Joga Singh vs Samma Kaur and Others

R.L. Anand, J.—This is a regular second appeal filed by Joga Singh (Major) and Kahla Singh, claiming himself to be the minor son of Gurbax Singh, through his mother Suit. Anup Kaur, against Smt. Samma Kaur and 1.2 others, and has been directed against the judgment and decree dated 14.9.1987 passed by the Additional District Judge, Patiaia, first appellate Court, who has reversed the judgment'' and decree dated 28.5.1984 passed by the trial Court decreeing the suit of the plaintiffs, now appellants before this Court.

Sarvshri Joga Singh and Kahla Singh, sons of Gurbax Singh and grand sons of Inder Singh, who were born from the womb of Smt. Anup Kaur, filed a suit for declaration to the effect that they are the owners of one-half share of the land measuring 310 Kanals 18 Marias, described in sub-note (A), Situated in village Shadipur, Tehsil and District Patiaia, suit for possession in respect of land measuring 83 Kanals 16 Marias situated in village Shadipur, Tehsil and Distt Patiaia, mentioned in Sub note (B); suit for possession in respect of land measuring 28 Kanals denoted by sub-note (c), also situated in village Shadipur, Tehsil and District Patiaia; suit for possession of the land measuring 14 Kanals 12 Marias mentioned in sub-heading ''D'' situated in village Shadipur and for mesne profits from Kharif 1976 to Rabi 1979 with respect to the lands mentioned in sub-headings ''B'', ''C and ''D'' above; suit for possession of the land mentioned in sub-note ''E'' situated in village Saunthi; and finally the suit for possession of the land measuring 50 Kanals situated at Gharam mentioned in sub-note ''F''; and the case set up by the plaintiffs was that the land described in sub-notes ''A'', ''B'', ''C and ''D'' was the joint ownership of their grandfather Inder Singh and their father Gurbax Singh. The land mentioned in sub-head ''E'' and ''F'' was the owner-ship of their grandfather Inder Singh alone. Defendants Nos. 1 to 6, namely, Gurcharan Singh, Raghbir Singh, Dayal Singh, Jagir Singh, Resham Singh and Bakshish Singh are in possession of the land mentioned in sub-head ''B'' and ''C and defendant No. 13 Mahabir Singh is in possession of the land shown in sub-head ''D'' of the plaint. It is further stated that Inder Singh died somewhere in October/November 1975 after executing a will dated 22.8.1973 in favour of the plaintiffs. Thus the plaintiffs have become the owners of the suit land and defendants Nos. 1 to 6 and 13, named above, are in possession of the same. It is further stated by the plaintiffs that defendant No. 7 Smt. Samma Kaur claims to be the wife of Inder Singh deceased, although she is not the legally wedded wife. Defendants Nos. 11 and 12, namely, Kashmir Kaur and Lakhmir Kaur are not the daughters of Smt. Samma Kaur born from the loins of Inder Singh Defendant No. 8 Gurbax Singh, i.e., the father of the plaintiffs, is the son, and defendants Nos. 9 and 1.0, i.e., Smt. Harbans Kaur and Smt. Vir Kaur are the daughters of Inder Singh. Hence they have been impleaded as parties to the suit. The land of Inder Singh situated in village Beer Sounthi has also been inherited by the plaintiffs on the basis of the will. The land of village Niwarsi has been wrongly written in the document instead of village Beer Sounthi. It is also stated that Inder Singh deceased has no land in village Niwarsi. The suit filed by Kahla Sigh through his mother who has no adverse interest against him.

The suit was contested in the trial Court by defendant Nos. 1 to 7 and 11 to 13 and they filed a joint written statement stating that the land mentioned in subhead ''B'', C and ''D'' was in possession of defendants Nos. 1 to 6 and 13 as they were the tenants of Inder Singh deceased, who disappeared somewhere in the month of October/November 1975 and he did not execute any will in favour of the plaintiffs. Rather Inder Singh used to live with Smt. Samma Kaur in village Niwarsi because he was being threatened by his son Gurbax Singh. Inder Singh used to come to village Shadipur only in order to collect the share of the crop from defendants Nos. 1 to 6 and 13 till the time of his disappearance. A case u/s 302 I.P.C. was registered against Gurbax Singh for the murder of Inder Singh. These defendants also took the stand that the Civil Court has no jurisdiction to entertain the suit for possession against defendants Nos. 1 to 6 and 13.

