Mohinder Kaur vs Smt. Kuldeep Kaur and Another

Rakesh Kumar Garg, J.—This is Plaintiff''s second appeal challenging the judgment and decrees of the Courts below whereby her suit for

declaration that she was entitled to inherit the estate of Mai Singh (since deceased) to the extent of 1/3rd share and a decree for joint possession,

was dismissed.

As per the averments, Mal Singh (father of the Appellant and Respondents) was owner in possession of the suit property and upon his death on

21.10.2000, Appellant and Defendant/Respondents No. 1 and 2 being his legal heirs were entitled to the entire property of Mal Singh to the extent

of 1/3rd share each. However, the Defendant-Respondents claimed ownership of the entire property of Mal Singh on the basis of Will dated

19.3.1999 executed by him in their favour. The Plaintiff-Appellant has challenged the aforesaid Will alleging that the same was not by the free

consent of the testator and the same might had been procured by misrepresentation and under undue influence and therefore, the present suit was

filed for a decree for declaration to the effect that the Plaintiff was entitled to inherit the estate of deceased Mal Singh to the extent of 1/3rd share

and for passing a decree for joint possession of the house and other properties mentioned in the plaint.

The Respondents filed written statement and admitted that Mal Singh was father of the Plaintiff and Defendants and was owner of the suit

properties. It was further pleaded that one Mohar Singh, nephew of Mal Singh, by fraud and undue influence had obtained a Civil Court decree

against Mal Singh with respect to the agricultural land. Mal Singh challenged the said Ciyil Court decree during his life time on the ground of fraud,

misrepresentation and undue influence. Mal Singh was annoyed with the Plaintiff on account of the fact that she was siding with Mohar Singh

against whom Mal Singh had filed a civil suit challenging the aforesaid decree with respect to the agricultural land. It was further pleaded that in

view of the execution of the Will in their favour, the Plaintiff-Appellant was left with no right or interest in the suit property belonging to Mal Singh.

Thus, dismissal of the suit was prayed for.

The Plaintiff filed replication controverting the pleas taken in the written statement and reasserting the contents of the plaint.

From the pleadings of the parties, the following issues were framed:

Whether the Plaintiff being the legal heir of the deceased is legally entitled to inherit the estate of deceased Mal Singh to the extent of 1.3rd share

as mentioned in the plaint? OPP

If issue No. 1 is proved, whether the Plaintiff is entitled for joint possession of the house, gun and the other properties mentioned in the para No.

1 (b&c) of the plaint?OPP

2-A Whether the deceased Mal Singh had executed a valid and legal registered Will dated 19.3.1999 in favour of Kuldeep Kaur etc., as alleged?

OPD

Relief.

Both the parties adduced oral as well as documentary evidence in support of their respective assertions in the case.

After hearing the arguments, the trial Court dismissed the suit filed by the Plaintiff-Appellant vide judgment and decree dated 3.10.2006.

Aggrieved from the aforesaid judgment and decree, the Appellant filed an appeal which was also dismissed by the Lower Appellate Court vide

impugned judgment and decree dated 17.11.2008.

Still not satisfied, the Plaintiff-Appellant has filed the present appeal challenging the judgment and decrees of the Courts below submitting that

the following substantial questions of law arise in this appeal:

(i) Whether the genuineness of the Will can be proved in the absence of examination of attesting witness?

(ii) Whether the testimony of Sub Registrar is sufficient to prove the genuineness of the Will to the satisfaction of mandatory provisions of Section

63 of the Indian Evidence Act?

(iii) Whether the scribe can be treated as a witness and the effect of scribing the signatures on the part of scribe can be identified to be of the same

status as that of the attesting witness?

(iv) Whether disinheritance amongst heirs of equal degree is valid for no valid reason for exclusion of one of the legal heirs and the Will excluding

one of the legal heirs, can be said to be genuine?

(v) Whether the Will can be said to be genuine when the cause/ground of disinheritance of one of the legal heirs shown in the Will, is not proved

and such a Will is shrouded by suspicious circumstances, can be held to be valid?

(vi) Whether the Will shrouded by suspicious circumstances can be held to be valid and not ignored?

(vii) Whether in the absence of testimony of attesting witness, the Will fails for want of proof?

In support of his appeal, learned Counsel for the Appellant has vehemently argued that in the present case, the Will dated 19.3.1999 has not

been proved in accordance with law as none of the attesting witnesses of the Will has been produced to prove the execution of the Will and

therefore, the judgment and decrees of the Courts below cannot be sustained. It is the further case of the Appellant that scribe and the Sub

Registrar, who had endorsed the Will in question cannot be treated as attesting witness of the Will to satisfy the mandatory provisions of Section

63 of the Indian Evidence Act and thus, the Will in question cannot be held to be proved in the absence of testimony of attesting witnesses and

thus, the suit of the Appellant is liable to be decreed as prayed. In support of his case, learned Counsel for the Appellant has placed reliance upon

the judgments reported as M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, , N. Kamalam (Dead) and Another Vs.

Ayyasamy and Another, , Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, and Jamuna Devi Vs. Sarbati Devi through L.Rs., .

I have heard learned Counsel for the Appellant and perused the impugned judgment and decrees.

The judgments cited by the learned Counsel for the Appellants are not applicable on the facts of the case. In Janki Narayan Bhoir''s case

(supra) the only witness who was examined had not supported the Will but the High Court treated the scribe (who had not attested the Will) as

attesting witness and in those circumstances, the Hon''ble Apex Court held that scribe cannot be teated as attesting witness. In Jamuna Devi''s case

(supra), this Court relied upon Janki Narayan Bhoir''s case (supra) but noticed the judgments of this Court in Lila Dhar Vs. Smt. Badho and

Another, , Kartar Kaur and Another Vs. Bhagwan Kaur and Others, , Mohinder Kaur v. Harbajan Singh 2002(1) RCR 134 (P&H), Lai Singh

and Anr. v. Bant Singh and Ors. AIR 1983 Punjab and Haryana 384 and Sita Ram v. R.D. Gupta and Ors. AIR 1981 Punjab and Haryana 83,

wherein it is held that the Sub Registrar or the scribe of the Will can be treated as a witness to prove the due execution of the Will, if there is no

other suspicious circumstance but did not rely upon these judgments observing that there was a suspicious circumstance. In N. Kamalam''s case

(supra), the scribe had identified himself as scribe of the document.

In the present case, admittedly testimony of Gurbachan Singh, one of attesting witnesses of the Will, which was recorded in a previous suit, has

been tendered into evidence in this case. Not only this, the scribe and the Sub Registrar, while appearing as D Ws have stated that the testator had

signed/thumb marked the Will in question in their presence and in the presence of other witnesses and they have also signed the same in their

presence and in the presence of testator. Moreover in a registered Will there is a strong presumption in favour of valid execution of the Will.

Thus, keeping in view the totality of the circumstances and relying upon the judgments of this Court in Lila Dhar''s & Kartar Kaur''s case

(supra) wherein it has been held that the Sub Registrar or the scribe can be treated as a witness to prove the due execution of the Will, if there is

no other suspicious circumstance, I find no merit in the argument raised by the learned Counsel for the Appellant. The statement of Gurbachan

Singh, who has since expired and whose statement was recorded in the previous civil suit, can be read as evidence in this case in view of the

provisions of Section 63 of the Indian Evidence Act and thus, no fault can be found with the findings of the Courts below which have held that the

Will in question was validly executed in favour of the Respondents.

In view of the aforesaid discussion, no substantial question of law arises in this appeal.