Hazara Singh (Dead) through LRs. and Others vs Kashmir Kaur and Others

K.K. Srivastava, J.—This appeal is directed against the judgment dated 11.3.1985 of a learned Single Judge of this Court, allowing F.A.O. No. 9 of 1982 and dismissing the application for grant of probate, filed by the appellant/Hazara Singh. A few relevant facts may be noticed as under:

Ishar Singh is alleged to have executed a will dated 3.10.1964 in favour of appellant Hazard Singh, son of Jagat Singh, resident of Kalanaur Tehsil Batala, District Gurdaspur. Upon the death of Ishar Singh which took place on 8.12. 1967, Hazara Singh applied for grant of probate, based on the said will, in the Court of the District Judge, Gurdaspur. Budha Singh (since deceased, husband of Kashmir Kaur and father of Surjeet Singh, Balbir Singh and Amarjit Kaur, was made respondent besides the General Public. Budha Singh did not appear despite service of summons and as such, he was ordered to be proceeded ex parte. The learned District Judge passed an order for grant of probate to Hazara Singh vide ex parte order dated 18.12.1969, on the basis of which probate was grated on 1.4.1970, after the requisite court-fee/stamp papers were submitted. Budha Singh learnt about the grant of probate in favour of Hazara Singh. He applied on 5.10.1971 for revocation of the probate u/s 263 of the Indian Succession Act, 1925 (for short to be referred as "the act, 1925"). The District Judge dismissed the said application and his order was assailed in appeal before this Court. The appeal was allowed and the ex parte order granting probate was set aside. The matter was remanded for decision afresh after affording a reasonable opportunity to Budha Singh to prosecute his objection and lead evidence in support thereof. After remand of the case, Budha Singh was afforded opportunity to defend and lead evidence. The witnesses were examined by Hazara Singh and they were subjected to cross-examined by Budha Singh. The learned. District Judge after appraising the evidence granted probate vide order dated 19.12.1981 to Hazara Singh after recording the finding that the execution of the will was duly proved. He also held that Hazara Singh was proved to be the son of the sister of Ishar Singh deceased, the testator. It was also found that Hazara Singh had been residing with the testator Ishar Singh till his last rites. After the death of Budha Singh his legal representatives, named above, filed the (F.A.O. No. 9 of 1982) in this Court. The sons and daughters of late Budha Singh being minors were represented by their mother-cum-guardian ad litem Mst. Kashmir Kaur. The learned Single Judge after appraising the evidence on record and examining the will (Exhibit P1) held that the due execution and attestation of the will was not proved. He also held that it was not proved that Hazara Singh was the son of the sister Ishri Devi of the testator Ishar Singh deceased. He left this matter open to be gone into in the non-testamentary succession proceedings. He also left the matter regarding the relationship of late Budha Singh with the testator Ishar Singh to be decided in non-testamentary proceedings, as and when filed by either side. The appeal was allowed and the impugned order granting probate was set aside and application for grant of probate was dismissed.

Feeling aggrieved against the dismissal of the application for grant of probate, Hazara Singh (appellant) has filed this appeal.

We have heard learned counsel for the appellant and learned counsel for the respondents". We have carefully perused the judgment of learned Single Judge as also the order of learned District Judge.

The appellant led evidence before the learned District Judge to prove the will, said to have been executed on 3.10.1964 by Ishar Singh deceased in his favour in village Kalanaur. He also led evidence to prove his relationship with Ishar Singh deceased, whom he described as his maternal uncle, being the real brother of his mother Ishri Devi.

The learned Single Judge after perusing the statements of the witnesses and examining the deed of will (Exhibit P1) on record, found that the evidence of the witnesses was highly discrepant on material aspects of the case and the deed of will. was held to be not proved. After going through the findings recorded by the learned District Judge and the learned Single Judge, we find that the will (Exhibit P1) set up by the appellant-Hazara Singh has rightly been held to be not proved by the learned Single Judge. Certain glaring features of the deed of will may be noticed :

The will is said to have been scribed on an ordinary paper and by a person named Des Raj (PW 1), who is not a professional person duly conversant with the scribing of the deed of will. The thum-impression of the testator - Ishar Singh affixed on the deed of will is not clear, being ink-smudged. The Director, Finger Prints Bureau, Phillaur,to whom the deed of will (Exhibit P1) was sent for comparison of the thumb-impression with the specimen thumb impression of Ishar Singh, was of the following opinion:-

".....the impression mark ''A'' on will Exh. P1 is sufficiently ink-smudged and partly interfered with by the fold of the paper and docs not permit of comparison in its ridges characteristic details."

