Smt. Kariar kaur vs Gurbax Singh and others

Shamsher Bahadur, J.

1.The surviving question for determination in this appeal of the Defendant, Kartar Kaur, against whom a suit for possession of two-thirds of the disputed land measuring 201 Kanals has been decreed by the two Courts below relates to the validity of the will executed by the owner of the estate, Mst Kishni, in favour of the Appellant on 27th of October 1963

Mst. Kishni, who according to the Plaintiffs was about 90 years of age at the relevant time, but has been found by the lower appellate Court to be over 70, died on 1st of November 1963. Her husband Sher Singh owned landed property in West Pakistan and in lieu of it land had been allotted to her after the partition. The Plaintiffs, Hari Singh and his brother Gurbax Singh are the sons of Khazan Singh, brother of Sher Singh They claimed possession of Kishni''s land which had come to be held by the Appellant Kartar Kaur, her niece (sister''s daughter) in pursuance of the will executed by Kishni a few days before her death on 27th October 1963 In the suit the parties challenged each other''s relationship with Kishni. The Plaintiffs asserted that she was only a limited owner incapable of making a will in respect of property which was ancestral. It was further pleaded by the Plaintiffs that they had already obtained a declaratory decree against Kishni prior to the institution of the present suit for possession.

It has been found concurrently by the Courts below that the Plaintiffs as nephews of Sher Singh are the next heirs of Kishni; the Defendant Kartar Kaur is the niece of Kishni, who became a full owner by virtue of the provisions of the Hindu Succession Act and that the will which had been executed by the testarix was not a voluntary estamentary disposition. The only point on which the courts below differed in their findings related to the ancestral nature of the property. While the trial Judge found it to he ancestral, the lower appellate Court considered it to be non-ancestral ; in any event, nothing turns on this question as Kishni admittedly became a full owner capable of disposing of the property as she liked after the passage of the Hindu Succession Act. It may be mentioned that both the Courts also found in favour ot the Defendant that proof did not exist of any prior declaratory decree in favour of the Plaintiffs against Kishni.

It may be explained that the Respondents'' counsel having conceded that their only sister Gurbachan Kaur is alive and shares equally with them in the estate of Kishni, a decree for two thirds of her holding has been passed, Gurbachan Kaur, the owner of the remaining one-third not having been joined as a Plaintiff in the suit.

It would be apparent that the only question, as I mentioned at the outset, relates to the determination of the fourth issue in this case which is in these words:

Whether Mst. Kishni executed a valid will in favour of Defendant as mentioned in the written statement ?

On the evidence adduced by the parties, it has been found that Kartar Kaur was present in the house at the time of the execution of the will though she did not actually witness the attestation. She admitted herself that the will after its execution had been thrown at her lap and a reasonable inference is that she was present in the house when it was scribed and attested.

The will was scribed by Labh Singh D W 3(sic) who is a petition-writer, and was called to the house of Kartar Kaur on a Sunday by her son Ram Singh. Likewise, the attesting witnesses Gurcharan Singh and Rajinder Singh were called by Ram Singh. The statements made by these witnesses with regard to attestation have not been disbelieved by the Courts below and the conclusion of the lower appellate Court on this aspect of the case is this:

These marginal witnesses did state that Mst. Kishni had executed this will in "their presence and had thumb-marked it and then they had attested it. Labh Singh D.W. 3 also corroborated their statements. This fact that this will was written on 27th October, 1963, and was tnumb-marked by Kishni is established from this evidence. Anyhow the writing of this will and thumb impression of Kishni has been established

From these extracts of the finding of the lower appellate court it must be said that the execution of the will has been proved: the Court has, however, doubted the free and voluntary nature of the will and some of the reasons for reaching this conclusion do not appear to me to be tenable. It has to be observed that the marginal witnesses were categorical in their statements that the tastatrix was in good health at the time when the will was scribed on her directions. The conclusion about her state of health has, however, been doubted by the lower appellate Court on the ground that she died a few days after the will was executed. The lower appellate Court appears to have thought that Kishni must have been ailing on the day when the will was executed. Now, this is obviously an inference based on conjectures. It is not unknown that people who attain the age which Kishni had reached, sometimes find their lives, extinguished suddenly without any prior complaint of ailment. The lower appellate Court had no warrant to say that the few days which elapsed between the execution of the will and her death give rise to a suspicion bordering on an inescapable inference that she must have been ailing, and to discredit the marginal witnesses on that score does not appear to be warrantable in the circumstances.

Again, Labh Singh having charged Rs. 2/- as his remuneration for having scribed the will on a Sunday at the house of the testatrix has been taken as a circumstance to show that he is unduly prejudiced in favour of Kartar Kaur. It has been stated at the bar by reference to the rules, and not controverted by the opposite side, that the charge of Rs. 2/- was in accordance with the rules, and if this appeared to be inadequate return for the services rendered by the scribe on this particular occasion in coming to the house of the testatrix on a holiday, this is no ground to reject his evidence altogether. The scribe does not appear to have been cross-examined about the adequacy of the fee which he received.

