Gurnam Kaur and Others vs Amarjit Kaur and Others

R.L. Anand, J.—Plaintiffs remained unsuccessful in the trial Court as well as in the first Appellate Court and they have filed the present appeal which has been directed against the judgment and decree dated 23.4.1997 passed by Additional District Judge, Gurdaspur, who affirmed the judgment and decree dated 22.10.1991 vide which the suit of the plaintiffs for possession was dismissed.

Some facts of the case can be noticed in the following manner:-Unsuccessful plaintiffs filed a suit for possession of the land fully described in the head-note of the plaint measuring 40 kanals 13 marlas on the allegations that the property in dispute was owned by one Rattan Singh son of Maghar Singh, resident of village Aujala. Rattan Singh owner had a son-in-law by the name of Rattan Singh son of Natha Singh. Rattan Singh, owner of the land, died in the year 1975. Jagir Kaur, defendant No. 2 is the daughter of Rattan Singh owner. The suit land was in possession of defendant No. 3. Plaintiffs Jarnail Singh, who is now being represented by Gurnam Kaur, Gur Iqbal Singh and Jagjit Singh, Phulwant Singh, Dilbagh Singh, Rachpal Singh and Jaspal Singh are the grandsons of Rattan Singh owner. Defendant No. 1 Amarjit Kaur claims that she is the daughter of Joginder Singh, pre-deceased of Rattan Singh owner. The case set up by the plaintiffs before the trial Court was that Rattan Singh owner had executed,a valid Will in their favour on 4.3.1971 and on the basis of that Will they have become the owners of the property and thus they are entitled to the possession of the said property.

On the contrary, the contest given by the defendants was on the plea that Rattan Singh owner did not execute any Will in favour of the plaintiffs. The will propounded by the plaintiffs is a fabricated document. Amarjit Kaur, defendant No. 1, is the daughter of Joginder Singh, who is the pre-deceased son of Rattan Singh owner. Therefore, after the death of Rattan Singh owner she is entitled to 1/2 share of the property left by him. Defendants Nos. 4, 5, 6 and 8 pleaded that they have purchased the suit property from defendant No. 1 and being bona fide purchasers for consideration their title cannot be affected in the suit property. In short, it can be summarised that the plaintiffs claim themselves to be the grandsons (Dohtas) of Rattan Singh owner, whereas defendant No. 1 Amarjit Kaur claims herself to be grand-daughter (Poti) of Rattan Singh.

The above pleadings of the parties gave rise to the following issues:-

Whether Rattan Singh deceased executed a valid Will dated 4.3.1971 in favour of the plaintiffs as claimed? OPP

Whether the suit is within limitation? OPP

Whether Amarjit Kaur, defendant No. 1, is the grand-daughter of Rattan Singh? If so to what effect? OPD

Whether the defendants Nos. 4 to 8 are the bona fide purchasers of the suit property for value and without notice? OPD

Whether the plaintiffs are entitled to the possession claimed? OPP

Relief.

The parties led oral and documentary evidence in support of their respective cases. Both the Courts below disbelieved the Will dated 4.3.1970 and dismissed the suit of the plaintiffs and aggrieved by the judgment and decree, the present appeal.

Before 1 deal with the submissions raised by the learned counsel for the appellants, it will be proper for me to re-produce the relevant reasons given by the first Appellate Court while affirming the judgment and decree of the trial Court and those reasons are contained in paras Nos. 8 to 12 which read as under:-