A rejoinder was filed by the plaintiffs in which they reiterated their pleas made in the plaint by denying those of the written statement filed by defendants Nos. 1 to 7 and 11 to 13. From the above pleadings of the parties, following issues were framed :-

Whether the land in dispute was jointly owned by Inder Singh, Narain Singh and Gurbax Singh and the cultivation thereof was separate as alleged? OPP.

Whether Inder Singh deceased had executed a will in favour of the plaintiffs as alleged on 22.8.73? OPP.

Whether Samma Kaur defendant is the wife of Inder Singh and Kashmir Kaur and Lakhmir Kaur are his daughters? OPD.

Whether Civil Courts have no jurisdiction to try this suit as alleged ? OPD.

Relief.

After the conclusion of the trial, the findings of the trial Court were that the land of village Shadipur was jointly owned by Inder Singh and his son Gurbax Singh in equal shares. Issue No. 2 was decided in fayour of the plaintiffs and the alleged will dated 22.8.1973 (Exhibit P1) was believed by the trial Court Issue No. 3 was decided in this manner that it was held by the. trial Court that Smt. Samma Kaur defendant is the widow of Inder Singh but it is not proved on the record that Lakhmir Singh and Kashmir Kaur defendants are the daughters of Smt.'' Samma Kaur born from the lions of Inder Singh. Issue No. 4 was decided against the contesting defendants and finally the suit for declaration with regard to the land mentioned in sub-head ''A'' was decreed. Further a decree for possession regarding the land mentioned in sub-head ''B'', ''C and ''D'' and for mesne profits was also passed. However, with respect to the land mentioned in sub-head ''E'' suit was dismissed as prayed for.

The contesting defendant Smt. Samma Kaur and others filed an appeal in the first appellate Court and the findings of the first appellate Court went against the plaintiffs and it was held that Smt. Lakhmir Kaur and Smt. Kashmir Kaur were, in fact, the daughters of Smt. Samma Kaur and were born to her from the loins of Inder Singh. Also it was held by the said Court that the will (Ex. P1) relied upon by the plaintiffs is a forged document and that Inder Singh never executed a valid will in favour of the plaintiffs. Smt. Samma Kaur was also held to be the wife of Inder Singh. Resultantly, the plaintiffs were non-suited by holding that they had not become the owners of the land by virtue of the alleged will dated 22.8.1973 (Ex. P1). Aggrieved by the judgment and decree of the first appellant Court the present appeal.

