Smt. Surasti Devi and another vs Smt. Shanti Devi and others

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for declaration was decreed by the trial Court, but dismissed in appeal.

The Plaintiffs brought the suit for declaration that they were the owners in possession to the extent of their shares in respect of property left behind by Harbans Lal who died on January 14,1973, leaving behind two widows Sarasti Devi and Shanti Devi and a daughter named Raj Rani from his third wife Anguri Devi who had pre-deceased him. The said Harbins Lal had three daughters from his second wife Shanti Devi. During his life time, he executed a will dated February 13, 1971, Exhibit D 1, which was got registered on February 23, 1973, after his death. The Plaintiff Sarasti Devi is one of the widows of the deceased Harbans Lal whereas Raj Rani Plaintiff is his daughter from Anguri Devi who as already noticed predeceased him. According to them, the said will was a forged document and was never executed by Harbans Lal; hence it was ineffective against their rights. In the written statement, the relationship of the parties with Harbans Lal, deceased, was admitted. However, it was pleaded that the deceased had executed a valid will dated February 23, 1971, which was scribed by Dhaja Ram and attested by Nohar Chand and Harbans Lal. It was also admitted that the same was got registered on February 23, 1973. The main controversy between the parties in the trial Court was as to whether Harbans Lal executed a valid will in favour of the parties which was the subject-matter of issue No. 4. The trial Court found that that the execution of the will, Exhibit D.1, was surrounded by suspicious circumstances which its propounders had failed to explain by any cogent and convincing evidence. It was also held that the Defendants had failed to prove the execution of the will, Exhibit D. 1. As a result, the Plaintiffs'' suit was decreed. In appeal, the learned Additional District Judge reversed the said findings of the trial Court and came to the conclusion that the will was natural and no suspicious circumstance surrounded its execution. The evidence of the Defendants in proving the execution and attestation of the will was consistent and convincing and must be accepted. Consequently, the Plaintiffs'' suit was dismissed.

The learned Counsel for the Appellants submitted that the trial Court enumerated seven suspicious circumstances while coming to the conclusion that neither the will was proved to be validly executed and that it was not surrounded by suspicious circumstances, but according to the learned Counsel, the said finding has been reversed in appeal arbitrarily and without cogent reasons. It was also argued that even the signatures of Harbans Lal on the will, Exhibit D. 1, did not tally with his signatures of two sale deeds Exhibits P. 1 and P.2. The scribe of the will, Dhajha Ram, was the sandhu (brother-in-law) of the deceased and was, thus, interested in him. Even the register produced by him containing the entry with respect to the will did net inspire confidence as there was interpolations therein. Moreover, there is no explanation why the will was got registered after the death of the testator and that too at Sangrur while the parties lived at Barnala and the same could be registered there. According to the learned Counsel, the deceased was a big businessman having a huge property. Sarasti Devi, Plaintiff, who is his first wife, sacrificed her own comfort and got him married to her sister Anguri Devi in order to get him a son. However, no male child born to her. She gave birth to a daughter named Raj Rani. In spite of this, in the will, the deceased had deprived both Sarasti Devi and Raj Rani of the property. Very limited rights have been given to them under the will. Moreover, according to the learned Counsel, in the will it was stated that he was leaving behind 60 killas of land which may be divided l/6th each amongst his heir, but actually he left behind only 43 kanals of land. Even the description of the bank amounts said to have been given to Sarasti Devi, Plaintiff, was not detailed in the will. Therefore, the will was surrounded by suspicious circumstances. According to the learned Counsel, it is the conscience of the Court which should be satisfied before a will could be accepted to be a valid one. In support of the contention, the learned Counsel relied upon Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, . On the other hand, the learned Counsel for this Defendants-Respondents submitted that on the appreciation of the entire evidence, the final Court of fact has come to the conclusion that the will was not surrounded by any suspicious circumstances taken and the so-called suspicious circumstance taken into consideration by the trial Court were discussed in detail and it was found that valid explanation had been given by the Defendants. Thus, argued the learned Counsel, it being a finding of fact, could not be interfered with in second appeal. In support of the contention, the learned Counsel relied upon AIR 1945 105 (Privy Council) .

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I do not find any justification for interfering with the finding of fact recorded by the lower appellate Court, in this appeal.

The learned Additional District Judge has dissussed each and every alleged suspicious circumstance and has come to the conclusion that the Defendants had cogent explanation for the same. Admittedly, the deceased has three daughters from Shanti Devi Defendant. Raj Rani, born from Anguri Devi had already been married by him during his life time Under the circumstances, it has been rightly observed by the lower appellate Court,-

Harbans Lal had already married Raj Rani the daughter from his wife Anguri Devi. His other wife Surasti Devi bad no heirs and no responsibility By means of the will Harbans Lal was to provide for his unmarried daughters and their mother. He was conscious of the fact that sufficient funds would be required by Shanti Devi for arranging the marriages of the three daughters. This anxiety on his part was bound to influence him to give Mst. Shanti Devi and his daugthers major part of the property.

It is not a case where the Plaintiffs have been deprived totally of the property of the deceased. Both of them have been provided under the will though not to the same extent as Shanti Devi and her daughters. It could not be disputed that the will is ordinarily executed to exclude the natural heirs from inheriting the testator''s estate. Thus, it could not be successfully argued on behalf of the Appellants that the will was surrounded by suspicious circumstances as to be interfered with in second appeal. In Jaswant Kaur''s case (supra), the Supreme Court observed that in cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the Plaintiff and the Defendant. What, generally, is an advesary proceeding becomes in such cases a matter of the Court''s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator. Keeping in view the said observations of the Supreme Court, I do not find that the so-called suspicious circumstances in the present case are such as to render the will invalid in any-manner That being so, it has been rightly found by the lower appellate Court that the will was a natural one and that no suspicious circumstances surrounded its execution.

As regard the execution and attestation of the will, it is a pure finding of fact as held by the Privy Council in Manindra''s case (supra). On the appreciation of the entire evidence a firm finding has been given by the final Court of fact that the evidence of the Defendants in proving the execution and attestation of the will was consistent and convincing and must be accepted.

Consequently, this appeal fails and is dismissed with no order as to costs.