"8. On the other hand Shri Balraj Mohan, Advocate counsel for the respondent argued that the Will in question is shrouded by suspicious circumstances and the presence of suspicious circumstances would show that the Will was a fabricated document. The learned counsel has contended that deceased Rattan Singh died on 29.11.1975 but the Will did not see the light of the day till 15.2.1982. He has contended that the perusal of the Will would show that it was exhibited in the Court of Assistant Collector as Ex.A-1 on 15.2.1982 and that there is no other evidence on the file to show that this Will was produced before the revenue authorities prior to that day. I have gone through the documents placed on the file. Ex.P9 is the copy of the mutation, which was got entered by Jamail Singh and others on 15.11.1976. The perusal of which shows that it was got entered on the basis of Will dated 4-.3.1971. If further shows that the mutation was dismissed on 6.1.1978. There is no evidence on the file that the copy of the Will was produced when mutation was entered. The perusal of copy of mutation Ex.D4 shows that a mutation was got entered by Amarjit Kaur respondent on 9.11.1978 in her favour and in the favour of Jagir Kaur The mutation was sanctioned on 30.6.1980. This mutation does not show that anybody appeared on behalf of Jagir Kaur, who is the mother of the plaintiffs and objection to the sanction of mutation, Ex.P7 is the copy of mutation, which was got entered by Jamail Singh and others on 30.10.1980 but was rejected on 15.2.1983 on the ground that mutation had already been sanctioned vide mutation No. 239 dated 30.6.1980. No doubt a mutation was got entered by the plaintiffs/appellants on 15.11.1976 alleging the Will dated 4.3.1971 in their favour but there is no evidence on the file that the Will was produced prior to 15.2.1982. It was argued by the counsel for the appellants that there was no occasion for the appellants to run for the production of the Will and that as and when they had felt necessity, they had produced the Will. This argument of the counsel for the appellants does not hold good. The appellants were required to produce the Will for mutation immediately after the death of Rattan Singh. Though they got a mutation entered but did not peruse the same and the mutation was dismissed for non-appearance. The fact remains that the Will was not shown to the defendants or to any other authority till 15.2.1982. Now a reference may be made to the statement of PW-1 Hira Lal, who is the son of Gian Chand Nanda, the scribe of the Will. According to the appellants counsel, he was a regular petition writer and that the''scribing of a Will by such a person cannot be doubted. However, the counsel for the respondents/defendants has contended that Gian Chand Nanda was not a regular deed-writer and that the perusal of the cross-examination of PW-1 Hira Lal would show that Gian Chand Nanda was not a regular deed-writer. This witness has stated in his cross-examination that the register containing entry of this Will was not having any page marking. A register maintained by a petition writer is always page-marked and carries a certificate of Sub-Registrar about the pages contained in the Register. The fact that the register produced in the Court was not page marked shows that it was not regularly maintained and interpolations can be made. Admittedly, the Will is not a registered document and no reason was assigned for not getting it registered. No doubt a Will is not compulsorily registerable document but people usually get such documents registered so that the authenticity of such a document is not challenged on a later date. It has been admitted by PW-2 Mohan Singh and PW3 Santokh Singh that the Will was scribed and executed in Court premises at a distance of 50 yards from the Tehsil Office. PW-2 Mohan Singh stated that no step was taken for getting the Will registered although they had passed in front of the tehsil compound. Admittedly, the Will is not required to be registered but its non-registration and its not scribing by a regular deed-writer and its non-presentation before the authorities for a long time causes serious doubt about the genuineness of such a document.

The next argument advanced by counsel for the defendants/respondents is that there was no reason for deceased Rattan Singh for ignoring his grand-daughter Amarjit Kaur and especially when he had already given land to his daughter Jagir Kaur by executing a registered gift-deed. The appellants had taken the plea that Amarjit Kaur was not the grand-daughter of Rattan Singh. The learned trial Court had held that Amarjit Kaur was grand-daughter of Rattan Singh. I have also scrutinised the evidence of the parties on this question and I am also of the opinion that Amarjit Kaur is the grand-daughter of Rattan Singh. No reference was made by Rattan Singh for ignoring Amarjit Kaur and it is also a big circumstance which goes against the propounders of the Will.

The next argument advanced by the counsel for the respondents/defendants is that the appellant/plaintiffs had no occasion to serve Rattan Singh deceased. Both PW2 Mohan Singh and PW3 Santokh Singh have admitted that Rattan Singh and his wife had been residing at Village Aujla and that wife of Rattan Singh used to prepare meals for Rattan Singh. Even PW4 Jarnail Singh appellant has admitted that her mother''s mother used to prepare meals for him also for the period he had been residing with them. No evidence has been led by the appellants as to how they had been serving Rattan Singh. It is also a circumstances, which shows that Rattan Singh had no occasion to execute the Will in favour of the plaintiffs.

