Mit Singh and Others vs Malkiat Singh and Others

Prem Chand Jain, J.—In order to appreciate the controversy, a short pedegree table may be noticed:

Ran Singh was the owner of the land in dispute. He died on 24th January, 1971. The Plaintiffs and Defendant No. 1 are surviving heirs of Ran Singh and are entitled to inherit, his estate in equal shares. After the death of Ran Singh, his entire property was mutated in the name of Malkiat Singh, Defendant No. 1, on the basis of an unregistered will purporting to have been executed by Ran Singh in hit favour As the Defendant was contesting the claim of the Plaintiffs on the basis of the will, the Plaintiffs filed a suit (out of which this appeal has arisen) for declaration that they are the owners to the extent of 5/6th share in the land in dispute, measuring 185 Kanals 2 Marias In the alternative, a decree for possession of their share was claimed The Plaintiffs averred that no will was executed by Pan Singh in favour of Malkiat Singh and the alleged will in his (Malkiat Singh''s) favour was a forged document.

The suit was contested by the Defendants, inter alia, on the grounds that a valid will was made by Ran Singh on 18th January, 1971, while he was of a sound, disposing mind, that Malkiat Singh had become owner of the entire property left by Ran Singh deceased and that the Plaintiffs had no lotus standi to file the suit. OB the pleadings of the parties, the following issues were framed:

Whether the plaint has not been properly verified ? If so, to what effect ?

Whether the Plaintiffs No. 2 to 4 have no locus standi to sue ?

Whether the property in suit is ancestral ?

Whether Ran Singh deceased executed a valid will ?

If Issue No. 3 is proved, whether the deceased was competent to alienate the properly in suit by will ?

Relief.

The parties led evidence.

On consideration of the entire evidence, the trial Court decided issues No. 1, 2 and 4 against the Defendants; while issue No. 1, was decided against the Plaintiffs. As a result of the finding on issue No. 4, the Plaintiffs were granted a decree as prayed for.

Feeling aggrieved from the judgment and decree of the trial Court, Malkiat Singh, Defendant, preferred an appeal, which was heard by the learned Additional District Judge, Kapurthala, who reversed the finding of the trial Court on issue No. 4. Consequently, the judgment and decree of the trial Court were set aside and the suit of the Plaintiffs-respondents was dismissed with costs throughout Dissatisfied from the judgment and decree of the learned Additional District Judge, the present regular second appeal has been filed by the Plaintiffs.

At the outset, it may be observed, as it is well-settled proposition of law, that ordinarily a finding arrived at by the appellate Court on consideration of the entire evidence, oral and documentary, being a finding of fact, is not disturbed in second appeal, and this was the main stand taken on behalf of the Learned Counsel for the Respondent But of scrutiny of the entire evidence and the circumstances. I find that the learned Additional District Judge has based his conclusions on pure conjecture and as a result thereof, his finding which is claimed to be a finding of fact, stands vitiated.

The only issue with which we are concerned, is Issue No. 4, and Mr. H.L. Sibal, Senior Advocate, Learned Counsel for the Appellants, contested the finding of the learned Additional District Judge on this issue. It was contended by him that the execution of the will was shrouded with suspicion and that the Defendants had miserably failed to prove by cogent and convincing evidence that the testator was of sound and disposing mind at the time of the making of the will and that the document was the last will and testament of the deceased. In support of his contention, the Learned Counsel relied on the following circumstances:

(i) That no reference at all has been made to Mit Singh Plaintiff, who admittedly is the other son of the deceased, in the will:

(ii) That no reason at all has been given as to why Mit Singh, the other real son of the testator, was being deprived of his natural right of inheritance;

(iii) That prominent part was played by Malkiat Singh, legatee, who admittedly was present at the time of the execution of the will;

(iv) That the language of the document itself shows that it was not dictated by the testator, as hat been deposed by the attesting witnesses;

(v) That the will was not got registered;

(vi) That the scribe has not been produced;

(vii) That Ran Singh was of 80 years of age and died after six days of the execution of the will;

(viii) That the thumb-impression on the will, copy of which is Exhibit D. 1 (the original was placed on the record of the Revenue file and has been marked as Exhibit PA) is smudged and is not decipherable and no attempt was made to get it compared with any admitted thumb-impression of Ran Singh, and (ix)

That the two attesting witnesses have not put their thumb impressions under the text alleged to have been dictated by the testator when sufficient space was available and that they have put their thumb-impressions on one side.

After giving my thoughtful consideration to the entire matter, I find considerable force in the contentions of Mr. H.L. Sibal, Senior Advocate, Learned Counsel for the Appellants It is correct that the learned Additional District Judge has adverted to some of the circumstances, but a bare perusal of his judgment would show that instead of seeing the cumulative effect of all the circumstances, he has disposed them or individually, as a result of which he has fallen in patent error in reversing the finding of the trial Court on this material issue. If the cumulative effect of the aforementioned circumstances is seen, then the only irresistible conclusion that can be arrived at is that the alleged will is not valid.