I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. The fate of this appeal will hang over the genuineness or otherwise of the will (Ex. P1) dated 23.8.1973. This will was propounded by plaintiffs Nos. 1 and 2, who are the sons of Gurbax Singh and they were born to Smt. Anup Kaur. From the record it is established that Inder Singh had married twice. His first marriage was with the mother of Gurbax Singh. After her death he performed Chadar Andazi with Smt. Samma Kaur. From the wedlock of Inder Singh and Smt. Samma Kaur, Kashmir Kaur and. Lakhmir Kaur are the surviving daughters. At one point of time there were good relations between Inder Singh and his son Gurbax Singh and so much so vide gift deed (Ex. P2) Inder Singh gifted some portion of his land to his son Gurbax Singh and there is an entry in this regard in the Jamabandi for the year 1973-74 (Ex. P4) and this land is situated in village Shadipur. This gift deed was executed on 13.2.1961. It appears that Gurbax Singh somehow or the other managed the thumb impression of Inder Singh on some blank paper over which the disputed will (Ex. P1) dated 22.8.1973 was executed in favour of his sons in order to show that Inder Singh wanted to will away his land in favour of his grandsons. It is the settled principle of law that the onus to prove the genuineness of the will lies on its propounder and it is his duty to erase all suspicious circumstances surrounding the will and also to prove its due execution. Truth has mysterious ways to come on the surface. After making of the gift in favour of his son Gurbax Singh, Inder Singh shifted to village Niwarsi situated in District Karnal (Haryana) and he was not residing in village Shadipur. A glance at the will would show that the thumb impression of Inder Singh has been obtained by the father of the plaintiffs over which a will was written in Punjabi. It may be mentioned here at the first instance that this has not been scribed by a regular deed writer nor it is a registered one nor it is attested by any witness of village Riwari where the deceased used to reside. Rather it is attested by the witnesses, namely, Hardial Singh of village Shaide Shahwala, who is admittedly a relation of the plaintiffs and this village is at a distance of 200/500 Kilometres from the place where the will was alleged scribed by one Gurdial Singh. I will deal with the testimony of Gurdial Singh in the subsequent portion of this judgment. But there is no vital recital in the will which makes the entire will a suspicious document. Every testator in a due course and in natural probability would know where his land is situated, at the time of the execution of the will. A recital in the will (Ex. P1) would show that Inder Singh has allegedly averred that after his death the moveable and Immovable property situated in village Shadipur, Tehsil and District Patiala (Punjab) and in village Niwarsi, District Karnal (Haryana) would come to the ownership of his grandsons Joga Singh and Kahla Singh. If it is established that on the alleged date the testator of the will had no properties in village Niwarsi, it would lead to two things either that the testator was not in sound disposing mind as he was not aware about the location of his properties, or that the creator of the will fumbled because he did not know the exact position as on 22.8.1973 with regard to the properties going to be bequeathed under the will (Exhibit PI). Even in the plaint the plaintiffs alleged that there was a wrong recital by the testator with regard to the property in village Niwarsi. A perusal of Exhibit P1 would show that the testator has alleged that he is residing in village Shadipur, but the evidence on the record is consistent that Inder Singh after gifting the land in favour of Gurbax Singh shifted to village Niwarsi and he was not residing in village Shadipur in the year 1973. It has been so stated by Smt. Samma Kaur (D.W.I.) and Smt. Lakhmir Kaur. In the will it is recited that the deceased was allegedly keeping his properties in village Shadipur and village Niwarsi. But it is a fact and even admitted by the plaintiffs that in both the villages the deceased was not owning any property. The claim of the plaintiffs in the trial Court was that their father Gurbax Singh was residing with the deceased Inder Singh. Had it been so, the plaintiffs or their father Gurbax Singh would be knowing about the natural and probable facts, but the suit is not consistent with the recital made in the will, which has been relied upon by the plaintiffs and it is the basis of the suit. No doubt the thumb impressions of Inder Singh on. Exhibits P2 (gift deed) and on Exhibit P1 (will in dispute) tally, but this is not enough to hold that the will is not surrounded by suspicious circumstances. The onus of due execution was upon the plaintiffs and they have taken the assistance of Gurdial Singh P.W.2, who is the maternal uncle of the plaintiffs and this witness was earlier arrayed as a co-accused with Gurbax Singh when both of them were tried for the disappearance of Inder Singh. Moreover the village of Gurdial Singh is at a distance of 250 Kilometres from village Shadipur. He belongs to village Sammewali, though he states that he owns a house in village Shadipur. It is strange that in order to attest the will this witness has covered a distance of 250 Kilometres. In the month of August there was no occasion for this witness to come to village Shadipur in order to sow paddy, which is not a sowing season. The other attesting witness of the will was Hardial Singh, who has not been examined in the trial Court, but the fact has come on record that Hardial Singh is the real nephew of Inder Singh and he belongs to village Shaideshahwala, Tehsil Zira, District Ferozepur, which is at a distance of 200 Kilometres from village Shadipur where the will was allegedly scribed. Gurdial Singh (P.W.2) brought Hardial Singh. Thus, the above discussion would show that in order to prove genuineness surrounding the will, the native place of Inder Singh was shown as Shadipur, when factually he was residing in village Niwarsi, District Karnal. Gurbax Singh procured the assistance of two interested witnesses like Gurdial Singh and Hardial Singh and created a will over the thumb impression of Inder Singh. Even from the statement of Joga Singh plaintiff it stands established that the conduct of this plaintiff was not above board. Why the will was withheld for a period of one year after the alleged disappearance of Inder Singh, is also not established.

