Gurdev Singh vs Jaljodhan Singh

R.L. Anand, J.—With the assistance rendered by the learned counsel for the parties, I have gone through the judgments of the Courts below. The Will of Dharam Singh has been rightly believed in favour of Jaljodhan Singh for the reasons given in paras Nos. 10 to 14 of the judgment dated 28.7.1998, which are reproduced as under :

"10. The land in dispute undisputedly owned by Dharam Singh, who was real brother of the plaintiffs. Dharam Singh was unmarried and thus, he died on 22.9.1986 without wife and issue. The present litigation pertains to the inheritance of Dharam Singh. The natural heirs of Dharam Singh are his brothers namely Gurdev Singh plaintiff No. 1, Mehar Singh defendant No. 2, Tej Kaur his sister, who is plaintiff No. 2, and Harnek Singh. Jaljodhan Singh has set up a Will dated 7.11.1985 alleged to have been executed by Dharam Singh in his favour. In order to prove the Will dated 7.11.1985 (Ex.D2), defendant respondents have examined its scribe Mukand Lal as DW3 and Harnek Singh, one of the attesting witnesses as DW4. Mukand Lal DW3 has deposed that the Will Ex. D2 was typed by him at the instance of Dharam Singh. Its contents were read over and explained to Dharam Singh and after admitting the same to be correct, Dharam Singh signed the Will in the presence of the witnesses. He further deposed that he entered this Will in his register at Sr. No. 494 and proved its copy Ex. D3. Harnek Singh DW4 has deposed that about six years back, Dharam Singh took him to Gidderbaha and Bhagwan Singh also accompanied them. There, they went to petition writer Baghla, where Dharam Singh executed a Will, which was typed by Baghla at the instance of Dharam Singh. The Will was read over and explained to Dharam Singh, who signed the same in his presence and then Bhagwan Singh attested the Will at the instance of Dharam Singh and in his presence. He further deposed that thereafter the Will was presented before the Joint SubRegistrar, Gidderbaha, who had also read over and explained the contents of the Will to Dharam Singh and after admitting the same to be correct, Dharam Singh signed the same in the presence of the Sub Registrar and that he and Bhagwan Singh attested the Will there. He has further deposed that at the time of execution of the Will, Dharam Singh was in full senses. He also stated that Dharam Singh during his life time resided with Jaljodhan Singh. In lieu of services rendered by Jaljodhan Singh, Dharam Singh executed the aforesaid Will in his favour. He further stated that Gurdev Singh, Tej Kaur plaintiffappellants were not on speaking terms with Dharam Singh.

The defendants further examined Dewan K.S. Puri Expert as DW5, who examined the disputed signatures of Dharam Singh mark Q1 to Q3 on the Will in question and compared the same with the specimen signatures of Dharm Singh appearing on the bank documents mark S1 to S4 and S4/A. After comparison, he gave a firm opinion that the disputed and specimen signatures are in the handwriting of one and the same person. He has submitted his detailed report Ex.DW5/A, which contains the reasons for his opinion alongwith photochart and negatives, which are Ex.DW5/B, DW5/C and negatives are Ex. DW5/D1 to DW5/D8. The defendants further examined Tej Singh DW6, who deposed that he knew Dharam Singh, who has died. Dharam Singh had taken a loan of Rs. 4600/ for purchasing thrashing machine from Punjab & Sind Bank. He had identified Dharm Singh there and stated that Dharam Singh resided with Jaljodhan Singh and the latter had served him. He also stated that Dharam Singh signed Ex.DW6/A to Ex.DW6/D and Ex.DW6/E are his signatures. Jaljodhan Singh while appearing as DW7 has deposed that Dharam Singh was his uncle, who was unmarried and was residing with him. He had served Dharam Singh and in lieu of services, Dharam Singh had executed the Will in his favour. He further deposed that the relations of the plaintiffappellants were not cordial with Dharam Singh and they never served Dharam Singh. He had also performed the last rites of Dharam Singh. He further deposed that Dharam Singh had taken a loan from Punjab & Sind Bank and he paid the instalments. Mehar Singh respondentdefendant No. 2 appeared as DW8 and he has also deposed that Dharam Singh was his brother, who was residing with Jaljodhan Singh defendant, as he was not married and had no issue. He also stated that Dharam Singh executed a Will in favour of Jaljodhan Singh. Dharam Singh was in full senses and his last rites were performed by Jaljodhan Singh defendant.

