Mohinder Kaur vs Mahain Singh and Others

S.S. Sodhi, J.—The controversy here is with regard to the validity of the will set up by respondent Mahain Singh the brother of Samund Singh deceased. This arises in the context of a contest between Mohinder Kaur, the divorced wife of Samund Singh and their two daughters Sawinder Kaur and Sukhwant Kaur on the one hand and Mahain Singh, brother of samund Singh on the other, with regard to the bank accounts left behind by the said Samund Singh in India. Samund Singh died in the United Kingdom on January 10, 1982.

It appears that Samund Singh deceased had left behind Rs. 60,000/ - in a Fixed Deposit Account with the Punjab National Bank, Rayya and another Rs. 11,590/ - in Saving Account 7112 with Punjab National Bank, Rayya, besides Rs. 2, 675/ - odd in Saving Account 38758 with the State Bank of India, Amritsar.

On August 24, 1982, Mohinder Kaur and her daughters applied for s Succession Certificate in respect of Rs. 11,590/ - odd with the Punjab National Bank, Rayya. During the pendency of this application, Mahain Singh, the brother of the deceased, on his part, moved the Court on October 9, 1982 for the grant of a Succession Certificate with regard to the two other accounts, namely Rs. 60,000/ - in the Punjab National Bank, Rayya and Rs. 2,675/ - odd in the State Bank of India, Amritsar, Both parties, of course, contested each others claim.

In the meanwhile, Mahain Singh also filed a suit for permanent injunction seeking to restrain Mohinder Kaur and her daughters from withdrawing any amount from the Rs. 60,000/ - account with the Punjab National Bank, Rayya, This was presumably necessitated by the fact that it was an ''Either or Survivor'' Account of the deceased with his wife Mohinder Kaur.

The trial court held in favour of the widow and daughters of Samund Singh deceased and consequently granted them the Succession Certificate, they sought, and also dismissed Mahain Singh''s suit for injunction. This was, however, reversed in appeal with the lower Appellate Court holding that Samund Singh deceased had executed a valid will in favour of his brother Mahain Singh and in terms thereof, he was entitled to all the money left behind by him in India. It was Mahain Singh thus, who was granted both the injunction and the Succession Certificate as prayed for by him.

It will be seen that the findings and the decision of the lower Appellant Court in favour of Mahain singh are founded upon the validity of the Will set up by him- indeed, the contest between the parties hinges upon this Will.

It is the case of Mahain Singh that his brother Samund Singh died unmarried and issueless. As regards, Mohinder Kaur, it was said that she was earlier married to one Kishan Singh and was later purchased by Samund singh for Rs. 1,000/ -. He is said to have taken her to Singapore from where, he sent on to England.

Further, according to Mahain Singh, his brother Samund Singh came to India in May, 1980 when he deposited Rs. 60,000/ - in the Punjab National Bank and handed over the pass book of this account to him saying that after him, this money and all his other property would come to him. In this behalf, a will, said to have been executed by Samund Singh in his favour on May 26, 1980, was also propounded by him.

Mohinder Kaur, on her part, claimed that she was the legally wedded wife of Samund Singh and that Surinder Kaur and Sukhwant Kaur were their two daughters and being Class-I heirs, they were entitled to succeed to the entire property of Samund Singh. The Will set up by Mahain Singh was branded as a fabricated document.

A reference to the material on record leaves no manner of doubt that Mohinder Kaur was indeed the legally wedded wife of Samund Singh deceased and Sawinder Kaur and Sukhwant Kaur are their daughters. The documents brought from England, in this behalf, by the Local Commissioner, Mann Singh Assistant District Attorney, clearly establish that Samund Singh and Mohinder Kaur were husband and wife. A petition for divorce was filed in the competent court in England and a decree for divorce was granted. Later, after the death of Samund Singh, an application for probate and Letters of Administration in respect of the estate of Samund singh was also filed by his daughter Sawinder Kaur. In the face of this documentary evidence, it is no longer possible to hold otherwise than that Mohinder Kaur was the wife of Samund Singh and Sukhwant Kaur and Sawinder Kaur were their daughters. This being so, they would clearly be preferential heirs to the brother of the deceased- Mahain Singh.