Learned counsel for the appellants argued with vehemence in order to convince that the will (Ex. P1) should be taken as a genuine piece of document because deceased Inder Singh was an agriculturist and it would be his anxiety that the land of the family should remain in the family, Smt. Samma Kaur had no male issue. The girls Lakhmir Kaur and Kashmir Kaur were pichh lag daughters of Smt. Samma Kaur and for that reason Inder Singh wanted to bequeath his property in favour of his grandsons. In support of his contention he has relied on the authority of this Court reported as Smt. Pritam Kaur and Ors. v. Chanan Singh and Ors. 1985 P.L.J. 488. I have gone through this citation, but it can be distinguished. Whether a particular will is surrounded by suspicious circumstances or not is a question of fact depending upon the facts of each case. There is no dispute about the law as laid down in this authority, but it has to be seen whether Inder Singh really wanted to bequeath his property in favour of his grandsons. It is not on the record that at the earliest point of time this will was ever shown to the officers or produced in court or produced in the criminal court when Gurbax Singh was facing a criminal trial. Why Inder Singh would disinherit, has wife Smt. Samma Kaur and his two daughters Lakhmir Kaur and Kashmir Kaur and why he would prefer his grandsons whose father was out and out to grab the land so that it may not go to St. Samma Kaur and her daughters. The counsel also relied upon an authority reported as Smt. Hukman alias Rukmani v. Ujagar Singh and Ors. (1983)85 P.L.R. 386, and argued that non-registration of the will (P1) does not create a doubt surrounding the will. There is no doubt about the proposition of law because a will is not required to be registered, but if it is established on record that the person like Gurbax Singh has manipulated a document by taking an undue advantage of the situation, when he had a thumb impression of his father Inder Singh on a plain paper and above that thumb impression he has manipulated a writing, it will be enough to hold that this document is a forgery. Also reliance was placed on Atma Singh v. Smt. Garg and Ors. 1988 CLJ 75, and argued that if there is a wrong recital, it is not enough to cast a doubt about the contents., If there is a wrong recital vis-a-vis one set of the property, the part of the will, should be acted upon so far its recital is in consonance with the property. This, authority is not applicable. I have stated at the very beginning that truth has a unique method to come on the surface. The plaintiffs fumbled somewhere. They were not clear in their mind about the residence of the deceased and the situation of the property. For this reason they took the assistance of two interested and unnatural witnesses besides the assistance of Darshan Singh Master, who was not a regular scribe at all and the will (P1) was manipulated. I have gone through the reasons of the first appellate Court in ignoring the will (P1) and am fully in agreement with the same. I am also of the considered view that the trial Court had erred while giving a finding that the will (Ex. P1) was validly executed.

