Mehar Singh and Another vs Mohinder Kaur and Others

V.K. Jhanji, J.—This will dispose of Regular Second Appeals No. 1949 and 1950 of 1979.

Both the Regular Second Appeals are by the defendants directed against the judgment and decree of the Courts below whereby suit filed by the plaintiff for joint possession of land in dispute, has been decreed in favour of the plaintiffs and against the defendants.

In brief, the facts are that one Waryam Singh was the owner of the property in dispute. For better understanding of the facts, it would be useful to have a glance on the pedegree table which is as under :-

Waryam Singh (deceased) | -------------------------------------------------------------------------- | | | | | Joginder Singh Kehar Singh Mehar Singh Charan Kaur Kartar Kaur (Son) (Son) (Son) (Daughter) (Daughter) | Mohinder Kaur (Wife) | ---------------------------------------------- | | | Amarjit Singh (Son) Charanjit Singh (Son) Karamjit Singh (Son) 4. Mohinder Kaur wife of Kehar Singh filed one suit whereas Amarjit Singh, Charanjit Singh and Karamjit Singh, sons of Kehar Singh filed another suit. In both the suits, the claim of the plaintiffs was that Waryam Singh, during his life-time, executed a valid Will dated 17.10.1973 in their favour. According to the plaintiff, vide Will in question, Waryam Singh bequeathed land measuring 8 kanals in favour of Mohinder Kaur whereas out of the remaining land, 2/5th was given to Joginder Singh and Mehar Singh sons of Waryam Singh and 3/5th to sons of Kehar Singh. Suit was mainly contested by Joginder Singh and Mehar Singh sons of Waryam Singh and Charan Kaur, daughter of Waryam Singh by saying that the Will set up by the plaintiffs is not a validly executed Will. Defendants alleged that Waryam Sing had executed Will dated 28.10.1973 in their favour.

From the pleadings of the parties, as many as 5 issues were framed by the trial Court. Issue No. 3 was in regard to Will dated 17.10.1973 alleged to have been executed in favour of the plaintiffs. Issue No. 4 related to Will dated 28.19.1973 alleged to have been executed in favour of the defendants, Joginder Singh and Mehar Singh. For the purpose of evidence, both the suits by the plaintiffs and Will dated 17.10.1973 was accepted. Will executed in favour of the defendants was not accepted. In appeal by the defendants, judgment and decree of the trial Court has been affirmed by the first Appellate Court. This is the second appeal by the defendants.

It has been contended by the learned counsel for the defendants that not only the Will in question is shrouded by suspicious circumstances but has also not been executed in accordance with the requirement of Clause (b) of Section 63 of the Indian Succession Act. In order to point out the suspicious circumstances, counsel has referred to Will dated 17.10.1993 and has also read the statement of witnesses examined by the plaintiff particularly the evidence of scribe, PW-1 Mohinder Pal Puri, attesting witnesses and PW-2, Karam Singh. At the time of hearing of the appeal, no representation has been made by the plaintiff.

After hearing the learned counsel for the defendants and on going through the record. I am of the view that the appeals deserve to succeed. It is now well settled that initial onus to prove the execution of Will is on the propounder. The presence of suspicious circumstances makes the initial onus heavier and, therefore, in cases where the circumstances attended upon execution of the Will excite the suspicion of the Court, the propounder must remove all the legitimate suspicions before the Court accepts it to be the last Will of the testator. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances, that the test of satisfaction of judicial conscience has been evolved. The Court is called upon to decide a solemn question and by reasons of suspicious circumstances, the Court has to be satisfied fully that the Will has been validly executed by the testator. In the present case, the Will is alleged to have been executed on 17.10.1973 whereas the testator died on 30.10.1973. There was not much time lapse between the death of the testator and the execution of Will. A reading of the plaint filed in both the suits shows that the property owned by the testator was agricultural and situated in village Daffar and is described by Khasra numbers. In the Will, neither the land has been described by Khasra numbers nor it is mentioned that how much land the testator owned. No reason whatsoever has been given for excluding the daughters though Waryam Singh, apart from three sons, had left behind two daughters. It has not been explained why land measuring 8 kanals was being given to Mohinder Kaur wife of Kehar Singh particularly when it has been proved that Waryam Singh and Kehar Singh owned land in equal shares. Kehar Singh was owner by way of gift in his favour by Arjan Singh, real brother of Waryam Singh. Arjan Singh, who was issueless, had gifted his share to Kehar Singh. Perusal of Will, Exhibit P-1 shows that the space between the line and the size of the script becomes larger when it goes towards the bottom and thumb impression of attesting witnesses and the testator do not appear on the bottom of the page but are in the margin on the left side. It may be observed that in this part of the country, most of the Wills are not signed by the testator or witnesses in the margin on the left side but towards the end of the script. No explanation has been given by the scribe as to why the practice well established, was not followed and a departure in that regard was made. From the placing of the thumb impression on the document, it appears to me that the testator never intended to give effect to the writing as a Will. The Courts below have not taken into consideration the aforementioned suspicious circumstances and there being no explanation from the side of the plaintiffs, Will dated 17.10.1973 cannot be said to be the last Will of the testator.

Consequently, Regular second Appeals No. 1949 and 1950 of 1979 are allowed and the judgment and decree of the Courts below are set aside. As a result, the suit of the plaintiff shall stand dismissed with no order as to costs