Smt. Jito vs Dalip Singh and Another

N.K. Kapoor, J.—This is plaintiff''s appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by the defendants has been accepted.

One Sohan Singh was owner of the land in dispute who died on 14.1.1982 leaving behind plaintiff Jito as daughter and Dalip Singh and Piara Singh defendants as his sons Sohan Singh executed a Will on 17.4.1970 and bequeathed his whole property in favour of the defendants. The plaintiff feeling aggrieved by the entries in the revenue record i. e. sanctioning of the mutation on the basis of Will dated 17.4.1970, filed this present suit challenging the Will terming the same to be forged and fictitious.

The defendants put in appearance filed written statement controverting the various averments made in the plaint. By way of defence, the defendants urged that the Will was duly executed by Sohan Singh in favour of the answering defendants and thus the plaintiff has no cause of action to file the present suit.

On the pleadings of the parties, following issues were framed :-

(1) Whether Sohan Singh executed a valid Will dated 17.4 1970 in favour of the defendants? OPD.

(2) Relief.

Under issue No. 1, the trial Court came to the conclusion that Sohan Singh did not execute a valid Will in favour of the defendants and so decreed the suit of the plaintiff qua l/4th share of the estate left by Sohan Singh.

Before the lower appeallate Court, this finding of the trial Court was assailed by the defendants. Since Teja Singh, one of the attesting witnesses of the Will, had resiled, and application was filed under Order 41 Rule 27 of the CPC seeking permission of the Court to examine a finger print expert to seek opinion from the finger print bureau, Phillaur, so as to compare his thumbimpressions upon the Will with this standard thumb-impressions. The lower appellate Court agreed to this just request of the appellant and so sought the opinion of the finger print expert from Phillaur This expert witness was examined on commission who as per his deposition stated that the thumb-impression on the record, Since this was the only infirmity with regard to the proof of the Will Exhibit D-1, the lower appellate Court reversed the judgment of the trial Court and accordingly dismissed the suit filed by the plaintiff

The learned counsel for the appellant has assiled this finding of the Court below terming this to be wholly illegal The first submission of the learned counsel for the appellant is that the lower appellate Court has erred in law in not properly perusing the statement of the alleged attesting witnesses of the Will According to him, Teja Singh while appearing as a witness has clearly deposed that he is not an attesting witness of the Will Exhibit D-1. Despite a searching cross examination by the respondents nothing could be elicited which could be construed in any manner casting doubt upon his deposition. Merely for the reason that an expert has been examined to prove the alleged thumb-impression of Teja Singh on the will Exhibit P-1 still it cannot be so construed as amount to fulfiling essentials of Section 63 of the Indian Succession Act (for short ''the Act). Referring to Section 63 of the Act, the counsel highlighted that as per Section 63(c), it was incumbent upon the "defendants to prove that the Will had been attested by two or more persons, each of whom has seen the testator sign or affix his mark to the Will. Examined in the light of this statutory provision, evidence adduced by the respondents clearly falls short, in support of his contention, the counsel relied upon the cases reported as Gurnam Singh Vs. Smt. Ass Kaur and Others, T. Venkat Sitaram Rao and Another Vs. T. Kamakshiamma and Others, and Moonga Devi and Others Vs. Radha Ballabh, . Besides this, by referring to the contents of the Will, the learned counsel for the appellant highlighted that though it is admitted case of the parties that the plaintiff is real sister yet no mention had been made in the Will. This itself suggests that it was not a free act of the deceased. In fact, as per evidence on record, the plaintiff had been looking after her father till his death in the year 1982. No reason has been assigned by the testator for excluding her from inheritance.

Relationship between the parties is admitted. It is also admitted case of the parties that it was the self acquired property of the deceased, The Will in dispute was executed on 17.4.1970 whereas Sohan Singh died on 14.1.1982 i.e. almost after a gap of about 12 years. During all these years Sohan Singh made no attempt to vary the Will. The Will has been scribed by the petition-writer and attested by Sarv. Shri Arjan Singh and Teja Singh. Both these witnesses identified the testator before the Sub Registrar at the time of the registration of the Will. Arjan Singh has appeared as DW1 and has deposed that Sohan Singh executed the Will in favour of the defendants. He further deposed that the Will was read over by the scribe and Sohan Singh thumb marked it admitting its contents to be correct. He has further stated that Teja Singh, another attesting witness, also thumb marked the Will along with him. It has also come in the statement of this witness that the defendants were minors at that time. Both the courts below have not found any fault with the statement of Arjan Singh, The appellant has, however contended that Teja Singh has not accepted his attensation of the Will and this way there has been non compliance of a Section 63(c) of the Indian Sucession n Act I have examined this provision very minutely. All that it states is that the Will shall be attested by two or more witnesses, each of whom seen the testator sign or affix his mark to the Will, in their presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature. Teja Singh having denied his thumbimpressions on the Will, the defendants examined Pritam Singh from the office of the Deputy Commissioner, Gurdaspur, who brought the summoned record containing entries with regard to the registration of the Will and deposed that the will Exhibit D-1 was duly registered in the office of the Sub Registrar. The defendants with a view to get rid of this difficult situation created by Teja Singh who even denied his thumb-impression upon the Will, filed an application before he Additional District Judge with a view to prove that the will Exhibit D-l bear the thumb impression of Teja Singh PW2. The lower appellate Court allowed this just prayer and report from finger print expert was taken on record who without any hesitation made statement that thumb-impression of Teja Singh tally with his thumb-impression upon the Will Since Teja Singh had died during the pendency of the appeal, he obviously could not be examined again. Examined thus, there is no element of doubt that he Will as extcuted by Sohan Singh which was attested by Arjan Singh and Teja Singh. One cannot lose sight of the fact that the testator lived for almost 12 years after the execution of the will Exhibit D-l and took no measure to cancel the registe ed Will or execute any other Will. No doubt, it is incumbent upen the parties propounding to prove its due execution. The Will is to be proved like any other document with a rider prescribed by Section 63(c) of the Indian Succession Act. As observed earlier, there has been compliance of Section 63 of the Act. Arjan Singh has come in the witness box and has deposed that Sohan Singh thumb marked the Will in his presence. Not only this, both the attesting witnesses have seen the testator thumb-marking the Will, It is not the case of the plaintiff that the Will was executed under coercion or undue influence. All that has been urged is that no motion had made of her in this document. There is no doubt that the document Exhibit D-1 does not make mention of the fact that Smt. Jito was his daughter nor there is any mention in the Will as to why she is being deprived of her share. All the same, there is ample evidence on record which go a long way in proving the version as given by the defendants, it has come in the statements of the defendants and their witnesses that the plaintiff was not having good relations with Sohan Singh. In fact, she married against his wishes. She had not been on visiting terms for the last many years. Even his wife Kartar Kaur left him. Ft is for this reason he thought of bequeathing his property in favour of his sons only. In any case, this by itself is no ground to discard a duly executed document as in the instant case.

9 Lastly, the counsel urged that some suitable direction be given to the respondents for providing monthly aid so that the appellant is able to support her minor children and herself If is indeed a hard case. Plaintiff is a widow and not possessed of sufficient means to support her and the family members. Except to appeal to the better sense of the defendants to look after their sister or to provide her some monetary support lump sum or monthly, no relief can be granted by the Court in this appeal.

For the aforesaid reasons, I find no infirmity in the impugned judgment and decree of the lower appellate Court and consequently dismiss the appeal. No order as to costs.