The learned District Judge while dealing with this aspect of the matter was of the view that the evidence on record was of unimpeachable character and it duly proved the execution and attestation of the will and as such, there was no occasion to doubt the genuineness of the deed of will. He held further that in case the testator''s thumb impression is found to be clear and the same is got compared with his admitted thum-impression, it would be another weighty factor that the will propounded is genuine but if for any reason thumb impression is not capable of comparison, that would not necessarily mean that the thumb impression is not genuine. According to him, if the scribe and the attesting witnesses are in no way related to the legatee and neither of them has any interest in the bequest and they make straight forward and inspiring depositions in support of due execution of the will, there is no valid reason for the Court to ask for more exacting proof of the will. It will, thus, appear that the learned District Judge was of the view that the evidence of the witnesses was of an unimpeachable character and worthy of belief and based on such an evidence, the due execution and attestation of the will was fully established notwithstanding the facts that the thumb impression of the testator on the will was blurred, unfit for comparison by the expert and the deed of will was an unregistered document, besides being scribed by an unskilled person like Des Raj (PW1).

This leads us to examine the evidence of the scribe of the will and the attesting witnesses to find if their evidence is of an unimpeachable character and is highly credible. The scribe-Des Raj (PW 1), it may be mentioned, is a labourer by profession and not a person connected with the scribing of the deed of will of the transfer of property. The learned District Judge was quite conscious of this fact because he himself mentioned in his findings on issue No. 1 (in para 11 of the judgment) :

"The scribe after all is a labourer. It is not his routine function to write wills. This was his first and last will. It is too much to expect of such a person to remember the various factors in their correct seriatim."

Earlier (in para 9 of his findings on this issue) the learned District Judge had ob-served in this context

"When the scribe came in the witness-box, no questions were put to him to test his literary knowledge, nor it was elicited from him as to what were his educational qualifications. Simply because he was working as a labourer, it is not permissible to jump to the conclusion that he must be a semi-literate person or he should not be conversant with the writing of a will. All this criticism becomes meaningless when we notice that the scribe wrote down the will at the dictation of the deceased. Deceased was an old man. Presumably he must have seen numerous wills being executed and as such he must be conversant with the wording of the will."

The findings of the learned District Judge, it will appear from the above discussion of the evidence, arc self-contradictory. At one place, the learned District Judge holds that this was the first and the last will scribed by Des Raj, whose function was not to write will, whereas in another place, he has held that it is not permissible to jump to the conclusion that the scribe was not conversant with the writing of will. Here, we may notice that the statement of Des Raj was found discrepant regarding the fact whether he was summoned by some messenger by the testatory Ishar Singh to the house of Hazara Singh or whether Ishar Singh himself went to his house and took him to the house of Hazara Singh for execution of the will. There is discrepancy in his statement regarding the presence of Hazara Singh at the time of writing of the will. The scribe Des Raj was working as a labourer with Hazara Singh appellant. His statement is also discrepant regarding the providing of the paper, ink and pen for scribing of the will. There is also discrepancy in his statement regarding the mentioning of khasra numbers in the deed of will. In his earlier statement (recorded in 1975), Des Raj had stated that Ishar Singh had consolidation account book with him and he had incorporated the numbers of the land in the will, whereas in his subsequent statement (recorded in 1981), he stated that he did not incorporate the khasra numbers in the will, which were told to him by the testator. The deed of will did not contain any khasra numbers. These discrepancies in the statement of Des Raj scribe are on material and substantial aspects of the case and cannot be ignored as being minor and of trifling nature. These contradictions clearly go to show that he was not a reliable witness. It is significant to note that Des Raj was working as a labourer with appellant Hazara Singh and he had not written any deed of will prior to the disputed will. Coupled with this fact, the evidence that there were 3-4 document writers nearby, who were professionally equipped and trained to write the deed of will in Kalanaur, makes highly improbable that Ishar Singh would have chosen to summon Des Raj to scribe the will. Des Raj was personally interested in Hazara Singh with whom he was working as a labourer and he cannot be held to be an independent or reliable witness and his evidence cannot be said to be of unimpeachable character.

