Bhagwan Kaur vs Gurbax Singh and another

A.S. Nehra, J.—This appeals is directed against the judgment and decree dated 9.3.1984 passed by the Additional District Judge, Faridkot, by which the appeal filed by the defendant-appellant was dismissed and the judgment decree dated 3.11.1981 passed by the trial Court (decreeing the suit of the plaintiffs- respondents) was upheld.

Briefly, stated the facts of the case are that Punjab Kaur filed a suit for possession against Bhagwan Kaur and Bhura Singh with the following averments.

Ganda Singh son of Kishan Singh was the owner of 3/4th share of the land measuring 215 kanals 18 marlas, as detailed in paragraph 1 of the plaint. Bhagwan Kaur defendant-appellant was the owner in possession of 1/4 share. Punjab Kaur plaintiff (widow of Ganda Singh) who had originally brought the suit, sold 26 kanals 19 marlas of land to Surjit Kaur wife of Bhura Singh defendant and the other half 26 kanals 19 marlas was sold to Makhan Singh and Sulakhan Singh, sons of Bhura Singh defendant. Ganda Singh mortgaged with possession 34 kanals 12 marlas of land to Makhan Singh and Sulakhan Singh and that land was still under mortgage with them. the suit land measuring 122 kanals was cultivated by Bhura Singh defendant as a tenant of Ganda Singh, Ganda Singh died issueless on 23.10.1977 and Punjab Kaur, his widow, inherited his entire property. After the death of Ganda Singh, Bhura Singh started cultivating as a tenant of Punjab Kaur but, in connivance with Bhagwan Kaur defendant appellant he wanted to pay rent to Bhagwan Kaur and, therefore, Punjab Kaur filed a suit for permanent injunction against Bhura Singh, Makhan Singh, Sulakhan Singh, Surjit Kaur and Bhagwan Kaur defendant- appellant, who is the sister the Ganda Singh, deceased, got Will, a false Will, fabricated in her favour and, no the basis of that she got Mutation No. 1290 dated 14.12.1977 sanctioned in her favour and started declaring herself as the owner of the land. Ganda Singh had been suffering from the ailments of lungs ad kidneys since a long time earlier to his death because of addiction to drinking. Punjab Kaur plaintiff, his widow, used to serve him. Ganda Singh was incapable of executing a Will. Bhura Singh wrote a letter to Punjab Kaur that he had given up possession of the land on 8.5.1978 and that he had no concern with the land but the possession actually was given by him to Bhagwan Kaur defendant appellant.

Bhagwan kaur defendant-appellant contested the suit and stated that since Punjab Kaur had already filed a suit on 14.12.1977, therefore, the present suit was liable to be stayed u/s 10 of the Code of Civil Procedure. It was further stated by the defendant-appellant that the Hindu Succession Act has no applicability to the facts of the present case. She admitted that Ganda Singh had 3/4th share in the land measuring 215 kanals 18 marlas. The right of Punjab Kaur plaintiff was denied. It was further averred by Bhagwan Kaur defendant-appellant that Ganda Singh had executed a Will in her favour on 7.6.1977 when he was in a sound disposing mind; that the mutation, on the basis of that will, was sanctioned in her favour in the presence of Punjab kaur plaintiff; and that Ganda Singh had given all the ornaments and cash to Punjab Kaur plaintiff and transferred 1/4th share of the landed property in her favour by means of a decree through Court.

On the pleadings of the parties, the following issues were framed.

(1) Whether the deceased Ganda Singh has left a valid Will in favour of the defendant Bhagwan Kaur?

(2) Relief?

During the pendency of the suit before the trial Court, Punjab Kaur plaintiff died and Gurbax Singh and Labh Singh were brought on the file as her legal representatives.

The trial Court decided issue No. 1 against the defendants and decreed the suit.

(5) I have heard the arguments of the Learned Counsel for the parties and have gone through the entire evidence on record.

The Will Exhibit D-1 is alleged to have been executed by Ganda Singh in favour of Bhagwan Kaur in lieu of services rendered by her. The will purports to have been scribed by Vinod Kumar and attested by Nihal Singh and Surinder Singh. Vinod Kumar has appeared in the witness box as D. W.2 and has stated that the will Ex. D.1 was scribed at the instance of Ganda Singh. Nihal Singh, Member Panchayat of village Lambi where Ganda Singh tesator resided, was not brought in the witness box by the propounder of the Will. Surinder Singh however, has appeared in the witness- box as D.W. 1. He is the resident of village Channu. Surinder Singh is the son-in-law of Bhagwan Kaur and apparently the attestation of the Will by him is not free from doubt. I am unable to understand as to why Ganda Singh who was resident of village Lambi could not arrange a witness from there. The only witness of village, Lambi Nihal singh, has not appeared in the witness box. Without any hesitation, it can be stated that the Surinder Singh has been made to attest the will not by Ganda Singh but by Bhagwan Kaur, the propounder of the Will. It is indisputed that Ganda Singh, because of excess drinking, suffered from the aliment of kidney and the evidence on record reveals that he remained admitted in P.G.I. But Surinder Singh has stated in his cross-examination that Ganda Singh never fell sick and that he was a person of good health. According to him, he, never fell prey to any sort of illness 3-4 years earlier to his death. Admittedly, he had died on 23.10.1977 and the statement of doctor R.J. Dass (PW 3) who had medically treated Ganda Singh at PGI reveals that he was admitted to the PGI on 16.9.1974 and was discharged on 28.9.1974. He further tells that he was admitted again on 16.1.1975 and discharged on 23.1.1975. The statement of doctor D.R. Ghai (P.W. 1) reveals that he was admitted to the hospital on 30.7.1977 and was discharged on 11.8.1977 as alcohol addict. So, it has to be held that Surinder Singh is not telling the truth. Wilful illness of Ganda Singh by Surinder Singh leads me to conclude that he is not a truthful witness and has his own axe to grind. His statement is far from credence. Ignoring the statement of this witness, there is hardly any evidence on the file to show the valid execution of the Will.

