Naranjan Singh and Others vs Mukhtiar Singh and Others

Jaswant Singh, J.

The plaintiffs are in second appeal assailing the concurrent findings returned by both the Courts below, whereby their suit for declaration for claiming 2/3rd share in the property left behind by their uncle-Kundan Singh, who was unmarried and issueless, was dismissed by the learned Sub Judge 1st Class, Muktsar, vide judgment and decree dated 27.02.1984; and the findings affirmed while dismissing the appeal of the plaintiffs by the learned Additional District Judge, Faridkot, vide judgment and decree dated 24.04.1986.

In brief, the facts are that Kundan Singh was unmarried and issueless and at the time of his death on 19.09.1978, left behind his real brother Inder Singh-defendant as the only natural legal heir. Plaintiff No. 1-Naranjan Singh is son of Suhail Singh, who is the step brother of the deceased Kundan Singh. Sadhu Singh-plaintiff No. 2 is the son of step sister of Kundan Singh. The mutation of inheritance regarding the property of Kundan Singh measuring 161 Kanal 2 Marlas was effected in favour of Inder Singh. The plaintiffs filed a suit on 09.09.1981 claiming the ownership of suit land measuring 107 Kanal 8 Marlas being 2/3rd share out of the total joint land of 161 Kanal 2 Marias based on unregistered Will dated 22.08.1978 allegedly executed by their uncle Kundan Singh.

The learned trial Court dismissed the suit of the plaintiffs by recording a finding on Issue No. 2 that the alleged unregistered Will dated 22.08.1978 was not proved as it was surrounded by many suspicious circumstances and, therefore, was not held to be proved. The relevant paragraphs Nos. 13 and 14 be read as under:--

"13. Now adverting to the facts of the present case, no doubt the scribe and marginal witnesses of the will deposed that the will was executed by Kundan Singh. But the will is shrouded by various suspicious circumstances which the plaintiffs have failed to dispel. The will Ex. P1 is alleged to have been executed at Taran Tarn District Amritsar. Admittedly Kundan Singh testator was resident of Nurpur Kirpal Ke Tehsil Muktsar. The land in dispute is also situated in Tehsil Muktsar. There is no evidence on the record that the testator lived in Village Gahri Tehsil Taran Tarn. It is not even the case of the plaintiffs that Kundan Singh resided with Sadhu Singh at Village Gahri. Rather from the death certificate Ex. P3 it is clear that at the time of death, the testator was living at village Nurpur Kirpal Ke. Even Naranjan Singh plaintiff is not definite that testator lived in village Gahri. According to him they i.e. plaintiffs, defendants and testator resided at Nurpur Kirpal Ke. Since the land in dispute is situated in village Nurpur Kirpal Ke and the testator also lived in village Nurpur Kirpal Ke there appears to be no reason for Kundan Singh to travel such a long distance simply to execute the will. This circumstance that the will was executed at a far off place from the residence of testator shroud the will with suspicion and the plaintiffs have failed to remove the same.

Secondly, the will was executed at Taran Tarn in Tehsil office but strangely enough the same was not got registered. True the will is not compulsory registrable document but in the present case the will has been executed at considerable distance from the resident of the testator therefore had the will been registered it would have been a strong circumstance to prove the presence of the testator and other witnesses at the alleged time and place of execution of the will. Admittedly both the PWs are not residents of Village of the testator. Both the PWs belong to village Gahri Tehsil Taran Tarn. Ordinarily, persons of confidence are associated by the testator to attest the will. As observed above Kundan Singh was resident of village Nurpur Kirpal Ke Tehsil Muktsar. It is therefore rather surprising that they would have travelled such a long distance simply to arrange for the witnesses in order to execute the will which could easily be done at Muktsar and all these circumstances further shroud the will with suspicion which the plaintiff has failed to remove.

