Sat Pal Singh vs Smt. Harminder Kaur

V.K. Jhanji, J.—This order of mine will dispose of Regular Second Appeal No. 692 and 1793 of 1983.

In these regular second appeals, the dispute relates to the estate of Deva Singh son of Bogh Singh alias Bhola Singh who died on 2.7.1973. Harbans Singh claiming himself to be son of Deva Singh filed suit against Sunder Kaur for possession of land measuring 92 K. 12 M., details of which have been given in the heading of the plaint. He also claimed relief of permanent injunction restraining defendant from alienating the suit land. In the suit, it was claimed by the plaintiff that Sunder Kaur is not the legally wedded wife of Deva Singh and Will alleged to have been executed by Deva Singh in her favour was never executed by Deva Singh. Mutation sanctioned on 28.6.1974 in favour of Sunder Kaur on the basis of Will is wrong, illegal and ineffective against the rights of the plaintiff. The defendant contested the suit and challenged the locus standi of the plaintiff to file the suit as it was alleged that he is not the son of the deceased. She denied the allegation of the plaintiff that she is not the legally wedded wife of Deva Singh. She rather claimed that she was legally wedded wife of Deva Singh deceased and Deva Singh in his life time had adopted Satpal Singh and Sukhjit Kaur as his son and daughter respectively. She further stated that she lived with Deva Singh for 30/40 years and is his legally wedded wife and has always been treated as such by the relatives and inhabitants of the locality. Satpal Singh and Sukhjit Kaur filed application for being impleaded as defendants as they claimed themselves to be adopted son and daughter respectively of deceased Deva Singh. They were added as defendants Nos. 2 and 3 and they also filed written statement. They took similar pleas as those of defendant No. 1 i.e. Sunder Kaur. During the pendency of the suit, Harbans Singh died and his legal representatives i.e. the present plaintiffs were brought on the record vide order dated 23.1.1975 of the trial court.

On the pleadings of the parties, the trial court framed the following issues:

(1) Whether the plaintiff has locus standi to file the present suit? OPP

(2) Whether defendant Sunder Kaur is widow of and Satpal Singh and Sukhjit Kaur defendants are son and daughter respectively of Deva Singh deceased? OPD

(3) Whether Deva Singh deceased executed any valid Will in favour of Sunder Kaur defendant? OPD

(4) Whether the suit is liable to be stayed u/s 10 Code of Civil Procedure? OPD

(5) Whether the suit is properly valued for the purposes of court-fee and jurisdiction? OPD

(6) Relief.

Before the present suit was filed, one Buta Singh filed suit No. 40 of 1974 with regard to the estate of Jit Singh brother of Deva Singh deceased claiming 2/3rd share of the property belonging to Jit Singh. In that suit Sunder Kaur claimed property to the extent of 1/3rd on the basis of registered Will dated 29.6.1973 alleged to have been executed by Deva Singh. Both the suits were consolidated for the purposes of evidence. Suit relating to the property of Jit Singh was decreed by the trial court after holding that Buta Singh and Partap Singh are entitled to 2/3rd share of the estate of Jit Singh and Sunder Kaur was held entitled to 1/3rd share. Though Harbans Singh was a party to this suit but no appeal was preferred by the legal representatives of Harbans Singh and decision in that suit became final between the parties. It is worthwhile to mention that though in the suit filed by Buta Singh Partap Singh there was no issue with regard to Will dated 29.6.1973 set up by Sunder Kaur yet her claim to the extent of 1/3rd share in the property was decreed on the basis of the Will as is clear from Ex.D/ D and D/E, judgment and decree in that suit. The trial court dismissed the suit after holding that though Harbans Singh is not proved to be son of Deva Singh, Sunder Kaur defendant is entitled to succeed to the property of Deva Singh on the basis of registered Will dated 29.6.1973. Trial Court, however, found that Satpal Singh and Sukhjit Kaur are not proved to be adopted son and daughter of Deva Singh.

Being aggrieved of the judgment and decree of the trial court, legal representatives of Harbans Singh filed appeal before the first appellate court.

