Lakhbir Singh vs Binder Singh and Others

N.K. Kapoor, J.—This is plaintiffs regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed against the judgment and decree dated 19.3.1990 was dismissed whereas the appeal of Pritam Kaur and another was accepted resulting in dismissal of his suit in toto.

Gamdur Singh was owner of 1/6th share in land measuring 80 Kanals 1 Maria which was acquired by the union of India and a compensation of Rs. 3,81,494.65p was deposited in the Court of Additional District Judge, Bathinda, as compensation amount to be paid to the heirs of deceased Gamdur Singh, Gamdur Singh died on 30.4.1987 leaving behind plaintiff and defendants No. 5 to 10 as his heirs. Plaintiff laid claim to the compensation amount on the basis of registered will dated 9.6.1981. This claim was challenged by the defendants who filed separate written statements i.e. one written statement by defendants No. 1 to 4, second written statement by respondents No. 5,6 and 8 and third by respondent No. 7, Defendants in their written statements denied the material averments made in the plaint specifically challenging the execution of the will dated 9.6.1981 in favour of the plaintiff.

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

(1) Whether Yadvinder Singh is competent to act as guardian and next friend of plaintiff and competent to file the suit ? OPP.

(2) Whether Sh. Gamdur Singh executed a valid will dated 9.6.1981 in favour of the plaintiff regarding his properties as alleged in para No. 5 of the plaint ? OPP.

(3) Whether plaintiff is entitled to get disputed amount on the grounds alleged in the plaint ? OPP.

(4) Whether plaintiff is son of Gamdur Singh? OPP.

(5) Whether Gamdur Singh executed a valid will dated 28.4.1987 in favour of defendants No. 1 to 4 in respect of his property, if so to what effect ?OPD.

(6) Whether order dated 16.11.88 passed by Sh. J.P. Gupta the then Ld. Addl. District Judge, Bathinda, operates as res judicate between the parties ? OPD.

(7) Whether suit in the present form is not maintainable ? OPD.

(8) Whether suit is mala fide ? OPD.

(9) Whether plaintiff is estopped by his act and conduct from filing the suit? OPD.

(10) Relief.

On the basis of evidence led by the parties, trial Court on material issue pertaining to execution of will dated 9.6.1981 held that the same was not duly executed nor it is free from suspicion. The plaintiff was, however, held to be an illegitimate son of Gamdur Singh and thus entitled to succeed along with other legal heirs of Gamdur Singh by virtue of Section 16 of the Hindu Marriage Act. This way it was held that the plaintiff was entitled to 1/6th share in the estate of Gamdur Singh. This judgment and decree was challenged by Lakhbir Singh-Plaintiff-as well as Pritam Kaur and Shavinder Kaur defendants No. 6 and 8, which appeals were disposed of by the Additional District Judge vide judgment and decree dated 21.5.1991.

Before the appellate Court, parties did not assail the finding of the trial Court in respect of issues No. 1, 5, 6, 7, 8 and 9 and accordingly these issues were affirmed. Challenge was made to the finding of the trial Court in respect of issues No. 2, 3 and 4. The lower appellate Court examined the evidence led by the parties in support of their contentions. On reappraisal of evidence, the lower appellate Court found no good ground to differ with the conclusion arrived at by the trial Court in respect of issues No. 2 and 4. However, while examining the effect of alleged second marriage of Gamdur Singh with Sukhwinder Kaur, it was held that there is no sufficient evidence on record that ceremony essential to prove valid marriage was ever performed. Since there was no marriage, off spring from such a union do not get any right in the property of Gamdur Singh. The Court accordingly held that since essential ceremonies of second marriage of the deceased with Sukhwinder Kaur have not been proved, so there is no question of attraction of provisions of Section 16 of the Hindu Marriage Act qua the offspring of the alleged marriage arises. Accordingly, finding of the trial Court on issue No. 3 was reversed, thereby dismissing the suit of the plaintiff in toto.

Plaintiff seeks reversal of the judgment and decree of the Courts below terming these to be untenable in law. According to the counsel, lower appellate Court has appraised the whole case from a wrong angle which has resulted in perverse finding on issues No. 2 and 3. In fact, the lower appellate Court having accepted that will Exhibit P/1 dated 9.6.1981 was scribed, signed and registered on 9.6.1981, yet errored in law in ignoring this document merely on account of some discrepancies in the deposition of witnesses. According to the counsel, such like discrepancies are natural in truthful witnesses on account of time gap. Even the so called suspicious circumstances highlighted by the Courts below are too insignificant to be construed as casting a doubt upon the free will of Gamdur Singh who in his own words expressed his desire to bequeath his property in favour of his son Lakhbir Singh. Since the will had been duly proved by examining Babu Lal, an attesting witness, scribe and the Sub Registrar and also the fact that deceased never thought of revoking the will till his death in 1987 ought to have been considered as a determining factor in favour of the validity of the will by the Courts below. The conclusion of the lower appellate Court in respect of issue No. 3 also is unsustainable in law. Even if it be taken that Gamdur Singh could not marry Sukhwinder Kaur, yet the fact is fully proved on record that both of them lived as husband and wife till his death in the year 1987. Plaintiff is, admittedly, son of Gamdur Singh - even if he be held to be illegitimate son.

Learned counsel for the respondents at the outset has challenged the maintainability of the regular second appeal on the short ground that this being finding of fact is not amenable to the jurisdiction of this Court u/s 100 of the Code of Civil Procedure. Even on merits of the controversy, it was urged by the counsel that the Courts below on appreciation of evidence has come to the conclusion that the execution of the will is not proved. Not only this, the will is shrouded by suspicious circumstances as noticed by both the Courts. In view of such material on record, there is hardly any scope for interference especially u/s 100 of the Code of Civil Procedure.