Admittedly, the will is entered at last page of the register of the petition writer. The register was not signed by the Tehsildar though it bore his office stamp. It is very easy to incorporate a document on the last page of the register. It therefore becomes obvious as to why the will was executed at Taran Taran and not at Jhubal though village Gehri falls in Sub Tehsil Jhubal where admittedly there are also document writers and Sub Registrar''s office. It therefore, appears that no deed writer at Jhubal was available to forge the will and therefore the services of Pirthipal Singh deed writer at Taran Tarn were attained as the last page of his register was found blank. The will therefore, cannot be said to be executed by a regular deed writer and the plaintiffs have failed to remove this suspicious circumstance also. Further admittedly plaintiffs are not legal heirs of Kundan Singh deceased. According to the ordinary rule of succession Inder Singh would have inherited the land in dispute after the death of his real brother Kundan Singh. As already discussed above, it is not the case of the plaintiffs that Kundan Singh lived with them. Rather from the death certificate Ex. P3 it is clear that at the time of death, Kundan Singh was living with his brother Inder Singh. Thus there appears to be no reason for Kundan Singh to deprive Inder Singh of his property and gave the same to Naranjan Singh and Sandhu Singh plaintiffs with whom he never resided and who were not his natural heirs. The fact that the will is in favour of both the plaintiffs and defendant Inder Singh shows that this has been purposely done in order to give a colour of naturalness. In these circumstances the will cannot be said to be natural and reasonable one. Sadhu Singh one of the legatees also took active part in the execution of the will. No doubt, Hari Singh denied that Sadhu Singh was present at the time of execution of the will but in his statement before the Sub Registrar Ex. D1 he has clearly admitted that Sadhu Singh one of the legatees was present. Taking of prominent party by the propounder in execution of the will is generally treated a suspicious circumstance attending the execution of the will. In the present case as well Sadhu Singh is proved to be present at the time of execution of the will. The marginal witnesses of the will belong to the village of Sadhu Singh and it is therefore clear that Sadhu Singh one of the propounders took prominent part in the execution of the will and the plaintiffs have also failed to dispel this suspicious circumstance attending the execution of the will. It thus follow from the above discussion that the execution of the will is shrouded by various suspicious circumstances discussed above which the plaintiff have failed to remove. The plaintiffs have therefore failed to prove the due execution and genuineness of the will and it therefore cannot be said to be the last testament of Kundan Singh."

The learned lower Appellate Court also upheld the findings while re-appreciating the evidence in Paras 8 and 9, which read as under:--

"8. In the present case, the execution of the will Ex. P.1 is shrouded in suspicious circumstances. The deceased at the time of execution of the will is stated to be 80 years old. As is obvious from the death certificate Ex. P.3 he died on 19.9.78. The deceased was a resident of village Nurpur Kirpalke in Tehsil Muktsar. However, the will Ex. P.1 was executed at Taran Taran. According to entry in the death certificate, the deceased had died after prolonged illness. The defendant had also led evidence to show that prior to his death he was unable to move about. It is thus highly doubtful that deceased, a few days prior to his death, went to Tarn Taran to execute the will. In case the deceased wanted to make his will he could have simply done so at Muktsar which was a Sub Division/Headquarter and where regular deed-writers as well as the office of the Sub Registrar was located. It is thus beyond my comprehension as to why he should go all the way to Taran Taran to get the will executed. Another suspicious circumstance is that he did not get the will registered when he had gone all the way to Taran Taran and the office of the Sub Registrar was located there. Further, both the attesting witnesses were mere strangers to him. The deceased would not have left the execution of his will in the hands of complete strangers.

Though the will was got scribed from a regular deed-writer but it was the last entry in his register even though the will was only executed in the month of August 1978. The Deed Writer had also not obtained signatures of the Sub Registrar in his register to show that it was the last entry. Apparently thus the entry about the will could have been easily inserted in the register of deed-writer in an ante date. Kundan Singh''s father had also two wives. He and respondent-defendant are from the same mother. In the absence of any strong reasons he would not have though of depriving his real brother of the property, which was to go to him as natural heir, more so, when it has not been proved that the deceased was living with the plaintiffs and they were rendering any service to him. The very fact that the deceased died after only a few days of the execution of the will and had died after prolonged illness is a strong circumstance which rule out the possibility of his going to Taran taran for execution of the will on 22.8.78. It thus only appears that the will was fabricated by the plaintiffs with the connivance of the scribe and the witnesses. There is not even any reliable evidence to show that it was thumb marked by the deceased and none else. The execution of the will is thus shrouded by various suspicious circumstances with which the plaintiffs had failed to dispel. The learned Trial Court thus had rightly held that the execution and genuineness of the will had not been proved and thus it can not be held to be the last testament of Kundan Singh. I, therefore, affirm the findings of the learned Trial Court on issue No. 2."

After hearing learned Counsel for the appellants-respondents, this Court finds no perversity in the findings arrived at on the basis of evidence adduced on record raising any substantial question of law.

In view of the above, the present appeal stands dismissed.