Admittedly, Dharam Singh deceased was the real brother of the plaintiffs. Mehar Singh DW8 also admitted that Gurdev Singh is his brother and Tej Kaur plaintiff is his sister. In the absence of any Will, the plaintiffs were entitled to inherit the land in dispute according to their shares. The Will in question is registered one. It was submitted by the learned counsel for the appellants that merely the Will is registered one, its execution cannot be said to have been proved. No Sarpanch or Lambardar of the village was taken by Dharam Singh with him for the execution of the Will. He has further submitted that it is not mentioned in the Will as to why the natural heirs namely Tej Kaur and Gurdev Singh (both plaintiffs) have been disinherited. Even there is no mention of their names in the Will nor any reason has been given for excluding them from inheritance. If a testator deprives his natural heirs without explaining the reasons, that itself constitutes a suspicious circumstance, which must be explained by the propounder of the Will. It is, therefore, for Jaljodhan Singh propounder of the Will to despel all suspicious circumstances surrounding the execution of the Will. He has made a reference to Sarwan Singh v. Gurdev Kaur, 1975 PLJ 201. In this authority, it is held that the circumstance that a Will is registered, may give an indication that it was executed by the testator, but the registration of the Will cannot peruse (per se ?) be evidence that it has been executed by the testator with sound and disposing mind. If a testator deprives his heirs, it constitutes a suspicious circumstance which must be explained by the propounder of the Will. The facts of this case are applicable to the present case. In that case the testator had deprived his heirs especially those, who were dependent on him and could have reason to look for support and maintenance to him. In the present case, Gurdev Singh plaintiff has his own family and residing separately with his family. Tej Kaur plaintiff is also married and is residing in her inlaws house. So they both were not dependent on Dharam Singh. Rather Dharam Singh was dependent on Jaljodhan Singh, as he had no wife and was taking his meal from him. Mehar Singh defendant No. 2 has equally been disinherited by Dharam Singh from his property. In the absence of the Will in question, Mehar Singh was also to get 1/4th share along with the plaintiffs. He has not raised any protest against this Will nor there is any evidence to show that he has any connivance with Jaljodhan Singh. So, they were not dependent on Dharam Singh. The Will in question is registered one and that fact also shows that it was duly executed. It has been held by our own Hon''ble High Court in a latest authority Mangat Ram v. Dina Nath, 1997(1) CLJ (C.Cr.& Rev.) 665 : 1997(3) RCR(Civil) 70 (P&H) that if some first class heirs are excluded, then the Will cannot be ignored on the basis of exclusion of some of the heirs of the deceased, if it is proved by proper evidence that the Will was properly executed. It was held that a validly executed Will, which is proved by proper evidence before the Court cannot be ignored merely on this basis. The courts are required to apply greater caution while examining such a Will, but it cannot be said as a principle of law that every Will, which is a valid and properly executed and proved before the Court cannot be given effect to merely for the reasons that it ignore some of their heirs of the deceased.

In the light of the aforesaid authority, I have perused the case in hand. The plaintiffs were not at all dependent upon the property of Dharam Singh. So, the mere fact that the plaintiffs in the suit have been ignored in the Will in the facts and circumstances of the case, cannot be treated as a factor, which would invalidate the Will in its entirety. Apart from it, the execution of the Will Ex.D2 is satisfactorily proved. There is cogent evidence on the record that Dharam Singh deceased was residing with Jaljodhan Singh and the latter was looking after him and in lieu of services rendered, Dharam Singh deceased executed the Will in favour of Jaljodhan Singh ignoring all other natural heirs. It has also been held by the Hon''ble Apex Court in Rabindra Nath Mukerjee v. Panchanan Banerjee (dead) by L.Rs., AIR 1995 SC 2631 : 1995(3) RRR 520 (SC) that "deprivation of the natural heirs by testatrix should not raise any suspicion, because the whole idea behind the execution of the Will is to interfere with the normal line of succession. So, the natural heirs would be debarred in every case of Will, of course, it may be that in some cases they are fully debarred and in others only partially".

The other contention of the learned counsel for the appellants is that no Sarpanch or Lambardar of the village was taken, which is a circumstance, which creates doubt regarding the execution of the Will. So, he being member Panchayat was equally respectable person of the village. Even otherwise, as per requirement of law, the Will is required to be attested by two witnesses. In the present case, the Will was attested by two witnesses namely Harnek Singh and Bhagwan Singh. There mere fact that Harnek Singh is the uncle of Jaljodhan Singh respondent, is not sufficient to disbelieve him. He has got no animus against the plaintiffs. There is no suggestion much less evidence that he has got any motive or cause to depose falsely against the plaintiffs. So, there is no reason to disbelieve his sworn testimony. When the execution of the Will stands proved and it was got registered from the SubRegistrar, there is a presumption that the testator was in sound disposing mind at that time and the plaintiffs have failed to lead any cogent evidence in rebuttal to show that he was not in sound disposing mind. The plaintiffs have examined Jite Singh PW2, who is Chowkidar of the village. His oral testimony is not sufficient to hold that Dharam Singh remained ill and was unable to make rational judgment. For that the plaintiffs were required to produce some medical evidence in support of the same. Mehar Singh DW8, who is the real brother of Dharam Singh deceased has stated in clear terms that Dharam Singh was full in senses till he died. Even for the sake of argument, it may be taken that Dharam Singh remained ill for some time, then the illness is not sufficient to hold that Dharam Singh had lost testamentary capacity. All these suspicious circumstances pointed out by the learned counsel for the appellants surrounding the execution of the Will have been removed by the defendants respondents satisfactorily. There is overwhelming evidence on the record to show that Dharm Singh resided with Jaljodhan Singh defendant, who served him and in lieu of services, Dharam Singh executed the Will in his favour by ignoring other natural heirs including the plaintiffappellants. The Will is, therefore, held to be natural one and it was validly executed by Dharam Singh deceased in favour of defendant No. 1."

No merit. Dismissed.