Harnam Kaur through her Mukhtiar-am Teja Singh vs Gurdial Singh and Another

K. Kannan, J.—The suit for declaration of joint possession with respect to 69 bighas 18 biswas of land being 1/2 share measuring 139 bighas 16 biswas of land in the Village Nut that belonged to the estate of the plaintiffs husband Jai Singh, who died on 30.3.1974. The suit was filed by the plaintiff on a plea that a half share had been transferred by her to the 2nd defendant-Bhan Singh, but her own half share which she retained was being attempted to be trespassed by the 1st defendant. The plaintiff had further averred that the 1st defendant propounded a Will dated 26.03.1974 said to have been executed by Jai Singh and the said Will was not true. Her contention was that she was the only legal heir to succeed to the estate. The Assistant Collector had originally granted mutation in her name in respect of the property, but this was set aside by the Collector referring to the Will propounded by the 1st defendant. This, according to the plaintiff, was unjustified and the suit was filed for the reliefs, referred to above. The 1st defendant, who was the sister''s son of the plaintiff, claimed that his mother and the plaintiff were originally the residents of Dhalewan which was a village near Nut and Jai Singh and the plaintiff had actually moved to Dhalewan about 2 1/2 years before the death of Jai Singh. The defendant was looking after him and Jai Singh being happy about his services executed a Will on 26.03.1974 bequeathing equal share to the plaintiff and the 1st defendant. It was duly executed in a sound disposing state of mind and attested by witnesses. The original Will had been filed as D2. The defendant also produced registration copy of Will said to have been executed by Jai Singh on 20.03.1974 that was about 6 days prior to the second Will where he had allowed for a disposition of the property in favour of his wife in respect of 61 bighas 12 biswas in favour of his wife. The defendant''s contention was that the subsequent Will prevailed as a last instrument and that the suit for a claim to joint possession with the 2nd defendant was not justified.

The suit went to trial on consideration of the genuineness of the Will as propounded by the 1st defendant and the trial Court framed only one issue regarding the validity of the Will executed in favour of Gurdial Singh and the plaintiff granting a half share to each and made no reference even to the Will executed in favour of the plaintiff on 20.03.1974. The Court held that the disposition in favour of the plaintiff and the defendant was natural and convincing and that there was no reason to suspect the genuineness of the Will propounded by the defendant. The appellate Court confirmed the decision of the trial Court.

In second appeal, the contention by the plaintiff on behalf of the plaintiff is that the Will was artificial and shrouded by suspicious circumstances. The learned senior counsel would submit that (i) the Will dated 26.03.1974 made no reference to the earlier Will made on 20.03.1974 which was most unusual; (ii) the earlier Will dated 20.03.1974 had been registered and the second Will was not even registered and no explanation was given by the propounder as to why it could not be registered; (iii) the executant himself had died 3 days after the alleged execution in favour of the defendant and there was no sure proof that he executed it in a sound disposing state of mind and that it was voluntarily done and (iv) there was no reason to restrict her own entitlement to the whole estate and let it be shared with the 1st defendant.

The alleged suspicious circumstances have been considered in extenso by both the courts below. As regards the plea that there was no reference to the first Will and, therefore, suspicious, the Courts have reasoned that the first Will dated 20.03.1974 had made a bequest only with reference to 61 bighas 12 biswas which represented only a half share of the property owned by Jai Singh. There was evidence by the 1st defendant that Jai Singh was the owner of 140 bighas of land and the Will in favour of the wife had been made only with reference to about 60 bighas of land. The second Will was really therefore not a big modification except that he had also made a clear reference to the remaining half of the property as being bequeathed in favour of the 1st defendant. The Will said to have been executed by Jai Singh in respect of a half share as early as in the year 1952 in favour of the 2nd defendant-Bhan Singh which had been filed and exhibited as P4. The Will dated 26.03.1974 was, therefore, a deviation from the disposition made in the year 1952 to allow for half share of the property to survive to the 1st defendant. Adverting to a circumstance that Jai Singh had been taken away from Village Nut to Dhalewan nearly 14 days prior to his death and the body brought after his death to the Village Nut, the Courts reasoned that if he had been taken away to Dhalewan 14 days earlier and the 1st defendant had a complete control over him, there would have been only one will and there was no reason to let Jai Singh to execute two wills. The second will became necessary because under the 1st will, only for 61 bighas of land that represented a half share had been bequeathed and a subsequent Will again reiterating a half share in favour of the wife and a half share in favour of the 1st defendant. The Courts also examined whether the deceased could have been held as captive by the 1st defendant to obtain a bequest in the manner he wanted. It relied on the evidence of DW4, who was the witness to both the Wills and held that it had been elicited through him that the plaintiff herself was present when the second Will was executed and having obtained an adverse answer, the plaintiff was trying to wriggle out that she was living in Village Nut, while the deceased Jai Singh had been taken away to Dhalewan against his will and detained by the 1st defendant. The Courts adverted also to a very serious circumstance that the plaintiff herself was not setting up a right to whole of the property under the Will dated 20.03.1974, for, she knew that the disposition had made reference only to 61 bighas of land, but she had not even produced the original Will. On the other hand, it was the defendant, who had produced the registration copy of the Will dated 20.03.1974 and had also produced the original of the Will dated 26.03.1974 in his favour. In the absence of the plaintiff''s exclusive claim to the property through the Will dated 20.03.1974, there was nothing suspicious about the Will propounded by him.

I must also observe that it is a matter of intrigue as to how the plaintiff did not even produce the original Will dated 20.03.1974 and would not make even a reference about it in the plaint. Evidently, she was attempting to discard the Will because it did not contain the disposition in respect of the whole of the property. It could have been possible to make a claim in respect of the property not disposed under the Will as a heir. She could not resort to such a course since the remaining half share of Jai Singh had been bequeathed in favour of 2nd defendant-Bhan Singh through P4. There could have been therefore a dispute regarding the claim by the 2nd defendant and, therefore, the need for execution of a second Will dated 26.03.1974 to quell any possible disputes in future obtained significance. This is how the lower appellate Court has also staved off objection taken by the plaintiff that there was no scope for any future dispute in the manner referred to in the second Will and the recital to that effect in the Will was not meaningless. On the other hand, there was every justification for a second Will when the first Will had not made a disposition of whole of the property that belonged to Jai Singh.

The case could have taken a different turn, if the suit were to be rested on pleading and proof that Jai Singh himself owned only 61 bighas of land and what he had bequeathed to Bhan Singh in 1952 through a Will had actually passed to his hands from 1952 itself and was making a bequest of whole of the property which he retained through the Will dated 20.03.1974. However, that was not the pleading and that was not the evidence of parties. On the other hand, the plaint makes no reference about the Will dated 20.03.1974, but stakes a claim to the property as on intestacy. It was the defendant, who produced both the Wills dated 20.03.1974 and 26.03.1974. He explained that the deceased had 130 bighas of land. He had made a Will for 61 bighas first that represented about half share and made again another Will reaffirming the bequest of half share to the plaintiff and another half share to himself. In the manner in which the pleadings have been set out and the evidence considered, it admits of no scope for making an inference that there had been an error in appreciation of evidence produced before the courts below. The judgment of the courts below are perfectly justified and I find no reason for interference with the same. The substantial questions raised regarding the validity of the Will propounded by the defendant are answered against the plaintiff. The second appeal is dismissed. No costs.