So far as the attesting witnesses, namely Baj Singh and Kartar Singh (PWs 2 and 3 respectively) are concerned, their statements too are highly discrepant on material and substantial aspects. While Baj Singh was examined only after the remand of the case in 1981 and had not been examined earlier in 1975, Kartar Singh had been examined on both the occasions. According to Baj Singh, he had no special relationship with the testator Ishar Singh and he did not know the village from where Hazara Singh and Ishar Singh had come to reside in Kalanaur. According to the statement of Baj Singh Ishar Singh had come to call him and then he went to call Kartar Singh and both of them reached the place where Des Raj scribe was present along with Ishar Singh. According to his statement, khasra numbers were mentioned in the deed of will, which were taken down from the book given by the testator Ishar Singh. It may be mentioned that the original deed of will (Exhibit P1) did not contain the khasra numbers.

Kartar Singh (PW3) did not know the village where the testator-Ishar Sigh resided and did not know if he had any sister. According to him, he was summoned by Ishar Singh and when he reached the place, he found the other witness-Baj Singh already present there. Hazara Singh, however, was not present there. In his previous statement, Kartar Singh had stated about the presence of Hazara Singh also. Kartar Singh in his subsequent statement stated that when he had reached the place, the deed of will had already been scribed and the same was being read out to the testator. In his earlier statement, he had staled about the will being scribed in his presence. These contradictions go to show that the statements of the witnesses, Baj Singh and Kartar Singh were discrepant on the most significant and material aspect of the case regarding their presence. In his subsequent statement, Kartar Singh stated that Ishar Singh had no book of consolidation and the khasra numbers were not noted down in the deed of will, However, in the earlier statement, he had stated to the contrary and had said that the book of consolidation was available with Ishar Singh and from that book khasra numbers were noted. The learned Single Judge, in our considered view, has rightly held that the evidence of these witnesses was highly discrepant and their statements did not inspire confidence. The learned District Judge was in error in not giving due significance to these glaring inconsistencies in the statements of these witnesses and in holding that their evidence was of unimpeachable character and credible. We do not find any valid reasons to hold that the assessment of evidence by the learned Single Judge was in any way not correct and his conclusions were not valid and proper.

In view of the foregoing discussion of the evidence led by Hazara Singh,we are of the view that the same was not reliable and believable and in the result, due execution of the will as well as its attestation has not been proved. We accordingly affirm the findings of the learned Single Judge on this point.

Now coming to the relationship of Hazara Singh with Ishar Singh, the evidence led by appellant Hazara Singh to prove the relationship, comprised of Budha Sigh (PW 4) and Bahadur Singh (PW 5). At the very outset, it may be mentioned that Bahadur Singh (PW5) had categorically stated that Ishri had only daughters. Apart from this, he stated that the testator Ishar Singh was a vagabond and he used to live in Gurdwaras. Kartar Singh (PW 3) has stated that he did not know if the testator Ishar Singh had any sister. In view of the statements, the findings of the learned District Judge regarding the relationship of appellant Hazara Singh with Ishar Singh having been proved, cannot be sustained. The learned District Judge was in error in holding that there was overwhelming evidence that Hazara Singh is sister''s son of Ishar Singh deceased. The learned Single Judge has, however, expressed the view that the matter regarding relationship of Hazara Singh with Ishar Singh, as also the relationship of Budha Singh with Ishar Singh be left open to be decided whenever non-testamentary succession proceedings about the estate of Ishar Singh are filed between the parties. In our opinion the learned Single Judge has rightly left this matter open to be decided in non-tesamentary succession proceedings and we would not appraise the evidence to come to the conclusion that the said relationship had in fact been proved or not.

Resultantly, this appeal has no substance and deserves to be dismissed. The appeal is dismissed.