Sarla Devi and Another vs Munshi Ram and Others

R.S. Pathak, C.J.—This is a plaintiffs'' second appeal arising out of a suit for possession of land.

Himal Chand had two wives, Jai Devi and Janki Devi. Bhagat Ram, Defendant No. , 1 and Jagroo Singh, Defendant No. 2, are the descendants of Himal Chand through Jai Devi, Bhagat Singh being a son and Jamna being a son''s son. Munshi Ram Plaintiff No. 1, Sarla Devi Plaintiff No. 2, Kalan Plaintiff No. 3, Nanak Chand Plaintiff No. 4 and Soman Plaintiff No. 5 are the descendants from Janki Devi. Munshi Ram is a son, Nanak Chand is a daughter''s son and the remaining Plaintiffs are a daughter''s daughter and a son''s daughter. On November 10, 1964, Himal Chand executed a will leaving his property to the Defendants alone. The will was registered on the same day. Himal Chand died on January 2, 1965.

The Plaintiffs filed a suit, out of which the present appeal arises, for possession of the land alleging that the will was void as it had been obtained by the Defendants by the exercise of undue influence. Other pleas were also raised with which we are not concerned at the present stage. The trial court decreed the suit in part, holding that part of the property covered by the will was ancestral property and, therefore, could not be the subject of the will. In regard to that property Munshi Ram, Plaintiff No. 1, got a decree for possession. As regards the remaining part of the property, he held that it was the self-acquired property of Himal Chand and could be disposed of by the will, and accordingly as to that he dismissed the suit. An appeal was filed by the Plaintiffs and the appeal has been dismissed. The present appeal has been filed by Sarla Devi Plaintiff No. 2 and Kalan Plaintiff No. 3.

Learned Counsel for the Appellants contends that the will is an un-natural document inasmuch as the descendants through one wife have been excluded altogether, even though they include a son, Munshi Ram. It is urged that as the Defendants lived for many years with the deceased they were in a position to influence Himal Chand and to procure the will in question. In any event, it is said, the will is invalid because the circumstances in which the deceased and the Defendants were placed would attract Section 61 of the Indian Succession Act and the will must be held void. It is urged that there was no reason why the testator should have excluded his son Munshi Ram from inheriting a share in the property. It is pointed out that Munshi Ram and the testator were on visiting terms, and the contrary recital in the will that Munshi Ram was not on good terms with the testator indicates that the testator was under the influence of the Defendants and did not know what he was doing. It is also pointed out that D.W. 2 Narain Dass has admitted that, although Himal Chand was capable of protecting his interest at first, later on he could not do so. That, learned Counsel urges, shows that Himal Chand was not in a sound disposing mind at the time when he executed the will.

After hearing learned Counsel for the parties at length, it seems to me that the appeal must fail. From the evidence it appears clear that Himal Chand had provided for Munshi Ram by way of a separate residence and mess. There is also evidence to show that Munshi Ram had received twelve Kanals of land from his uncle. Munshi Ram resided separately from the testator, even though that residence was separated only by a court-yard. There is no positive evidence indicating why the testator separated Munshi Ram from himself in residence and mess, but the circumstance goes to support the recital in the will that Munshi Ram was not on good terms with his father. No other explanation has been suggested to indicate why the two lived apart. Over a long period of years the testator continued to live with the Defendants alone, and it is admitted that the Defendants looked after and served the testator. Significantly, the will has left the property to a son and a son''s son, and if it has ignored the female members of the family whether they are his daughter''s daughter or his son''s daughter, that is in keeping with the sentiment popular in this land. It will be noticed that not only have the female members through Janki Devi been ignored in the will, the female members through Jai Devi have also been ignored. The circumstances mentioned above explain why the will has left the property to the Defendants alone.

The contention that the testator was not in a sound disposing mind may also be noticed. Considerable reliance has been placed in this regard on the statement of D.W. 2, Narain Dass, that Himal Chand was capable of protecting his interest at first but later he could not do so. It is urged that the only inference permissible from the statement is that at the time when Himal Chand executed the will he was not conscious of what he was doing. That inference does not necessarily follow. The statement of the witness is ambiguous and equivocal. The statement does not make clear what was the point of time from which Himal Chand became incapable of protecting his interest. There is nothing to suggest that when the will was executed he was in such mental condition. It will be noted that he died two months after executing the will.

It is also pointed out by learned Counsel for the Appellants that the Defendants were intimately involved with the execution of the will-a document from which they benefited absolutely-and, therefore, the will should not be accepted. In this connection, it is said, D.W. 1 Chhunka Ram was called by Defendant No. 1 Bhagat Singh serving as an attesting witness to the will. There is no reason to suspect any ulterior motive in Bhagat Singh''s conduct. It is said that having regard to the old age of the testator-he was 80 years old- at the time of the execution of the will and the circumstance that he was illiterate it should be concluded that undue advantage was taken of him by the Defendants. It is also alleged that the will was executed in secrecy as the Plaintiffs never came to know of the execution for some time. In my opinion, these circumstances do not by themselves detract from the validity of the will.

As regards the contention that Section 61 of the Succession Act is attracted, I am of opinion that the circumstances set out above do not support that case at all. It was a natural document disposing of the property in accordance with a sentiment natural to the testator and having regard to the surrounding circumstances of the case.

Reliance has been placed on Pehlad Singh v. Surjan Singh 1969 D.L.T 587. The case is distinguishable. There, the relations between the Plaintiff and the testator were not strained, as in the present case, nor had the Plaintiff been given land by any one else. There is also the circumstance in that case that the court relied on the execution of a contemporaneous document assuring a certain amount by way of maintenance to the beneficiaries in case the will was found to be invalid.

The appeal dismissed with costs.