The things do not rest here. Now it will be determined if Smt. Samma Kaur is the wife of Inder Singh and whether Kashmir Kaur and Lakhmir Kaur were born to her from the loins of Inder Singh or not. In para No. 5 of the plaint it has been alleged by the plaintiffs themselves that Inder Singh died somewhere in the month of October/Novembsr 1975. Resham Singh P.W.3 admits that Inder Singh married Samma Kaur about 40 years ago. The statement of this witness was recorded in the year 1982. Meaning thereby, that the marriage of Inder Singh with Smt. Samma Kaur was performed before the partition of the country. In other words, the first wife of Inder Singh must have died before 1947. Veer Singh (DW7) also admits that Inder Singh married Samma Kaur by way of Chaddar Andazi and they lived as husband and wife and three daughters were born out of this wedlock. Further it has been admitted by the witnesses of the plaintiffs that defendants Nos. 11 and 12, i.e., Kashmir Kaur and Lakhmir Kaur are the two daughters, who are alive out of the three and the marriage of these daughters were also solemnised by Inder Singh himself. The relationship of an individual can only be proved u/s 50 of the Indian Evidence Act. It is the stand of Smt. Samma Kaur that Lakhmir Kaur and Kashmir Kaur were born to her from the loins of Inder Singh. The defendants have produced on record Ex. DX, which is the Matriculation Certificate of Lakhmir Kaur, in which the father''s name has been given has Inder Singh and date of birth has been mentioned as 12.10.1951. This clearly indicates that Lakhmir Kaur is the daughter of Inder Singh and was born to Smt. Samma Kaur after her marriage with Inder Singh. In these circumstances it cannot be held that Lakhmir Kaur was the Pichh Lag daughter of Smt. Samma Kaur. Further in this certificate it has been mentioned that Inder Singh hails from District Karnal. To this extent. Smt. Samma Kaur while appearing as D.W.I deposed about her relationship with these girls. If the statement of Smt. Samma Kaur is read along with the statement of Smt. Surjit Kaur (D.W.2) and Jarnail Singh (D.W.5) there is no manner of doubt that Kashmir Kaur and Lakhmir Kaur were the daughters of Inder Singh. In these circumstances there was no occasion on the part of Inder Singh to bequeath the property to the sons of Gurbax Singh with whom his relations were not cordial. There was no necessity on the part of Inder Singh to ignore his living wife Smt. Samma Kaur and his daughters. No reasons have been given in the will (Ex. P1) to ignore Smt. Samma Kaur. The recital in the will that from the womb of Smt. Samma Kaur no issue has been born, is on the face of it is false. This averment has been made purposely by the plaintiffs in order to rule out the relationship of Kashmir Kaur and Lakhmir Kaur with that of Smt. Samma Kaur. It is alleged in the will that Inder Singh had sold a huge parcel of land and its sale proceeds had been deposited in the name of his wife Smt. Samma Kaur. There is not in iota of evidence to the effect that Smt. Samma Kaur had a bank balance at the time of the death of Inder Singh. All these averments and recitals have been made in. the will in order to show that the will (Ex. P1) was a genuine one. Further it stands established on the record vide Exhibit DY - the power of attorney dated 18.5.1971 by which Inder Singh executed the power of attorney in favour of Smt. Samma Kaur. This power of attorney was executed by Inder Singh in order to look after his land. So much so, Inder Singh suffered a decree of land situated in village Saunthi in favour of his wife Smt. Samma Kaur. Even the Jamabandi (Ex. P6) proves that the Sand of village Saunthi was given to Smt. Samma Kaur. Similarly, the land of village Gharam was allotted to Smt. Samma Kaur on 20.4.1970. How this land could be bequeathed in favour of the plaintiffs? All the above facts would show that the will (Ex. P1) is surrounded by suspicious circumstances and the plaintiffs never served Inder Singh. The plaintiffs have included lands situated in village Saunthi and village Gharam regarding which there is no reference in the will.

I have minutely gone through the judgment of the first appellate Court. The reasons advanced therein are sound and convincing as compared to the reasons given by the trial Court, who grossly erred in holding that the will (Ex. P1) was a genuine document. Here presence of the thumb impression of Inder Singh on the will (Ex. P1) does not prove that the plaintiffs were serving the deceased or that the deceased while in sound disposing mind executed the will in favour of the plaintiffs. The plaintiffs had procured false witnesses. A narration against the facts was got recorded above the thumb impression, which must have been obtained by Gurbax Singh, who is a main character in the entire drama and managed the will in favour of his sons by ignoring the interests of his step-mother Smt. Samma Kaur and his step sisters Lakhmir Kaur and Kashmir Kaur. Thus, I affirm the findings of the first appellate Court on issue No. 2, holding that Inder Singh never executed any genuine will in favour of the plaintiffs, i.e. Joga Singh and Kahla Singh.

In the light of the above discussions, I hold that this appeal is without any merit, and the same is hereby dismissed with costs, which are assessed at Rs. 1,000/-.