The circumstances existing on the file reveal that Ganda Singh was addicted to excessive drinking and suffered from disorder of liver and kidneys. From the over-all appraisal of the evidence, it can safely be stated that he had lost his testamentary capacity to execute the Will. Doctor D.R. Ghai, medical practitioner of Gidderbaha, has stated on oath that Ganda Singh was admitted to his hospital on 30.7.1977 and was discharged on 11.8.1977. According to him, the liver of an alcohol addict can be damaged. Doctor R.J. Dass as PW-3 had deposed that Ganda Singh was admitted to the P.G.I, on 16.9.1974 and was discharged on 28.9.1974. According to him, disease was alcoholic cirrhosis and chronic bronchitia with bronchiectesis. According to doctor R.J. Dass, he was again admitted to P.G.I. 16.1.1975 and was discharged on 23.1.1975. Ganda Singh was also treated as outdoor patient in March, April, 1975 and May, 1977 by Doctor R.J. Dass. According to the doctor, liver failure may affect the brain also.

Thus, apparently Ganda Singh, was not maintaining normal health. He had liver disorder. When he had prolonged illness it cannot be held that the Will has been executed by him in a sound state of mind.

The will is alleged to have been executed by Ganda Singh in favour of Bhagwan Kaur in lieu of services but there is not an iota of evidence to show that Bhagwan Kaur ever rendered service during the life of Ganda Singh. Ganda Singh was the resident of village Lambi while Bhagwan Kaur, his sister, has been residing at village Alike, Tehsil Dabwali, Bhagwan Kaur herself stated that Ganda Singh and his wife Punjab Kaur had cordial relations. Ganda Singh got himself medically treated for the first time at Chandigarh from 16.9.1974 to 28.9.1974 and therefore, he got treatment from doctor D.R. Ghai (PW 1) at Gidderbaha. According to P.W. 1 Ganda Singh remained admitted in his hospital from 30.7.1977 to 11.8.1977. Bhagwan Kaur in her cross-examination has not stated that after Ganda Singh was taken to Chandigarh, he was got treated from any other doctor. Thus, apparently Ganda Singh was taken to Gidderbaha Hospital by Punjab Kaur and not by Bhagwan Kaur. Bhagwan kaur is having her sons and grand-sons. She might have been coming to Lambi to see her ailing brother but there is absolutely no evidence except the bald statement of Bhagwan Kaur about the services towards Ganda Singh. Even the statement of Bhagwant Kaur does not conclusively reveal that she has been rendering services to Ganda Singh. Moreover, when Ganda Singh and his wife Punjab Kaur have been maintaining cordial relations, it is not believeable that Punjab Kaur did not render any service and that Bhagwan Kaur has been proving helpful in the days of illness or otherwise. No person from village Lambi has been brought in the witness-box by Bhagwan Kaur to show that she has been rendering services towards Ganda Singh, Rather Punjab Kaur, has brought in the witness-box Gajjan Singh, a resident of village Lambi, to dislodge the version of the defendant-appellant. He had categorically stated that Bhagwan Kaur did not took after Ganda Singh. Thus when Bhagwan Kaur did not render any service towards Ganda Singh, how could it be believed that the Will has been executed by him of his own free will in lieu of services.

Ganda Singh had no issue. He had died leaving behind his wife Punjab Kaur. Punjab kaur had filed a suit for declaration and decree for 1/4th share of the land measuring 215 kanals 18 marlas had been granted in her favour. Copy of the judgment is Exhibit D-5. Learned Counsel for the appellant has argued that when Punjab Kaur had got 1/4th Share in the land through decree, Ganda Singh had rightly omitted to make any mention of her in the Will. The contention does not sound reason. Had the Will been voluntary one, manifesting the true expression of the mind of Ganda Singh, he must have mentioned that the property sufficient for her maintenance has been given to her. But, when there is absolutely no mention in the Will about Punjab Kaur, though she had harmonious relations with Ganda Singh throughout, it cannot be stated that it was the bona fide commission on behalf of Gands Singh. Absolutely nothing has been mentioned in the Will as to why Punjab Kaur has been disqualified to inherit the property.

Learned Counsel for the appellant has argued that mutation in favour of Bhagwan Kaur on the basis of the Will has been sanctioned in the presence of Punjab Kaur and that when she did not raise any objection at that time, it has to be taken that it was a genuine Will. The contention is not sustainable. No witness has been brought in the witness-box by Bhagwan Kaur to show that Punjab Kaur at any time had accepted the genuineness of the Will. Copy of the mutation Ex. D-9 reveals that the mutation was sanctioned on 14.12.1977 in favour of Bhagwan Kaur on the basis of the Will and the instant suit had been filed by Punjab Kaur on 18.7.1978. Punjab Kaur did not allow even a year to pass in putting her claim before the Court. Had Punjab kaur been inactive for a long time it could have been stated that she had brought the suit for ulterior motive but when she did not take a long time in coming to the Court, it has to be held that at no time she had accepted the genuineness of the Will.

As a result, it can safely be stated fhat"becausj3 of prolonged illness Ganda Singh had lost his testamentary capacity to execute the Will. For the aforesaid reasons it can conclusively be stated that it is not a genuine Will.

Finding no merit in the appeal the same is dismissed with costs.