reverse) as also on the register of the scribe Rattan Pal too. The explanation put-forth by him to account for his signatures on the Will cannot stand scrutiny, in as much as he deposed that he had affixed his signatures there believing the document to be a power of attorney in favour of Amar Singh. The record shows that Punjab Kaur did indeed execute a power of attorney in favour of her brother-in-law Amar Singh, but this was not done or the day the will was executed, but about three months, thereafter. The lower appellate court has clearly mis-read the evidence on this point in observing that both the Will and a power of attorney were executed on the same day. The fact therefore, the power of attorney was executed several months after the Will, cannot but give a wholly different complexion to the credibility of this witness.

Relevant in this context is also the evidence of the scribe Rattan Pal and Sub-Registrar Rajinder Singh. According to the scribe, the Will was scribed by him not only in the presence of Punjab Kaur but also the two attesting witnesses thereof, namely; Bakhtawar Singh and Sukhdev Singh and they were there when he read over and explained the contents thereof to Punjab Kaur and further that they then both attested the Will in his presence and also that of Punjab Kaur.

To a similar affect is the testimony of the Sub-Registrar Rajinder Singh who deposed that when the Will was presented to him for registration, he read it over to Punjab Kaur in. the presence of Bakhtawar Singh Sukhdev Singh and that she affixed her thumb impression on the Will in their presence.

Such thus being the state of evidence, no reliance can be placed upon the testimony of Bakhtawar Singh to the effect that he had signed the Will believing it to be merely a power of attorney. In the circumstances there is indeed a ring of plausibility in the statement of Amar Singh, the brother-in-law of Punjab Kaur and the father of the beneficiaries of the Will that Bakhtawar Singh had demanded some land from him for supporting the Will, when he did not accede to. At any rate, the circumstances being as they are, there can be no escape from the conclusion that Bakhtawar Singh''s explanation for his signatures on the Will, otherwise than as an attesting witness to it, clearly lacks credibility.

Faced with this situation, Mr. K.S. Thapar, counsel for the respondents sought to lay great stress upon the fact that the other attesting witness Sukhdev Singh had not been examined and he went on to argue that the non-examination of this witness must preclude the court from looking at any other circumstance to uphold the validity of the Will. Reliance here being placed upon Vishnu Ramkrishna Wani Vs. Nathu Vithal Wani, , where it was held that Section 71 of the Evidence Act has no application when one attesting witness fails to prove the execution of the Will and the other attesting witness who can prove the execution, are available and they are not called as witnesses to prove it.

The point canvassed though attractive on the face of it, cannot advance the respondents case. The manner in which Bakhtawar Singh had deposed must be taken to have raised a reasonable apprehension in the minds of the propounders of the Will that Sukhdev Singh, the other attesting witness, too would testify likewise. There is, at any rate the testimony of the scribe Rattan Pal to the effect that the Will had been attested by both Bakhtawar Singh and Sukhdev Singh in the presence of Punjab Kaur. Further, keeping in view the fact that the Will here was a registered Will and in the circumstances, as they emerge in this case, the registering officer too must be treated as another attesting witness. Reference may have been made to judgment of this Court in Labh Singh and Others Vs. Piara Singh and Another, where the Sub-Registrar, who had registered the Will, testified that he had read over the Will to the testator, who had registered the Will, testified that he had read over the Will to the testator, who admitted having executed it. The endorsement was then thumb marked by the testator and signed by the Sub-Registrar. It was held that it was reasonable to infer from these circumstances that the Sub-Registrar had not merely registered the Will formally, but had appended his attestation for the purpose of attesting the fact that the testator had personally acknowledged his thumb impression on the document. Since the testator affirmed the contents of the Will and put his thumb impression on the endorsement in the presence of the Sub-Registrar, the Sub-Registrar should also be considered to be an attesting witness of the Will.

Similar is the situation that obtains in this case. According to the testimony of the Sub-Registrar, he had read over the contents of the Will to Punjab Kaur, who admitted them to be correct and she then put her thumb impression on the Will in his presence and also in the presence of the attesting witnesses-Bakhtawar Singh and Sukhdev Singh who had identified her. It was further his testimony that Punjab Kaur was in a sound deposing mind at that time. The endorsement also bears the attestation of Sub-Registrar. This testimony seen with that of the scribe Rattan Pal and Bakhtawar Singh leaves no manner of doubt that the Will Exhibit Dl was indeed duly executed by Punjab Kaur and was thus a valid and legal Will. In terms of this Will, it is Gurdev Singh and Mann Singh who are entitled to succeed to the land in suit and they consequently must be held to be owners thereof.

The judgment and decree of the lower appellate Court is accordingly thus set aside and this appeal is hereby accepted with costs throughout.