Sardara Singh and Others vs Atma Singh and Another

N.C. Jain, J.—This appeal has been filed by defendant Nos. 2 to 4 against the judgments and decrees of the courts below decreeing the suit of the plaintiff for a declaration to the effect that he is owner-in-possession to the extent of 1/2 share in agricultural land measuring 72 Bighas 15 Biswas comprised in various khasra numbers given in the plaint. The land is situated in village Ballopur Tehsil Rajpura. In order to appreciate the controversy between the parties, a few facts may be noted.

Mehar Singh deceased was the owner of the entire land measuring 72 Bighas 15 Biswas. He had two sons, that is, Atma Singh plaintiff and Jiwa Singh defendant No.1. Defendant Nos. 2 to 4 got mutation of 34 Bighas 13 Biswas of land and one house in their favour on the basis of a will dated 24.7.1978 registered on the same day. Since mutation was sanctioned, the plaintiff challenged the Will as well as the mutation and claimed 1/2 share out of land measuring 72 Bighas 15 Biswas situated in village Ballopur. The case of plaintiff Atam Singh was that Mehar Singh deceased was an old-man having weak eye-sight, suffering from various diseases of fits etc, and he did not know between good and bad. He did not execute any will and that the same was the creation of fraud and based upon mis-representation. In the written statement defendant Nos. 2 to 4 who are the grandsons of Mehar Singh deceased upheld the validity of the will by pleading that Mehar Singh was having sound and disposing mind. Mehar Singh deceased, it was claimed by defendant Nos. 2 to 4, executed a will and got the same registered without any pressure etc. On the pleadings of the parties, the following issues were framed.

Whether the Plaintiff is owner in possession of 1/2 share of the land in dispute ?OPP.

Whether Mehar Singh deceased executed a valid will dt.24.7.78 in favour of the parties ? OPP.

Whether the suit is not maintainable in the present form ?

Whether the defendants are entitled to compensatory costs ? OPP.

Relief.

Both the courts below have found that the will was surrounded by suspicious circumstances and that the plaintiff was owner-in-possession of 1/2 share of the land in dispute. Defendant Nos. 2 to 4 have preferred the present appeal.

Learned Counsel for the appellants has vehemently argued that the courts below have not recorded any finding on the point whether the Will was duly executed or not. It was further maintained that the deceased Mehar Singh was satisfied with the services of the defendants and being pleased with their services he executed the Will in favour of the appellants who are non-else but the sons of Jiwa Singh the other son of Mehar Singh ; Additional support was solicited by the counsel for the appellants from the factum of the registration of the will. In this respect, the learned counsel has cited case law that the registration of a Will does lend some support to its authenticity.

After hearing me learned counsel for the parties and having gone through the entire record, this Court is of the view that the appeal is meritless and the same must be dismissed. At the very out set, it is made clear that the Will pertains to 34 Bighas 13 Biswas of land only. The Courts below, in the view of this Court, have rightly held that the Will is surrounded by suspicious circumstances. In the Will it is mentioned that Mehar Singh had given 34 Bighas 13 Biswas of land to defendant Nos. 2 to 4 as that served him. On the other hand, it has come in evidence that Mehar Singh was living separately. Not only that, the land was being cultivated by Appellants father on Batai. These two facts lead to one and only one conclusion that Mehar Singh was not living either with the plaintiff Atma Singh who is one son or with Jiwa Singh defendant the other son or even with Appellants; In view thereof, the very bottom of the case of rendering of services to Mehar Singh is knocked out. Once no services were being rendered by one parry or the other, there is hardly occasion for meeting out special treatment to the grandsons. Moreover, Sardara Singh has submitted in his Statement on oath that the Will was in English. The fact of the matter is that it is in Gurmukhi. The registration or non-registration of the Will does not make any difference in the eyes of law. If the Will is upheld there would be inequitable distribution of land. Since both the Courts below have recorded concurrent findings of fact about the existence of suspicious circumstances, referred to above this Court is not inclined to interfere with the findings of fact which are hereby confirmed.

Before parting with the judgment, the argument of the counsel for the appellants to the effect that there is hardly any discussion of the statement of defendant Nos. 1 to 3 deserves to be noticed. It has been argued by the counsel that the due execution of the Will is proved by the statement of Shamsher Singh attesting witness of the Will and that the Will has been scribed by Budh Ram. It has further been argued that the version of the defendant has been supported by Surjit Singh DW.3 and Dalip Singh DW.4. After reading the statements, this court is convinced that since service to Mehar Singh by the defendants is not proved, this in itself is a good ground for not relying upon the interested testimony of the defendants.

In the light of the observations made above, this appeal is found to be devoid of any merit and the same is consequently ordered to be dismissed with no order as to costs.