During the pendency of the appeal before the first appellate court, legal representatives of the plaintiff filed an application for amendment of the plaint under Order VI Rule 17 Code of Civil Procedure, where they sought to take additional plea that the land in dispute was allotted to Deva Singh in lieu of land left by him in Pakistan. The land left in Pakistan was originally granted to Bogh Singh as gallantry award in the military and Buta Singh, Partap Singh and Jit Singh where occupancy tenants u/s 15 of Punjab Colonization of Land Act, 1912 (hereinafter referred to as the Act). When the Hindu Succession Act came into force, the land in suit was coparcenery property and Harbans Singh got the land by way of reversion as Deva Singh died without any female heir of the Class I of Schedule to Hindu Succession Act or male heir claiming through such heir. The property in dispute being co-parcenery, Deva Singh had no power to make a Will with regard to the property. The amendment was allowed by the first appellate court and the plaint was allowed to be amended. Additional pleas taken by the plaintiffs by way of amendment, were denied by the defendant and it was stated in the amended written statement that the land in dispute was neither ancestral nor coparcenery. Harbans Singh was Jat by caste governed by custom in the matters of succession and alienation. The concept of co-parcenery property was not applicable to Deva Singh as the property was self acquired property and he was competent to execute the Will. The plea of res judicata also set up in view of the decision in the suit filed by Buta Singh and Partap Singh relating to the estate of Jit Singh. The first appellate court framed the following issues on the basis of the amended pleadings.

(5-A) Whether the property in dispute was co-parcenery property in the hands of Deva Singh qua Harbans Singh plaintiff since deceased? If so, with what effect? OPD

(5-B) If issue No. 3 is proved whether the Will in question was executed for illegal and immoral purposes? OPD

(5-C) Whether the suit is barred by the principles of res judicata. OPD

The first appellate court called a report of the trial court on the additional issues after giving an opportunity to the parties to lead evidence. Trial court found issue No. 5A and 5B against the plaintiff whereas issue No. 5C was found against the defendants.

The learned Additional District Judge, Hoshiarpur vide impugned judgment held that Harbans Singh is son of Deva Singh and Sunder Kaur was also held to be widow of Deva Singh and the property in dispute was co-parcenery property. The finding of the trial court as to whether Satpal Singh and Sukhjit Kaur are adopted son and daughter of Deva Singh was affirmed by the first appellate court and it was held that they are not proved to be son and daughter of the deceased. Will dated 29.6.1973 set up by Sunder Kaur was held not to be proved and finding of the trial court on this issue was reversed. In the result, Harbans Singh and Sunder Kaur were held entitled to succeed to the property of Deva Singh in equal sharps. The appeal of the plaintiff was thus partly allowed. The legal representatives of Harbans Singh as well as defendants have filed these appeals impugning the judgment and decree of the first appellate court to the extent it was decided against them.

Learned Counsel for the plaintiffs as well as defendants have not seriously challenged the findings of the courts below with regard to relationship of Harbans Singh and Sunder Kaur with the deceased (Deva Singh). Even otherwise I find that both the courts below, after appreciation of the evidence, have rightly found that Harbans Singh is proved to be son of Deva Singh and Sunder Kaur is proved to be the widow of Deva Singh.

Learned Counsel for the defendants has contended that the first appellate court is not justified in law and on the facts proved on the record in holding that the Will set up by Sunder Kaur appears to have been a made up affair. He has also challenged the finding of the first appellate court with regard to the nature of the property i.e. as to whether the property in dispute is a coparcenery property.

Learned Additional District Judge, Hoshiarpur, for discarding the Will has taken the following suspicious circumstances into consideration:

(i) Will though was executed on 29.6.1973 but for reasons not known, was not registered on 29.6.1973 but was registered on 30.6.1973;

(ii) Deva Singh died on 2.7.1973 i.e. after 2 days of the execution of the Will;

(iii) There is no reference to Harbans Singh or Satpal Singh or Sukhjit Kaur in the Will;

(iv) Though Harbans Singh and his mother, Shrimati Dhann, never lived with Deva Singh after 1947 but there was no animosity or enmity between Deva Singh and Harbans Singh;

(v) Deva Singh died of heart failure and it is doubtful if Deva Singh was physically so well as to execute Will three days before his death.

Learned Counsel for the defendants has contended that the defendants have proved the due execution of the Will by producing one of the attesting witnesses to the Will, namely Sat Dev Saharan, DW14. Shri M.L. Kochhar, Sub Registrar, DW13, has proved that the Will was duly presented before him for registration and was registered on 30.6.1973. DW12 Nathu Ram who scribed the Will has proved that the Will had been executed by the deceased on his own volition in presence of the attesting witnesses. He has further contended that registration of Will on 30.6.1973 cannot be taken to be a suspicious circumstance when due execution of the Will has been duly proved on the record.

So far as the second suspicious circumstance taken into consideration by the first appellate court is concerned, learned Counsel for the defendant has contended that once it is proved on the record that Harbans Singh and his mother Shrimati Dhanni never lived with Deva Singh after 1947, there was no occasion for Deva Singh to make a mention of his son in the Will or to give reasons as to why Harbans Singh was being excluded.

As far as the letter alleged to have been written by Deva Singh to Harbans Singh in the year 1970 is concerned, his contention is that the said letter has not been proved on the record in accordance with law. He has also submitted that merely because Deva Singh died of heart failure is not sufficient to hold that he was not in a position to execute the Will three days before his death.

