Kartar Singh vs Jagir Kaur and others

N.K. Kapoor, J.—This judgment will dispose of RSA Nos. 1136 and 13r7 of 1S79 as these arise out of Judgment and decree of Additional District Judge, Faridkot on January 12,1979.

Kartar Singh has challenged the judgments of the Courts below as this will set up by him has proved to be not a genuine document. On the other hand, Harbans Kaur with a view to avoid the lawful compromise duly entered by her which consequent deprive her share.

Harbands Kaur, Jagir Kaur (Plaintiffs) and Kartar Singh (defendant) are daughters and son of Bhag Singh respectively. Bhag Singh died on September 15,1971. Plaintiffs tiled a suit for declaration to the effect that they were ownners of 2/3 share of the land in dispute and also prayed for permanent injuntion against Kartar Singh (defendant No.1) restraining him from alienating any specific portion of the land without it being partitioned. The plaintiffs further claimed possession of the 2/3rd share of the land in dispute. The basis of the plaintiffs case was that Bhag Singh executed a will dated February 24,1970 whereby both the plaintiffs and their brother Kartar Singh (defendant No.1) were to inherit the property left by Bhag Singh.

Kartar Singh defendant No.1 put in appearance and controverted the averments made in the plaint. He specfically denied that Bhag Singh made any will dated February 24,1970 as alleged by the plaintiffs. On the contrary another will on July 25,1971 bequeathing his whole land in his favour.

On the pleadings of the parties, the following issues were framed:-

(1) Whether Bhag Singh deceased executed a valid will in favour of Kartar Singh defendant No. 1 ? OPD

(2) Whether defendant Nos.2 to 11 are bona fide purchasers for valuable consideration? If so, its effect? OPD

(3) Whether the suit in the present form lies? OPP

(4) Whether Kartar Singh defendant No. 1 was in exclusive possession of the land sold to defendant Nos. 2 to 11 ? OPD

(5) Whether the suit is not properly valued for purposes of court fee and jurisdiction? OPD

(6) Whether the plaintiffs are entitled to the possession of the suit land, If so, to what share? OPP

(7) Relief.

The trial Court decided issue No. I against Kartar Singh (defendant No.1) holding that the Will set up by him in his favour was a forged and fabricated document. Issue No.2 was also decided against defendant Nos. 2 to 11 holding that they were not proved to be bonafide pruchasers for valuable consideration. Issue No.3 was decided in favour of the plaintiffs. Issue No.4 was decided against the defendants holding that Kartar Singh (defendant No.1) was not proved to be in exclusive possession of the land sold to defendant Nos. 2 to 11. Issue No. 5 was not pressed during the course of arguments and thus, was decided against the defendants. Issue No.6 was decided in favour of the plaintiffs holding that Bhag Singh had made a Will (Exhibit P-1) on

February 24, 1970 bequeathing his property in favour of the plaintiffs and Kartar Singh in equal shares and thus decreed the suit of the plaintiffs. Before the Appellate Court, counsel appearing on behalf of the appellants mainly confined his argument with regard to the validity of the Will (Exhibit D-1) dated July 25, 1971. On re-appraisal for the whole evidence, the Appellate Court came to the conclusion that Will (Exhibit D-1) was not a genuine documents and thus affirmed the finding in respect of issue No.1. The appellate court too was constrained to observe that the attesting witnness of the will had in fact conspired together and forged the document thus, finding no merit in the appeal, the same was dismissed.

Counsel has challenged the findings of the Courts below terming these to the wholly unsupportable as per evidence on record. Counsel took specific objection with regard to the conclusion.of the Court that Will (Exhibit D-1) is a forged document. On merits, counsel contended that in view of the statement of the witnesses attesting the Will same stand proved and being later in time, ought to have been preferred by the courts below.

I have heard the Learned Counsel for the parties and perused the relevant evidence on record. Three Wills have been placed on record which are Exhibits P-1 dated February 14,1970, D1 dated July 25,1971 and P 4 dated June 30,1967. Execution of Wills exhibits P1 and P4 are not subject matter in dispute; rather the is admitted case of the parties that both these Wills were executed by Bhag Singh. On perusal of Exhibit P4 dated June 30,1967, it comes to light that Bhag Singh was totally disgusted with his progeny as by this Wills, he disinherited the plaintiffs as well as the defendants and choose to give his property to the State.

