Prito @ Pritam Kaur and Others vs Baldev Singh and Others

M. Jeypaul, J.—CM No. 6348-C of 2009 is filed seeking exemption from filing certified copy of the will dated 1.9.1994, copy of death certificate of Smt. Bhagwanti and copy of certificate of immersion of Ashes at Haridwar. CM No. 6349-C of 2009 has been filed under Order 41 rule 27 of the CPC seeking permission to place on record copy of the will dated 1.9.1994, death certificate of Smt. Bhagwanti and copy of certificate of immersion of Ashes at Haridwar.

Heard the submissions made on either side.

Firstly, it is found that the appellants have sought to file Xerox copy of the will dated 1.9.1994 and Xerox copy of the death certificate of Smt. Bhagwanti. These Xerox copies cannot be exhibited, that too at the second appellate stage.

No reason has been assigned as to why these documents could not be procured and produced either before the trial Court or before the first appellate Court. No steps also had been taken by the appellants to examine the author of the certificate of immersion of Ashes at Haridwar issued to the appellants.

In my considered view, these Xerox copies of the documents have been projected late in point of time only to delay the proceedings further. Therefore, these two applications stand dismissed as wholly unsustainable.

RSA No. 2131 of 2009:

Defendants 6 to 9 have preferred the present appeal aggrieved by the judgments and decrees granted by the Courts below in favour of the plaintiffs.

The suit was filed praying for declaration that the plaintiff Baldev Singh (respondent No. 1 herein) was owner in possession of the suit land and also for consequential relief of permanent injunction.

It is the case of the plaintiff that Surinder Pal Singh son of Gurmeet Kaur who had been to Sachkhand Gurudwara Hazoor Sahib about 20 years prior to the institution of the suit was not heard of Gurmeet Kaur all-through her life waited for the arrival of her son Surinder Pal Singh who was not heard of by the family members. Plaintiff had been living with Gurmeet Kaur and looked after her. Gurmeet Kaur having realized ultimately that Surinder Pal Singh would not return, bequeathed her estate in favour of the plaintiff by virtue of will dated 1.9.1994. Based upon the said will, the plaintiff has prayed for the said relief.

Defendants 6 to 9 who are the appellants herein contended in their written statement that the suit was bad for non-joinder and mis-joinder of parties. They have also submitted that there was no cause of action for filing the suit. They contended that Pakhar Singh firstly married Smt. Bhagwanti. Smt. Bhagwanti died leaving behind defendants 6 to 9 as her children. Thereafter, Pakhar Singh married Gurmeet Kaur and procreated Surinder Pal Singh. Having asserted that they were the only legal heirs of Surinder Pal Singh, they sought for dismissal of the suit.

Both the Courts below held that the plaintiff has established that Surinder Pal Singh was not heard of for 20 long years prior to the filing of the suit and therefore, there arose a legal presumption that he was legally dead. Referring to the evidence of DW-2, it was held that defendants 6 to 9 could not establish that they were legal heirs of deceased Pakhar Singh, the father of the deceased Surinder Pal Singh. Both the Courts below having relied upon the evidence of PW-1 Sharanjit Singh and the evidence of PW-2 Baldev Singh plaintiff held that Gurmeet Kaur executed the said will in her sound disposing state of mind and bequeathed the property in favour of Baldev Singh. Accordingly, both the Courts below rejected the case of defendants 6 to 9 and decreed the suit of the plaintiff.

Learned counsel appearing for defendants 6 to 9 - the appellants herein, would contend that the Courts below failed to take note of the fact that the plaintiff as well as the attesting witnesses to Exhibit P-1 will were facing criminal prosecution for forging the said will. Two wills had come into existence but no explanation was put forth as to how two wills had been executed bearing same date. Gurmeet Kaur had died within 10 days of the execution of the will. Such suspicious circumstances had not been properly adverted to by the trial Court, it is further contended. He would also submit that even before mutation took place, Gurmeet Kaur had chosen to execute the will. It was lastly submitted that the death of Surinder Pal Singh was not established by the plaintiff.

Per contra, learned counsel appearing for the plaintiff would submit that the defendants 6 to 9 could not establish that they were legal heirs of Pakhar Singh. Therefore, they cannot legally challenge the will executed by Gurmeet Kaur wife of Pakhar Singh and mother of Surinder Pal Singh. The criminal prosecution initiated as against the attesting witnesses and the plaintiff was stayed, facilitating the present civil case to go on till it reaches its finality. Only two copies of the will prepared had come into existence. The attesting witnesses have established the execution of the will by Gurmeet Kaur in her sound disposing state of mind. There are no suspicious circumstances which throw any doubt on the execution of the will, he would submit.

The pendency of the criminal case as against the attesting witnesses and the plaintiff cannot be a ground to reject the material evidence adduced before the Civil Court to establish the execution of the subject will. In fact, criminal prosecution was stayed sine-die facilitating the termination of the civil case filed by the plaintiff on the strength of the very same will.

The plaintiff has established the execution of the will by Gurmeet Kaur in sound disposing state of mind by examining PW-1 Sharanjit Singh, one of the attesting witnesses to the subject will Exhibit P-1. The Courts below have relied upon his evidence and come to a decision that the execution of the will by Gurmeet Kaur in her sound disposing state of mind stood established.

As rightly contended by the learned counsel for the plaintiff, two wills bearing the same date had not been exhibited. It is only two copies of the will which had come into existence for the convenience of the parties.

Defendants 6 to 9 had not disputed the fact that the whereabouts of Surinder Pal Singh who had gone on a pilgrimage were not known to his mother and other family members for 20 long years prior to the institution of the suit. The will was executed on 1.9.1994 and the suit was laid as on 24.4.1995.

The plaintiff had also deposed to the circumstances under which Surinder Pal Singh went missing and the compulsion on the part of his mother Gurmeet Kaur to execute the will. Therefore, the Courts below have rightly raised presumption that Surinder Pal Singh was legally dead.

It is found that the defendants 6 to 9 could not establish that they were the legal heirs of Pakhar Singh inasmuch as the marriage of their mother Smt. Bhagwanti with Pakhar Singh was not established even as per evidence of DW-2. As rightly pointed out by the learned counsel for the plaintiff, when defendants 6 to 9 were not the legal representatives of Pakhar Singh, they cannot legally challenge the subject will projected by the plaintiff.

It is in evidence that Gurmeet Kaur died within 10 days of the execution of the will. The evidence of plaintiff Baldev Singh is very natural that Gurmeet Kaur waited till the last moment for the arrival of her son but unfortunately, she had to convince herself that her son had died and therefore, she had to dispose of the property of her son in favour of the plaintiff before her death. The execution of the will within 10 days of the death of Gurmeet Kaur does not give rise to any suspicion surrounding the execution of the will. In view of the above, I find that the Courts below have rightly decided the issues involved in the suit. Further, no substantial question of law also has arisen for determination in the present appeal. Therefore, the appeal stands dismissed.