It is well to mention that the lower appellate Court has found that the testatrix had been living with her niece Kartar Kaur Appellant for many years both before and after the partition. The Appellant had been looking after her aged aunt who was issueless and had no one to look upon for help According to the statement of Gurbax Singh Plaintiff himself; Kishni was living with Kartar Kaur for four years at Ludhiana before the execution of the will. It is true that there are issues of the other sisters of Kishni, but that is no ground to say that it was unnatural for the testatrix to have preferred Kartar Kaur over her other cousins.

The husband and son of Kartar Kaur were in the house, as was to be expected, when the will was executed. In fact, Ram Singh son of Kartar Kaur, had taken active interest in so far as he got the attesting witnesses to come to the house of the testatrix. Counsel for the Respondents, like the Courts below, has placed reliance on the Supreme Court decision in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, , where it was held that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said supicions from the mind of the Court by cogent and satisfactory evidence. It was observed by the Supreme Court that:

Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propourder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance finding the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.

It is submitted that the husband and son of Kartar Kaur had aken an active interest in the execution of the will and had thrown it in the lap of Kartar Kaurherself, Mr. Kaushal for the Appellant.has contended that as the son and husband of Kartar Kaur were living with her, and Kishni was residing in the house of Kartar Kaur it was natural that Ram Singh was asked by the testatrix to bring persons of her acquaintance for attesting the will. The Courts below have relied on the circumstance that while Kishni had been living with Kartar Kaur for many years, it was only a few days before her death that the will came to be executed. Kishni may have been minded all these years to leave her estate to Kartar Kaur who had served her well for a very long time and there is nothing unnatural in her having waited that long to make up her mind to make a will just near the point of her death. She was in a healthy state of mind when the will was executed and there is no material to hold that she did not possess sound disposing mind at the time when the will came to be executed. The conclusion of the District Judge on this aspect of the case is purely conjectural. To use the words of the lower appellate Court itself:

Mst. Kishni died on 1st November 1933, say 4 or 5 days after the execution of the will. According to the marginal witnesses of the deed she was hale and hearty and could walk. If this was so then I cannot understand how she could die 4 days after that. She must have been ill and weak on 27th October 1963. Moreover, if she was hale and hearty and could walk there is no reason why she should not have gone to the Courts and got the will executed and registered there This is admitted fact that Labh Singh scribe was called to the house of Kartar Kaur and there this will was writ-ten. This further shows that Kishni on 27th October, 1963 must have been ill and weak

As I have said before, this conclusion is wholly unjustifiable, based as it is, on mere conjecures. Broadly speaking, the witnesses who have deposed about the execution of the will, have given a consistent account and they cannot be accused of having any special interest in the testatrix. The discrepancies of which a note has been taken do not lead to a conclusion that thay have to be discredited, nor has this conclusion been reached in so many words by the lower appellate Court.

In the Supreme Court judgment, to which reference has been made, the following passage of Lord Du Parcq in Harmes v. Hinkson, A.I.R 1946 P C 156 has been cited with approval:

Where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief They do not demand from the Judge, even in cricumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth.

To me it appears that the will is a natural document and the recitals show that the old lady had been served well by her niece whom she warned to make an object of her bounty. It is true that the nephews, whose claim she was ignoring were not inimical to her in any way. but the special attachment in which Kartar Kaur was held does not make it unnatural that she should receive the land which had come under her absolute ownership by the passage of the Hindu Succession Act. In the will itself, there is a mention that she was the full owner of the estate under law and though suspicion is attached to Ram Singh having called the witnesses, there is nothing brought out in the circumstances of this case to show that any pressure or undue influence had been exercised over the testatrix by the attesting witnesses or Kartar Kaur, the beneficiary. The scribe has given the details of the instructions under which he wrote the will. The attesting witnesses appended their signatures in the presence of the testatrix. Apart from old age, there is no suggestion of any kind that Kishni was suffering from any physical ailment which could hamper her power of thought or reflection.

The counsel for the Respondents has contended that the inferences made by the Courts below even if they are erroneous, would constitute findings of fact so long as they are based on evidence led din the case. It is, however, to be observed that the learned Courts below have ignored altogether that even the existence of a suspicious cricumstance has to be examined with scrutiny to see whether the will was a natural document and was the outcome of a free and voluntary mind, uninfluenced by any pressure or influence.

I am, therefore, of the view that the will being a natural document executed by a person of sound mind, even on account of her old age, should be given effect to. I would, therefore, allow the appeal, set aside the judgments of the Courts below and dismiss the suit of the Plaintiffs. In the circumstances, there would be no order as to costs of this appeal.