It was next argued by the counsel for the defendants/respondents that Rattan Singh deceased was a Granthi of a Gurdwara and used to read and write in Punjabi. He has contended that it has also been admitted by PWs Mohan sigh and Santokh Singh that Rattan Singh was a Granthi and had studied upto 4th class. The learned counsel has argued that his putting signatures in Urdu makes the case highly suspicious because a person reading and writing in Gurmukhi script was supposed to write and sign in Gurmukhi script. He has contended that PW4 Jarnail Singh appellant has stated in his examination-in-chief that he was conversant with the signatures of deceased Rattan Singh but during his cross-examination he admitted that he did not see Rattan Singh signing any paper in Urdu except the Will in dispute. The Will was not a registered document and the defendants had taken the plea that the Will was a forged and fabricated document and in such circumstances, the plaintiffs/appellants were required to prove that the disputed signatures of Rattan Singh on the Will were in the hand of Rattan Singh. The plaintiffs mother Jagir Kaur was in possession of registered gift-deed which was not got produced by the plaintiffs and the disputed signatures on the Will were not got compared. The plaintiffs/appellants satisfied themselves only examining two witnesses but to my mind, they were required to do something more and they should have led some evidence to establish that the disputed signatures were in the hand of deceased Rattan Singh. The execution of the Will is shrouded by suspicious circumstances and the only inference that can be drawn is that it was not a genuinely executed Will.

The next question to be determined in this case is as to whether Amarjit Kaur was the grand-daughter of deceased Rattan Singh. The plaintiffs have simply taken the plea that they did not know as to who this lady was Amarjit Kaur has taken the plea that she was the daughter of Joginder Singh son of Rattan Singh. According to her, Joginder Singh her father died at the time of the partition of the country and that she was brought up by her grand-father Rattan Singh and her marriage was arranged by her father''s sister Jagir Kaur, who is the mother of the plaintiffs-appellants. In order to prove relationship, the defendants have examined witnesses, namely DW3 Smt. Manjit Walia, who deposed that Amarjit Kaur daughter of Joginder Singh had been studying in their school during the period 2.7.1951 to 30.7.1957. DW4 Santokh Singh the lambardar of the village has deposed about the relationship of Amarjit Kaur with deceased Rattan Singh and has stated that Amarjit Kaur was got admitted in the school by Rattan Singh and that she was brought up by Rattan Singh at village Aujla but later on Amarjit Kaur was taken by Jagir Kaur to village Bhagtana where Jagir Kaur arranged her marriage. Similar statement was made by DW5 Kartar Singh. Amarjit Kaur DW6 reiterated her entire case and her statement has not been challenged on any ground. On the other hand, one of the plaintiffs Jarnail Singh has appeared in the witness box and has denied the relationship of Amarjit Kaur with Rattan Singh. But even he had not denied certain facts specifically. According to Amarjit Kaur, she is the daughter of real brother of Jagir Kaur, who is mother of the plaintiffs. According to her, Joginder Singh died at the time of partition but Jarnail Singh deposed in his cross-examination that he did not know if Joginder Singh was son of Rattan Singh and that he was murdered at the time of partition. PW3 Santokh Singh, also did not deny the suggestion that a girl, namely Amarjit Kaur daughter of Joginder Singh was studying at Gurdaspur and that said Joginder Singh was killed during riots. Similar is the statement of PW2 Mohan Singh. The counsel for the appellants has stated that the learned lower Court had wrongly disbelieved the oral evidence adduced by the plaintiffs but had relied upon the oral evidence led by the defendants. I have gone through the statements of the witnesses examined by both the parties and I find that the statements made by the PWs are not assertive, whereas the statements made by the DWs are assertive. The oral evidence led by the defendants also finds corroboration by the documentary evidence. Now a reference may be made t6 copy of mutation Ex.P9 which has got entered by the plaintiffs/appellants. A pedigree table has been given on the back of the document according to which Rattan Singh left behind Harnam Kaur, daughter Jagir Kaur and grand daughter Amarjit Kaur pre-deceased daughter of Joginder Singh. Similar pedigree tables are also there on mutations copies of which are Ex.D4 and Ex.D7. The plaintiffs have not tried to explain the pedigree tables. They have not led any evidence that the pedigree tables were wrongly prepared by the revenue officials. They have also not led any evidence to show as to how Amarjit Kaur tried to show her right in the property in dispute. The appellants did not examine their mother Jagir Kaur who was closely related to Amarjit Kaur. From the pre-ponderance of evidence, I have come to the conclusion that the learned trial Court had rightly held that Amarjit Kaur was grant-daughter of Rattan Singh."