I have heard learned counsel for the parties and perused the relevant documents referred to by the respective counsel. Plaintiff has laid claim on the basis of will dated 9.6.1981. To prove this document, he examined the scribe Babu Lal, an attesting witness, and Sub Registrar who registered this document. The trial Court while evaluating the evidence of these witnesses held that their deposition does not inspire confidence. Their statements are contradicted in material particulars. Thus, despite proof of signature of Gamdur Singh and registration of document, the trial Court came to a firm finding that the execution of the will has not been duly proved. It has further been held that mere registration of will cannot be taken as proof of due execution. The lower appellate Court had in detail dilated upon the deposition of material witnesses, namely, Sh. Babu Lal, Sh. H.D.P. Garg and scribe Kartar Singh. In its own words it held s under :-

"...Babu Lal was not present when the will was scribed rather even his signatures are with different ink which he had not explained on the will, though the other witness Nachhattar Singh had signed with the same ink. It appears that Babu Lal who happened to roan in the Tehsil premises and as observed is a professional identifier...."

So the learned appellate Court by appraising the evidence of Babu Lal had come to this conclusion that he cannot be termed as an attesting witness of the will in a legal sense. Similarly, while discarding the statement of DW2 Kartar Singh, it was observed that there were various interpolations in the register maintained by him. No only this, there was no reasonable explanation as to why he did not obtain the signatures of Gamdur Singh in his register. Dealing with the suspicious circumstances, it was held that though the deceased had a wife Pritam Kaur and a daughter Shavinder Kaur, defendants No. 6 and 8 respectively, yet no provision had been made in the will Exhibit P.1.

Similarly, the trial Court while holding that due execution of the will was not proved highlighted that the recital in the will that some property had already been given to Pritam Kaur and his daughter Shavinder Kaur is incorrect as there is no evidence on record to prove that any such property has ever been given to them.

The apex Court in case reported as H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, had the occasion to examine in detail the matter with regard to proof of will, nature of evidence and the suspicious circumstances to be dispelled by the propounder before the document set up is taken to be the last wish of the propounder. It has been held that apart from proving the due execution of the will, it is incumbent upon propounder to dispel all the suspicious circumstances surrounding the execution of the will by leading cogent and satisfactory evidence. It is on the basis of evidence led that Court will reach to a conclusion whether the will is surrounded by suspicious circumstances or the same is an act of fiee will of the testator. Such a document is to satisfy the ''judicial conscience'' of the Court. In the present case, except for proof of signatures of Gamdur Singh, no other evidence is consistent. Various suspicious circumstances surrounding the will as noticed by the Courts below have not been dispelled. No plausible explanation has been put forward as to why Pritam Kaur and Shavinder Kaur, legally wedded wife and daughter of Gamdur Singh respectively, have been excluded arid no provision has been made for them. Thus, I find no merit in the plea of the counsel for the appellant that the will has been duly executed and is free from suspicion. Even otherwise, both the Courts after minutely examining the deposition of witnesses have returned a concurrent finding holding that the will is shrouded by suspicious circumstances and this being finding of fact is not amenable to interference u/s 100 of the Code of Civil Procedure. Finding of the Courts below in this regard are consequently affirmed.

As regards the counsel''s contention that factum of marriage of Gamdur Singh with Sukhwinder Kaur being not in dispute, even the illegitimate children from such a marriage are protected and entitled to inherit along with legitimate heir has merit. It has been rightly urged by the counsel for the appellant that even in the written statement filed by defendants No. 1 to 4 all that has been stated is that Sukhwinder Kaur is not a lawfully wedded wife of Gamdur Singh. It has been stated that Gamdur Singh married Sukhwinder Kaur in the year 1974 during the life time of Pritam Kaur and that during the subsistence of first marriage of Sukhwider Kaur with Gamdur Singh was null and void being in contravention of mandatory provisions of Section 5(i) of the Hindu Marriage Act, 1955. The fac-tum of secoad marriage is proved on record. Since the first marriage had not been dissolved, such a marriage is void u/s 5(i) of the Hindu Marriage Act, 1955. Section 16 of the Hindu Marriage Act, 1955, confers legitimacy upon the children of void and voidable marriages. Section 16 of the Act reads as under:-

"16 (1) Notwithstanding that a marriage is null and void u/s 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

(2) Where a decree of nullity is granted in respect of a voidable marriage u/s 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in sub-section (1) of sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity u/s 12, any rights into the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his being the legitimate child of his parents."

Somewhat similar proposition came up for consideration in case reported as Smt. Nirmala and Others Vs. Smt Rukminibai and Others, wherein also the factum of second marriage was disputed. Presumption of marriage on account of long cohabitation was made and it was held that in case of long cohabitation of parties, formality and custom for valid marriage would also be presumed to have been performed. In the present case too, as per evidence on record, it has been proved beyond doubt that Gamdur Singh married with Sukhwinder Kaur in the year 1974 and both of them lived as husband and wife till Gamdur Singh''s death in the year 1987. Since Gamdur Singh''s marriage with Pritam Kaur had not been dissolved, second marriage with Sukhwinder Kaur was void in terms of section 5(i) of the Hindu Marriage Act. Offsprings of such a marriage are entitled to inherit the property of Gamdur Singh deceased as per section 16 of the Act. This way the appellant along with his sister Khushpreet Kaur and Manpreet Kaur succeed along with Pritam Kaur, Shavinder Kaur and Chatin Kaur, defendants No. 6, 8 and 5 respectively.

Resultantly, I partly accept the appeal, set aside the judgment and decree of the Additional District Judge and affirm the judgment and decree of the Trial Court, thereby entitling the plaintiff to get compensation to the extent of 16th share in the compensation amount of Rs.3,81,494.65p. No order as to costs.