But, it appears later on with a change in circumstances or on a account of some persuasion. Bhag Singh executed another Will on February 24.1970 (Exhibit P-1). This Will is a registered document and is duly proved by S/Shri Behari lal and Ram Lal Pabbi, Municipal Commissioners of the town which is attested by Shri Jagan Nath Advocate as Notary Public. Will Exhibit D-1 dated May 25-1971 has not been found to be a genuine document by both the courts on account of various suspicious circumstances surrouding the execution of this Will. The trail Court has taken into consideration: (i) the strained relations between the deceased and Kartar Singh Since 1947, (ii) deceased had been living separately till his death, and the persons attesting the Will had in fact, been procured and (iii) execution of Will is shrouded in mystery and even their deposition is self-contradictory, Lastly, Will is not written by a petition writer, but by clerk of Shri Jagan Nath, Advocate. The trial Court has commented adversely against these witnesses for various reasons.

No doubt, in the present case attesting witnesses to Will (Exhibit D-1) had come and deposed in support of the execution of the Will, but all the same their evidence when closely examined, leaves much suspicion in the mind with regard to its due execution. The Apex Court in its judgment reported as H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, has examined the various aspects withregard to proof of Will, Nature of evidence and its appreciation. The relevant observations are as under:-

However, there is one important feature which distinguishes Will from other documents. Unlike other documents the Will speaks from the death, of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the WW was signed by in the testator at the relevant time was a sound and disposing state of mind, that h" understood the nature and effect at the dispositions and put his signatureto the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the round and disposing state of the testator''s mind and his signatures as required by law, Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just in dicated. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator''s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the Will may otherwise indicate that the said disposition may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such supicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator.

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Apart from the suspicious circumstances above referred to in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits, if it is shown that the propounder has taken a proinent part in the execution of the Will and has received substantial benefits under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in lonnection with Wills that present such suspicious circumstances that dicision of English Courts often mention the test of the satisfaction of judicial conscience. The test merely emphasizes that, in determining the question as to whether an instrument porduced before the Court is the last Will of the testator, the Court is deciding a solemn question and it must be fully satisfied that, it had been validly executed by the testator who is no longer alive.

The above mentioned observations again have been cited with a approval by the Apex Court in a case reported as Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, .

Evidence when examined in the light of exposition of law as per judgments, supra leaves no manner of doubt that execution of Exhibit D1 is indeed shrouded in mystery. Such a Will does not thus, satisfy the judicial conscious. The courts below, in view of various suspicious circumstances surrounding execution of the Will (Exhibit D1), however, over-zealously termed such a Will as a "forged document This expression used by the Courts bellow, in fact, is uncalled for. This is an over-statement and lacks judicial restraint. Otherwise the conclusions of the court below is apt.

In Regular Second Appeal No. 1357 of 1979, the appellant has challenged the compromise dated June 5,1974 on the ground that Shrimati Harbans Kaur did not receive any advantage/benefit of compromise and thus, said compromise was not lawful and ought to have been ignored by the Court while adjudicating the matter in dispute. The appellant filed an application under Order 23 Rule 3 of the CPC to the effect that parties have compromised and the same may be reduced in writing which accordingly was recorded and thereafter statment of the appellant was recorded on oath by the Additional District Judge, Faridkot on June 5,1974 who admitted it to be correct. The same statement is duly signed by her.

The present appellant, however, filed an application on May 14-1976 i.e. almost after 2 years; praying that the compromise may not be acted upon. The lower Appellate Court by a well reasoned order found no merit in the plea and dismissed the same vide order dated january 12,1979; The compromise was arrived at between the parties, reduced into writing and statement of the appellant was also recorded in token of its correctness who accepted it and put her signatures. There is no averment that it was under pressure and under mistaken She pelt satisfied for almost 2 years, besides the compromise was recorded by a Superior Judicial Officer of the rank of Additional District Judge. Objection taken that the same is not in conformity with the provisions of Order 23 Rule 3 Code of Civil Procedure, is also without any basis in view of the latest judgment of the Apex Court in case reported as Byram Pestonji Jariwala v. Union Bank of India and others, 1992 (1) RLR 403.This appeal thus, also without any merit In this view of the matter, I dismiss both the appeals. Parties, however, to bear their own costs.