Rani vs Balbir Kaur and Others

J.V. Gupta, J.—This judgment will also dispose of Regular Second Appeal No. 3862 of 1986, as both the appeals have arisen out of one judgment of the Learned Additional District Judge, Bhatinda, dated September 8, 1987.

Balbir Kaur, plaintiff-respondent filed the suit for possession of the suit land claiming herself to the father''s sister of the deceased Mohinder Singh. According to her averments in the plaint, Mohinder Singh was murdered on May 17, 1982. The defendant, Rani, claimed a Will to have been executed in her favour from the said Mohinder Singh which according to the plaintiff was got executed under undue influence and by playing fraud. She and her husband Sandhura Singh and Madan Singh Sarpanch, after serving excessive drink fabricated the Will. His thumb-impression was taken making representation to lease the land for two years. However, the Assistant Collector, Mansa, on the basis of the said Will, mutated the land in favour of the defendant Rani on October 28, 1982. Despite the suit dated November 5, 1982, by plaintiff and the stay order dated November 8, 1982, the defendant sold a part of the land on November 9, 1982 in favour of defendant No. 2. According to the plaintiff, the said Will and the sale deed is against law and that the plaintiff was not bound by the same.

In the written statement filed on behalf of defendant No. 1, it was denied that Mohinder Singh was murdered by her and her husband. She denied that the plaintiff was the father''s sister of deceased, as alleged. It was also denied that Mohinder Singh was addicted to vices. She asserted that they used to serve Mohinder Singh and in lieu of services rendered by her, he executed the Will on February 5, 1982 Exhibit Dl, in her favour. Thus, the mutation was rightly sanctioned in her favour on the basis of the Will. She also pleaded that she was competent to alienate the property and had rightly done so. In the written statement filed on behalf of defendant No. 2, she took the plea that she was a bona fide purchaser for consideration.

The trial court found that the plaintiff were the legal heirs of Mohinder Singh, deceased, and were, thus, entitled to maintain the suit. As regards the execution and the validity of the Will, the trial court found that Mohinder Singh, deceased, had. executed a valid and genuine Will dated February 5, 1982, Exhibit Dl, in favour of Rani, defendant. Defendant No. 2 was held to be a bonafide purchaser for valuable consideration. In view of these findings, the plaintiffs suit was dismissed vide judgment dated April 10, 1985. In appeal the Learned Additional District Judge framed an additional issue vide order dated February 3, 1986, and sought report from the trial court. The additional issue was to the effect as to whether the disputed Will dated February 5, 1982, was the result of undue influence and fraud exercised upon Mohinder Singh, as alleged in paragraph 5 of the plaint and if so, to what effect. Vide report dated January 7, 1987, the trial court returned the finding on the said issue against the plaintiffs.

The Learned Additional District Judge after getting the said report of the trial court and discussing the evidence, came to the conclusion that neither Rani, defendant, lived with Mohinder Singh, nor she served him in any manner. She was present at the time of the execution of the Will. The due execution of the Willhad not been proved. Mohinder Singh, deceased, had absolutely no relationship with Rani, defendant, and, therefore, there could be no just reasons for Mohinder Singh to execute the Will in her favour. It was, therefore, held that the Will had either been executed under undue influence by Rani defendant, or it had come into existence as a result of fraud or misrepresentation that a lease deed was to be executed. According to the lower appellate court, there was massive evidence on the file to show that it was not a genuine Will. As regards the finding on the defendant being bona fide purchaser, the lower appellate court held that the land had been sold by Rani, defendant, during the pendency of the suit and so, defendant No. 2 could not be said to be a bona fide purchaser without notice. In view of these findings, the plaintiffs suit was decreed.

The Learned Counsel for the defendant-appellant submitted that the whole approach of the lower appellate court was wrong and illegal. The evidence of the scribe DW7, Balbir Singh and that of the Sub-Registrar, DW2, Deepak Kumar, has been ignored arbitrarily and illegally. In support of the contention, the Learned Counsel relied upon Sita Ram v. R.D. Gupta AIR 1981 Punjab & Haryana 83; and Ujagar Singh v. Chanan Singh AIR 1986 Punjab & Haryana 230. According to the Learned Counsel, the Will was duly validly executed by the deceased Mohinder Singh was duly proved by Sub Registrar, Deepak Kumar, DW2 & Balbir Singh, scribe, DW7, The Learned Counsel further argued that the Will was executed for the services rendered by Rani, defendant-appellant.

On the other hand, the Learned Counsel for the plaintiffs-respondents submitted that in the Will no description of the property as such was given. Reasons given therein for making the Will in favour of Rani, defendant, are non existent. It has been found as a fact by the lower appellate court that she never rendered any services to the deceased and that she was residing separately from him. Thus, argued the Learned Counsel, in view of these firm findings of the lower appellate court, no interference was called for in second appeal. Moreover, argued the Learned Counsel, DW4. Pritam Singh who is said to be one of the attesting witnesses of the Will, denied his signatures thereon. He was never got declared hostile. In any case, argued the Learned Counsel, there was non compliance of Section 63 of the Indian Succession Act and, therefore the evidence of the scribe and that of the Sub Registrar by making an endorsement on the Will did not prove the due execution of the Will or its validity as such. In support of the contention, the Learned Counsel relied upon M. L. Abdul Jabbar Sahib Vs. M. V. Venkata Sastri and Sons and Others, ; Gurnam Singh Vs. Smt. Ass Kaur and Others, ; Abinash Chandra Bidyanidhi Bhattacharjee Vs. Dasarath Malo and Others, and AIR 1939 117 (Privy Council) . The Learned Counsel also pointed out that the Will Exhibit Dl bore the signatures of Rani, defendant, who is a beneficiary thereunder and, therefore it itself is a suspicious circumstance as she took active part in execution of the said Will. The Learned Counsel also submitted that the judgments relied upon by the Learned Counsel for the appellant are distinguishable.

I have heard the Learned Counsel for the parties and have also gone through the relevant evidence on the record.

After discussing the entire evidence, firm findings have been recorded by the final court of fact that defendant Rani neither lived with Mohinder Singh, deceased, nor she served him in any manner. She was present at the time of the execution of the Will. Mohinder Singh, deceased, had no relationship with Rani, appellant, and, therefore, there could be no just reason for Mohinder Singh, deceased, to execute a Will in her favour. In any case, the execution of the Will was not free from undue influence exercised by Rani, appellant. According to the Learned lower appellate court there was massive evidence on the file to show that it was not a genuine Will. The findings arrived at are the ones which have been recorded after appreciating the evidence. At the most, even if it is a case where both the views are possible and one view has been taken by the lower appellate court, it itself does not provide any ground for interference in second appeal with findings of fact.

In Ujagar Singh''s case (supra), it was observed that it will be a question of fact in each case to be determined as to under what circumstances and in what manner the scribe acted and attested the Will or not. So, as regards the present case, even if the evidence of the scribe DW7, Balbir Singh and DW2 Deepak Kumar, Sub Registrar, is considered, the execution of the Will is not free from suspicious circumstances as found by lower appellate court.

In these circumstances, I do not find any merit in this appeal and the same is dismissed with no order as to costs.

As regards Regular Second Appeal No. 3862 of 1987, the sale was made on November 9, 1988, whereas the injunction order was issued on November 8, 1989. In any case, since the sale took place after the filing of the suit and after the passing of the ad interim injunction, defendant No. 2, could not be held to be a bona fide purchaser.

Consequently, this appeal also fails and is dismissed with no order as to costs.