Bhajan Singh and Others vs Jaswant Kaur and Others

N.K. Kapoor, J.—The judgment shall dispose regular second Appeals No. 2887 of 1995 and 277 of 1986.

The dispute relates to of Chanan Singh son of Kishan Singh between his sister Smt. Santo on one hand and Karnail Singh, Didar Singh, Surjit Singh and others, grand-sons of Jaimal Singh - real brother of Chanan Singh on the other hand. Smt. Santo claimed the property being the nearest relation of Chanan Singh Deceased whereas Karnail Singh and others laid claim on the basis of will alleged to have been executed by Chanan Singh in their favour on 7.3.1969. Both set of claimants filed separate suits. Smt. Santo filed a suit for possession and mesne profits whereas other claimants filed suit for declaration and possession. Both the suits were consolidated by the trial Court.

On the pleadings of the parties issues were framed and opportunity was granted to the respective contending parties to adduce evidence in support of their respective contentions. Issues were framed with regard to the validity of the will, relationship of the defendants with the deceased, relationship of Smt. Santo i.e. whether she is the real sister of Chanan Singh and Jaimal Singh, with, regard to the suit being barred by limitation, it being bad for non-joinder of necessary parties and other such related issues. On two material issues i.e. relating to relationship of Smt. Santo with Chanan Singh and as to validity of the will set up by the other contending party the Court after scrutinizing the evidence led came to the conclusion that Smt. Santo is the real sister of Chanan Singh and Jaimal Singh, while examining the validity of the will dated 7.3.1969 trial Court came to the conclusion that its due execution and attestation has not been validly proved. In addition thereto, the Court came to the conclusion that the will set up is in fact surrounded by various suspicious circumstances and so decided this issue against them. Resultantly, the suit filed by Smt. Santo-was decreed whereas the suit filed by the other set of the claimants, who. based their claim on the basis of will was dismissed. With regard to the claim of mesne profits Smt. Santo on her own withdrew her claim and so this relief was not granted to Smt. Santo.

Feeling aggrieved by the judgment and, decree of trial Court, an appeal was preferred before the Additional District Judge. The appellants confined their submission with regard to the vital issue of the will propounded by the appellants. Finding of the trial Court in respect of other issues namely, issues No. 2, 5 to 8 and 13 were not pressed. The lower appellate Court re-appraised the evidence adduced by the parties in respect of the will set up by the appellants''. Taking up the question of its execution and attestation the Court came to the conclusion that same is amply proved as per the deposition of the witnesses of the will before the Revenue Officer at the time of sanctioning of mutation. The. Court noticed that no doubt both the attesting witnesses have resiled from their statement made by them before the Revenue Officer yet came to the conclusion that mere ipsi dixit of the witness now before the Court cannot be construed in a manner depriving a rightful claimant of his right to succeed on the basis of will executed by the deceased. Accordingly, the Court in the given circumstances held that their statements before the Revenue Officer can be relied upon to examine the validity of the will. This way, the Court came to the conclusion that the execution as well as the attestation of the will stands proved. Dealing with the so called suspicious circumstances surrounding the execution of the will the appellate Court found the approach of the trial Court to be somewhat faulty. According to the Court mere delay in presenting the will or its having not been scribed by a petition writer or there being no mention of near relation (sister) by itself is not a sufficient ground to discard a genuine document. Since the appellants had been serving the deceased during his last days and also otherwise related being grand-sons of his real brother it was but natural for him to have bequeathed the property in favour of his male heirs. Accordingly, the Court came to the conclusion that suspicious circumstances noticed by the trial Court stands sufficiently, explained. Consequently, the Court reversed the finding of the trial Court and held the will to be a valid document. Accordingly, the judgment and decree of the trial Court was set aside in both the suits and decree in favour of the plaintiffs-appellants was granted as prayed for.

Relationship of the contending parties with Chanan Singh is well proved on record. Smt. Santo was the real sister of Chanan Singh whereas Karnail Singh and others are related to him being grand-sons of Jaimal Singh - his real brother. Concededly, Smt. Santo being the real sister of Chanan Singh succeeds to the estate of Chanan Singh in the absence of a testamentary deposition. So, the precise dispute relates to the determination of the validity of will dated 7.3.1969 which is alleged to have been executed by Chanan Singh in favour of the respondents.