The learned counsel for the appellants submitted that the Courts below have disbelieved the Will dated 4.3.1971 on four predominant reasons- that the Will did not see the light of the day till 1981; that the register of the scribe is not page-marked; that the Will is an unregistered document and that Rattan Singh had signed the Will in Urdu which is improbable. The learned counsel further submitted that under the law it is not necessary that a Will should be a registered one. In fact, after the death of Rattan Singh, who died in the year 1975, the Will was produced before the revenue authorities on 15.11.1976 and entry regarding the Will was also made in the revenue record, but later on the mutation could not be entered for want of notice to the plaintiffs, that Rattan Singh was a migratee from Pakistan and it can be reasonably inferred that he must be knowing Urdu because he was primary pass. It was also submitted by the counsel for the appellants that if the deed-writer has not page-marked his register, the fault does not lie on the part of the propounder of the Will. In support of his contentions, the learned counsel for the appellants has relied upon Hakeem Rahimullah Khan Vs. Syed Sabir alias Syed Makhdeem and Others, , Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, , Smt. Rukman alias Rukmani v. Ujqgar Singh and Ors. (1983)85 P.L.R. 386 and Tara Singh v. Smt. Shanti and Ors.(1988)93 P.L.R. 413.

On the contrary, the learned counsel for the respondents submitted that the onus was upon the appellants to remove all the suspicious circumstances surrounding the Will and both the courts have rightly disbelieved the Will.

During the course of submissions, I have also had a glance to the photostat copy of the Will. After going through the reasons advanced by the Courts below, I am of the considered opinion that the Will is shrouded by suspicious circumstances. It is the admitted case of the parties that Rattan Singh had a male issue by the name of Joginder Singh, who pre-deceased him during the riots. Defendant No. 1 has been proved to be the daughter of said Joginder Singh. It is also stated in the Will itself that at the time of alleged execution the wife of Rattan Singh was alive. In these circumstances, we should see the broad probabilities why Rattan Singh should opt and give preference to the plaintiffs instead of his own wife and the daughter of his pre-deceased son. It is always well,said that blood is thicker than water and the charity begins at home. There is no averment in the Will itself as to why Rattan Singh wanted to deprive his grand-daughter (Poti). A very vague averment has been made in the Will itself that the plaintiffs shall look after and give maintenance (Gujara) to Smt. Harnam Kaur, the wife. Of course, under the law the Will is not required to be registered but the non-registration of the Will is a circumstances which gives strength to the reasons given by the trial Court and the Appellate Court to disbelieve the Will. Also it is not proved on the record that the deceased had strained relations with his wife or grand-daughter (Poti).

Both the Courts below have rightly come to the conclusion that the plaintiffs have not been able to remove the suspicious circumstances as required under the law. In this regard Support can be taken from H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, . The case law which has been relied upon by the learned counsel for the appellants in this case cannot come to the rescue of the appellants for the simple reason that they have not been able to remove the suspicious circumstances. I agree with the reasons advanced by the Courts below. Resultantly, I do not see any merit in this appeal and dismiss the same in limine. No order as to costs.