Mukand Singh and Others vs Maghar Singh and Others

Jawahar Lal Gupta, J.—The dispute in this case relates to the estate of Harnam Singh He had 1/3rd share in agricultural land measuring 126 Kanals 16 marlas. On August 13, 1975, he executed a Will in favour of the plaintiff-respondents, who are the grand-sons of his father''s brother. Soon after the execution of the Will, Harnam Singh passed away on September 17, 1975 Apprehending that the defendant-appellants are likely to alienate the property, the plaintiff respondents instituted a suit for declaration to the effect that they are the owners in possession of the land and they prayed for a perpetual injunction restraining the defendants from selling, mortgaging or alienating the property in any way to any third party.

The suit was contested by the defendant-appellants. However, in the written statement filed on their behalf, no relationship with Harnam Singh was claimed. The learned trial Court framed the following issues : -

(1) Whether Harnam Singh, deceased, executed a valid Will in favour of the plaintiffs? OPD

(2) Whether the suit is not maintainable as alleged?

(3) Relief.

Finding that the Will as genuine document, the suit was decreed. The appeal of the defendant-appellants having been dismissed by the learned lower Appellate Court, they have come in the present second appeal to this Court.

I have heard Shri T.S. Sangha, for the appellants and Shri Sarjit Singh for plaintiff-respondents. Shri Sangha contends that the Courts below have acted with material irregularity in accepting the Will to be a genuine document. According to the learned counsel, it is surrounded by highly suspicious circumstances, namely (i) it is not a registered document; (ii) it is not signed by the testator; (iii) it is not even scribed by a regular scribe, but has been written by a person who belonged to the village of the testator; and that the testator had expired soon after the execution of the Will. The claim is controverted by Shri Sarjit Singh, who submits that the Will executed by Harnam Singh is perfectly natural as it is customary with the land-holders to keep the property in the hands of family members and that the Courts below have rightly upheld the Will.

It is the admitted position that Harnam Singh was being looked after by the plaintiff respondents It is also not denied and in fact it had been establithed on the record that Harnam Singh was suffering from partial paralysis. In such a situation, it is not unlikely that he may not have been physically in a position to go to the office of the Sub-Registrar for execution and registration of the Will. As such his action in getting the Will scribed from a neighbour Kartar Singh Lambrdar, cannot be said to be unnatural. The Will has been executed in favour of persons, who were admittedly looking after him. Still further, it is the admitted position that Harnam Singh was in joint possession of the property with the plaintiff-respondents. Taking the totality of circumstances into consideration as also the fact that the oral testimony of Kartar Singh, the scribe of the Will and Gurdial Singh, a marginal witness has been accepted by both the Courts below, I find no ground to interfere with the finding of fact.

The appellants have tried to even contest the thumb impression and it was alleged that the Will has been actually thumb marked by Maghar Singh and not by Harnam Singh. This matter has also been considered in detail by the learned lower Appellate Court. On appreciation of the evidence of the Experts, the Court has taken a plausible and reasonable view. I find no infirmity therein.

Taking the totality of circumstances into consideration, no case for up-setting the concurrent findings of facts recorded by both the courts below is made out. The appeal is wholly lacking on merit. It is dismissed with no order as to costs.