This will has been scribed by one Amar Singh and attested by Hardit Singh and Maghar Singh. Amar Singh had died and so his son appeared in the witness box to prove the hand-writing of his father. Hardit Singh, and Maghar Singh appeared as P.W.3 and P.W.4 respectively. Both these witnesses declined to support the will, exhibit P.W.3/B. They were declared hostile and so were permitted to be cross-examined. Hardit Singh in his cross-examination deposed that will in question was not read over to Chanan Singh nor it was read over to him. He also deposed that Chanan Singh had not thumb-marked the will in question in his presence. Similarly, Maghar Singh P.W4 stated that Chanan Singh had not executed any will in favour of the plaintiffs in his presence. Despite a gruelling cross- examination nothing could be elucidated from their deposition which could be said to prove the due execution as well as the attestation of the will. The lower appellate Court while examining this aspect of the matter chose to place reliance upon the statements recorded before the Revenue Officer at the time of sanctioning of mutation on death of Chanan Singh. It is well known that proceedings before the Revenue Officers at the time of sanctioning of mutation are conducted is summary manner i.e. gist of the statement is taken note of to form a prima-facie view as to what they are stating. The statements are neither recorded on oath nor taken in extenso as in a civil case. Even there is no provision for cross-examination by the opposing party. To place an implicit reliance upon such a statement in fact amounts to abdication of its duty to scrutinize the deposition made before the Court. Thus, in the present case on the one hand there is statements of the witnesses on oath who have been permitted to be cross-examined as well and on the other there is a gist of the statements alleged to have been recorded by the Reader of the Assistant Collector at the time of sanctioning of mutation and if one has to assess the matter independently obviously the statements of witnesses before a Court of law are, of course, to be preferred. Otherwise too, the deposition of witnesses in a civil Court is a legal evidence and so the Additional District Judge has clearly erred in law in relying upon the statement of Amrit Lal, Reader of the Assistant Collector, to hold that witnesses had admitted their signatures upon the will as well as its due execution.

Matter can be examined from another angle also. Both the witnesses had nothing to gain by deposing falsely as argued by the counsel for the respondent. Even one of the beneficiary of the will has deposed against it which further creates doubt to the due execution of the will. The other attending suspicious circumstances have also not been satisfactorily explained. Some of the points which have been highlighted by the trial Court are (i) Amar Singh, Scribe belong to Village Abe Majra which is at a distance of about 6 to 7 miles from Khanpur where Chanan Singh deceased is alleged to have been living before the execution of the will. Scribe is not a petition writer and no reason has been assigned why the will was scribed by this layman, (ii) the wording of the will gives an impression that same has been written by a person conversant with the form in which the will is normally drafted. This too creates some doubt that it had already-been scribed before anybody appended his signature/thumb impression, (iii) Sirhind, a Sub-Divisional headquarter is also situated at a distance of about 7 to 8 miles from village Khanpur. No explanation has been given as to why the will has not been scribed by a petition writer and (iv) there is no mention of Smt. Santo and no reason has been assigned for disinheriting her from the property. The Additional District Judge somehow found these so called suspicious circumstances of not much merit and so ignored the objections. Such an approach runs counter to the various judicial pronouncements of this Court as well as of the apex Court. In fact, as and when some suspicious circumstances surrounding the will are noticed it is incumbent upon the propounder to prove beyond any manner of doubt the due execution of will and to remove all such suspicious circumstances by a plausible explanation. Not only this, the propounder has to satisfy the ''conscious of the Court'' that the will has, been executed freely and without any pressure. The apex Court view has been consistent in this regard - H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, and Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, . Appeal deserves to be accepted. Another point needs some clarification :-

This appeal, was admitted on 25.10.1985 and the dispossession was stayed till further orders. Subsequently on 13.12.1985 the Court modified the earlier order and ordered the parties to maintain status quo regarding possession. It was further ordered that the appellants shall, however, furnish security for mesne profits to the satisfaction of the executing Court within two months from today. During the pendency of this appeal, subsequent vendees (respondents No. 12 and 13) filed an application seeking permission of the Court to raise construction on the disputed land. In this application it was stated that they alongwith others have purchased a part of land from respondents No. 2, 3, 4, 7 and 8 and one Balwinder Singh vide three different sale deeds dated 26.6.1989, for a total consideration of Rs. 2,00,500/-. ''They further stated that they are bonafide purchaser with consideration and without the knowledge of the pending litigation between the appellants and the vendors. On notice having been issued to the appellant the Court passed an agreed order on 1.6.1990 on the basis of undertaking given by respondents 12 and 13 which reads as :-

"a) The respondents No. 12 and 13 purchased part of the property in dispute for a consideration of Rs. 2.05 lacs. They are willing to deposit Rs. 2.05 lacs in this Court to be paid to the appellants in the event the appeal succeeds.

b) If the appeal succeeds, the respondents No. 12 and 13 will not claim any compensation for the improvements effected by them from the decree holders when they execute the decree. The decree holders will execute the decree for recovery of possession without any hindrance from respondents No. 12 and 13. They will either remove the super structure or permit the decree holders to take possession of the property alongwith the superstructure.

c) The respondents Nos. 12 and 13 are willing to deposit Rs. 2.05 lacs in the State Bank of Patiala, High Court Branch, Chandigarh (the sale price already paid by, them to their vendors) for payment to the appellants in case their appeal succeeds. The appellants can either accept the sale price or recover possession of the property sold to respondents No. 12 and 13 are indicated supra. If they choose to accept the sale price, they will not be entitled to execute the decree. If the appellants do not accept the sale price deposited by respondents No. 12 and 13 it will be refunded to them."

In view of the undertaking the application was disposed of. So, vis-a-vis respondents 12 and 13 appellants are at liberty either to accept the undertaking as given by them or to execute the decree without any hindrance and recover possession from them as well. For reasons stated, I accept the appeals by setting aside order of Additional District Judge.

No order as to costs.