There is a long line of decisions having a bearing on the nature and standard of evidence required to prove the Will. The onus of proving a Will is always on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signatures of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain to the satisfaction of the court before the court accepts the Will as genuine. Suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator''s mind; the disposition made in the Will being unnatural, improbable or unfair in the light of the relevant circumstances, or there might be other indication in the Will to show that the testator''s mind was not free. Where there are suspicious circumstances surrounding the Will, the court would naturally expect that legitimate suspicions should be completely removed before the document is accepted as last testament or the Will.

So far as the facts of the present case are concerned, I find that the Will was executed on 29.6.1973. This circumstance by itself is not a suspicious circumstance but taking into consideration that Deva Singh died on 2.7.1973 i.e. within two days of the registration of the Will, gives rise to the suspicion as to why Deva Singh decided to wait for such a long time and executed Will only two days before his death particularly when the case of the defendant is that she was living with Deva Singh for the last 30/40 years. Of course, it has come on the record that Harbans Singh and his mother Shrimati Dhani never lived with Deva Singh after 1947 till his death, yet nothing has been brought on the record to show that they were having strained relations. It looks very unnatural that the deceased would give no reason in the Will for excluding his only son. Even otherwise, Sunder Kaur, in her written statement as well as Satpal Singh and Sukhjit Kaur have taken a definite stand that Satpal Singh and Sukhjit Kaur are the adopted son and daughter of Deva Singh. They have failed to prove that Deva Singh ever adopted Satpal Singh and Sukhjit Kaur as son and daughter but nevertheless if Satpal Singh and Sukhjit Kaur had enjoyed such a good relationship with the deceased then it was expected from the deceased that he would have given some reasons for excluding Satpal Singh and Sukhjit Kaur from inheriting his property. Thus, I find no ground to interfere in the finding of learned Additional District Judge, Hoshiarpur, on issue No. 3, as in my view the defendants have failed to remove the suspicious circumstances surrounding the Will by clear and satisfactory evidence.

However, I find force in the contention of learned Counsel for the defendant that the land in dispute is not proved to be a co-parcenery property. Subedar Bogh Singh father of Deva Singh was allotted land measuring 204 Kanals as military gallantry award. After his death, u/s 15 of the Punjab Colonization of Land Act, 1912, his four sons including the deceased, inherited occupancy tenancy rights. On the partition of the country, the land in dispute was allotted to Deva Singh and his brothers in lieu of the land left in Pakistan. In Sanad allotment, Ex.DJ, Provincial Government is shown to be the owner while Deva Singh is shown to be Dakhikar i.e. occupancy tenant. As per admitted stand of the parties, proprietary rights were conferred on Deva Singh deceased u/s 10 of the Displaced Persons (Compensation arid Rehabilitation) Act. In view of the admitted position, Bogh Singh father of Deva Singh to whom the land was allotted as occupancy tenant and on his death, land was inherited by Deva Singh and his three brothers as occupancy tenants in three equal shares but Deva Singh acquired proprietary rights for the first time u/s 10 of the Displaced Persons (Compensation and Rehabilitation) Act.

This court in Faqiria and Ors. v. Rajo and Anr. 1956 PLR 194, has held that when the occupancy tenant becomes owner by virtue of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act (VIII of 1953), the land becomes self acquired property and cannot be treated as ancestral land. This was reiterated by this Court in Karmi and Ors. v. Bachna and Ors. 1959 PLR 313 and Naranjan Singh v. Parsa Singh 1971 CLJ 195.

I find myself with respect in complete agreement with the view taken in the aforesaid decisions. That being the position, I hold that the land in the possession of the occupancy tenant over which he acquired full proprietary rights by operation of law, became self acquired property in his hand and so I find no merit in the submission that the land in question was not the self acquired property of Deva Singh deceased.

However, in view of my finding that the defendant is not entitled to succeed on the basis of the Will because of suspicious circumstances surrounding the Will, both the plaintiff Harbans Singh and defendant Sunder Kaur shall be entitled to succeed to the property of Deva Singh in equal shares, as held by the first appellate court.

I also find no merit in the contention of learned Counsel for the defendant that the decision in the suit filed by Buta Singh, Partap Singh relating to the property of Jit Singh operates as res judicata in the present case. No doubt, Sunder Kaur was held to been entitled to 1/3rd share of the property held by Jit Singh on the basis of Will dated 29.6.1973 in the suit filed by Buta Singh, Partap Singh but to my mind, the decision in that suit does not operates as res judicata because in that suit no issue was framed with regard to execution and validity of Will dated 29.6.1973 alleged to have been executed by Deva Singh in favour of Sunder Kaur.

As a result, I find no merit in these appeals and the same are dismissed. However, the parties are left to bear their own costs.