Turning now to the Will, there are many aspects of it that cannot, but create doubt and suspicions about it. In the first instance, it deserves note that when the suit was filed by Mahain Singh on June 28, 1982 no reference was made in the plaint to any Will executed by Samund Singh deceased in his favour. It was only on December 1, 1982 that Mahain Singh filed an application for amendment of the plaint and then in the amended plaint filed by him, the Will was mentioned therein. In advertence being mentioned, in the application for the amendment of the plaint, as the reason for not having referred to it in the plaint earlier. When the matter came in evidence, however, a different version was deposed to namely; that after executing the Will Samund singh had handed over the Will to their relative Jarnail Singh and this Jarnail Singh did not inform him till sometime in October 1982. In this behalf, it would be pertinent to note that the evidence on record shows that information regarding the death of Samund Singh was received by Mahain Singh and other relatives including the said Jarnail singh in February 1982. Jarnail Singh, when he came into the witness box, deposed that on receipt of information of the death of Samund singh, he informed Mahain Singh about the execution of the Will in his favour, which would clearly show that Mahain Singh had acquired knowledge of this Will before the filing of the suit. Non-mention of this Will in the plaint, as originally filed, is clearly a circumstance that has its own tale to tell.

Another significant circumstance, concerning the Will is the fact that it was an unregistered document. This assumes importance, in the context of the fact, that about four days before the execution of this Will, Samund Singh executed a registered mortgage of his land in favour of his brother Mahain Singh. Having given possession of his land to his brother only by registered mortgage deed, it does indeed appear unnatural that he would execute a Will and leave it unregistered.

What is more, the will has been scribed by P.W.2 Amar Nath, who, on his own showing, did not know English or Punjabi and had studied only upto Vth Class. He was not a qualified deed writer, either. The most glaring aspect is that such as could not have been written and scribed by a person who had studied only upto the 5th class and was one who had no prior experience or knowledge of drafting of wills. This aspect alone suffices to render the genuiness of the will not safe to rely upon.

The other circumstance of note is the description of Samund Singh deceased, in the Will, as being unmarried and consequently no reference therein to his wife or children. No explanation is forthcoming to account for this when he was in fact married and had children.

It will be seen, therefore, that the circumstances surrounding the execution of the Will, in the overall context of the evidence on record amply warranted and justified the finding of the trial Court holding the Will to be not genuine. A reading of the judgment of the lower Appellate Court would, on the other hand show that it was mere conjectures and surmises that were restored to in upsetting the conclusions so rightly drawn by the trial Court on sound premises.

Taking thus an overall view of the totality of the circumstances of the case and the evidence on record, it cannot, but be held that the Will propounded by Mahain Singh was neither Valid and genuine. This being so, in the presence of the widow and daughters of Samund Singh, his brother Mahain Singh clearly has no claim to the estate of his brother Samund Singh deceased.

Before parting with this case, mention must be made of the plea raised with regard to the Fixed Deposit Account of Samund Singh deceased in Punjab National Bank, Rayya, namely; that it was later changed to an ''Either or Survivor'' Account. The argument being that the evidence led in this behalf was not worthy of reliance and further that being a divorced wife, Mohinder Kaur was not entitled to succeed to the estate of Samund singh. Both these aspects are now rendered merely academic as there is no contest inter se between Mohinder Kaur and her Daughters and admittedly, the widow and daughters are preferential heirs as compared to the brother to the brother of the deceased.

In the result, the suit of the plaintiff- Mahain Singh is hereby dismissed as also his application for Succession Certificate while Mohinder Kaur and her daughters are granted the Succession Certificate as prayed for by them.

In the result, the order, judgment and decree of the lower Appellate Court are hereby set aside while those of the trial Court restored and affirmed. The petitioner shall be entitled to their costs throughout in these proceedings.