It may be observed at this stage that before me, the relationship of the Plaintiffs as given in the pedigree table in the earlier part of the judgment was not disputed with the result that incase the execution of the will on the basis of which Malkiat Singh claims the entire property of the deceased, is not proved the Plaintiffs would be entitled to inherit 5/6th share while Malkiat Singh Defendant No. 1 1/6th share in the estate left by the deceased. However, in order to prove the will, Malkiat Singh Defendant No. 1 has examined Karam Chand D.W. 1 and Hari Singh D.W. 2 who have testified that Ran Singh deceased had executed will, copy Exhibit D. 1, dated 18th January, 1971, in favour of Malkiat Singh and that after admitting its contents to be correct, he had thumb marked the same. When cross examined, Karam Chand D.W. 1 has admitted that Malkiat Singh had arrived at the spot after the will was mostly written. Hari Singh D.W. 2 has also conceded in his cross-examination that Malkiat Singh was standing nearby at some distance when the will was being scribed. Malkiat Singh when appeared as D W. 3 has completely denied his presence and in cross-examination has stated that at the time when the will was written, he was not present there-Thus from the testimony of the two attesting witnesses, it is fully established that Malkiat Singh was present at the time of the execution of the will and that the latter has made a false statement to the effect that he was not present at the time of the execution of the will.

Now a reference to the will Exhibit D. 1 would show that no mention has at all been made about Mit Singh Plaintiff, who besides Malkiat Singh, is the other son of Ran Singh deceased In the will reference has been made to the daughters only and no reference has at all been made to Mit Singh Plaintiff, who, now admitledly, is the son of the deceased. The matter does not rest here, as Malkiat Singh Defendant show his complete ignorance about his relationship with Mit Singh Plaintiff. He does not accept Mit Singh even to be his brother. If the Defendant could even go to the length of not accepting Mit Singh to be his brother, then there could be no hesitation on his part in getting a will executed in his favour as has been done in the instant case. A father without any rhyme or reason would not leave out his one son from, getting due share in his property. Thus, in my view, this circumstance alone that no reference has at all been made to Mit Singh Plaintiff nor has any reason been given as to why he was being deprived of his natural right of inheritance, is sufficient to warrant a finding that the will is invalid. However, the other circumstances are again very weighty for establishing the invalidity of the will. As has come in the earlier part of the judgment, the legatee was present at the time of the execution of the will and a justifiable inference can be drawn that he must have exercised his undue influence and pressure on the testator; otherwise there was no reason for him to have denied his presence at the time of the execution of the will Further, the will was not got registered. In the ordinary course, this circumstance might not nave been very important as it is not very essential to get a will registered, but in the instant case, this circumstance is of considerable importance. Ran Singh deceased owned land at Basti Pirda, Gszipur and Sangal Sohal in District Jullundur and at Gaumpur in District Kapurthaki. It is written in the will. Exhibit D 1, that the deteased bad executed a will earlier and got the same registered on 16th September, 1970 bequeathing his entire land in favour of Malkiat Singh and that that will was superseded by another will executed by him as a sequel to coercion and intimidation employed by Mehnga Singh, his son-in-law, who allegedly carried him away forcibly and got the will executed on 19th October, 1970. Thus, it is quite clear that Ran Singh knew that an important document like a will should be registered. Now in the instant case, no plausible explanation is forthcoming as to why the present will was not got registered. Ran Singh deceased had travelled all the way from his village to Jullundur for the purpose of execution of the will and it would have been more consistent with the natural course of events to have got the same registered.

Further, Malkiat Singh has failed to examine the scribe of the will. As is evident from the judgment of the trial Court, many adjournments were granted to Malkiat Singh Defendant to produce the scribe but for the reasons best known to him, the scribe was not produced, with the result that a just inference can be drawn against him that if the scribe had been produced, he would not have supported the Defendant''s version. The scribe was an important witness. He would have produced his register which would have shown the entry regarding the will and also the signatures/thumb impression of the attesting witnesses and the testator. At this stage, it would be pertinent to observe that the two attesting witnesses have not put their thumb impressions under the text alleged to have been dictated by the testator when sufficient space was available as it is the general practice that thumb impressions of the attesting witnesses are put under the text when space it available. Thus, as earlier observed, the non-registration of the will, in the circumstances of the case, creates an element of deep suspicion about its genuineness.

Moreover, the alleged thumb impression of Ran Singh on the will is smudged and not decipherable and no attempt was made to get the same compared with any admitted thumb impression of Ran Singh. Ran Singh on the date of execution of the will was 80 and in the circumstances of the case, especially when he died only after six days of the execution of the will, a fair inference can be drawn that he was not possessed of full mental faculties and physical fitness so as to form a rational judgment regarding the import of the bequest and its effect and go to Jullundur and execute a will. Even the language of the will shows that it could not be dictated by Ran Singh, an illiterate zamindar.

Thus, as a result of the aforesaid discussion, I find that Ran Singh deceased was completely under the control of the legatee who managed to get the things done the way he liked and that he did not execute a valid will in favour of Malkiat Singh and that Exhibit D 1 is not the real last will of Ran Singh testator. Consequently the finding of the learned Additional District Judge on Ibis issue is reversed and that of the trial Court restored.

Before parting with the judgment, it may be observed that the Learned Counsel relied on Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, ; Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, and Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and Others, , in which guidelines arc laid down for determining the validity of a will and it is after keeping in view those guidelines that 1 have scrutinised the evidence and have come to the aforesaid conclusion.

For the reasons recorded above, I allow this appeal, set aside the judgment and the decree of the learned Additional District Judge dated 2nd September, 1975, and restore those of the trial Court. In the circumstances of the case, I make no order as to costs.

Appeal allowed.