Sadhu Singh vs Bhog Singh and Others

G.C. Mittal, J.—This may be read in continuation of my order dated 19.3.1981. By the aforesaid order, I directed the trial Court to send the Will in question to Finger Print Bureau, Phillaur to get the two thumb impressions of Bishan Singh affixed thereon, compared so that the authenticity of the Will could be found out. The trial Court complied with the direction and has forwarded to this Court a report of the Finger Print Bureau, Phillaur, which is marked as Exhibit C.I.A reading to the report shows that the two thumb impressions are identical and are of one and the same person. The following pedigree table would facilitate the matter.

The estate of Bishan Singh in dispute who had 1/3rd share the entire land developed from common ancestor Deva Singh. After Anokh Singh died, his wife Koti remarried Bishan Singh. It has come in evidence that after her remarriage, she gave birth to two children but both of them died in infancy. Bishan Singh is alleged to have executed a registered Will dated 6.2.82, in favour of Sadhu Singh who is his wife''s Pichhlag son but is also the son of his real brother. Bishan Singh died on 13.1.66 and soon thereafter, the present suit was filed by Malkiat Singh and Bhog Singh, the sons of his other brother, to claim inheritance to the estate left by Bishan Singh and disputed the Will set up by Sadhu Singh being not a valid documents. Sadhu Singh contested the suit and pleaded that the Will was duly executed and, therefore, the succession would be governed by the Will alone.

On the contest of the parties, several issues were framed and he only relevant issue, which survives for consideration is;

"Whether Bishan Singh made a valid Will in favour of Sadhu Singh, defendant?" After evidence was led, the trial Court came to the conclusion that it was proved on the record that the Will was duly executed. Consequently, by judgment and decree dated 23.6.71, the suit was dismissed. On plaintiff''s appeal, the learned Additional District Judge upset the findings of the trial Court and held that the Will was surrounded by the suspicious circumstances and consequently by judgment and decree dated 3.4.73, allowed the appeal and decreed the suit. This is Sadhu Singh''s second Appeal.

After hearing the learned counsel for the parties and keeping in view the report of the Finger Print Bureau. I am of the opinion that the lower appellate Court erred in law in not keeping in view the correct principles of law which resulted into an erroneous decision. The Will was attested by Puran Singh and Chet Singh. Puran Singh was Sarpanch of the village and was produced as D.W.1 and Chet Singh was lambardar who was produced as D.W.2 while Puran Singh wholly supported the due execution of the Will the sound disposing mind of the testator and the presence of Chet Singh lambardar the other attesting witness; there is slight inconsistency in the statement of Chet Singh and largely because of that the lower appellate Court has unnecessarily raised suspicion in coming to the conclusion that it was not a valid document. The salient facts of the case have to be kept in view on judging whether the so called suspicious circumstances are really worthy of notice or not. Sadhu Singh had been living with the testator since the time he came to his house along with his mother or her remarriage and was brought up and married by him. The evidence on the record and particularly the statement of D.Wsl and 2 show that Sadhu Singh beneficiary had been serving the testator which would be natural on the given acts of the case besides being his brother''s son. Since he had no other male issue, therefore, it was natural for him to demise his entire estate in favour of his wife''s son instead of leaving it to go to him as his brother''s son along with the plaintiffs who are sons from his second brother. If this is kept in view, then the statement of Chet Singh, attesting witness, that Sadhu Singh was wanting that the Will should be executed, only means that he wanted that the matter should be decided so that there is no trouble after the death. The suggestion of Sadhu Singh does not amount to either coercion or undue influence on the testator, or to show that the testator was not in a sound disposing mind at the time of the execution of the Will. If it was really that Sadhu Singh pressurized Bishan Singh, then he would not have gone to the extent if getting the Will registered or in any case, could have written another Will before his death because he lived for almost about four years after the execution of the Will. All these facts go a long way to show that what Chet Singh stated in cross examination was not such a matter as to raise on inference or conclusion of the Will being surrounded by suspicious circumstances. The lower appellate Court also erred in not accepting the Will merely because it was in a torn condition. I have seen the original Will on the record. It is true that the Will is torn but this is only due to the passage of time and is not attributable to gaining any advantage thereby. It appears to have been written in the normal course and the sub registrar made an endorsement in his own hand writing is as follows:

"Subject was read over to the testator, who heard the same, admitted the Will to be correct.

The aforesaid endorsement further makes the authenticity of the Will stronger. The lower appellate Court was further moved by the fact that the scribe of the Will was not produced. The requirement of law is that one of the attesting witness at least should be produced to prove the Will provided the attesting witness are available. The production of the scribe could have further corroborated the testimony of the attesting witnesses, but his non production would not mean that any inference has to be drawn against the beneficiary of the Will. The plaintiffs could have produced the scribe. Accordingly, this view of the lower appellate Court is also erroneous in law.

The lower appellate Court further erred in law in coming to the conclusion that since the Will is torn, therefore it amounts to revocation of the same by the testator. Firstly, the torn portion is not such which may make the Will either invalid or show that the same was revoked by the testator. Moreover, it is a registered document and normally it would be expected that it should be revoked by a registered document. No negative evidence could be produce to show that the Will was not revoked. Rather it as for the other side to show by some evidence that the Will had been revoked by the testator. Once the original Will Exhibit 0.1 has been produced and duly proved by the witnesses, I fail to understand as to how the lower appellate Court further proceeded to hold the copy of the Will exhibit D.1/A to be inadmissible so as to affect the ultimate decision of the case. The certified copy of the Will obtained from the office of sub-Registrar, was produced only to complete the torn portion of the Will so that the intention of the testator could be known. Accordingly, I am of the view that the lower appellate Court clearly fell in error of law on several matters and, therefore, seriously erred in law in reversion the well considered judgment of the trial Court. Since all the reasons given by the lower appellate Court are found to be illegal by me, I hereby reverse the findings of the lower appellate Court and hold that the execution of the Will is duly proved and the findings in this behalf recorded by the trial Court, are restored.

For the reasons recorded above, this appeal is allowed; the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. Since the parties are closely related, therefore, there will be no order as to costs.