Bhajan Singh vs Shrimati Karnail Kaur

Rajesh Bindal, J.—This order will dispose of three appeals bearing RSA Nos. 3652, 3788 and 3789 of 2008, as the same arise out of common judgment of learned Appellate Court. Inheritance to the moveable and immovable property of Gurbachan Kaur is in question.

The suit filed by Karnail Kaur daughter of Gurbachan Kaur for declaration and possession, was decreed.

In the case in hand pleaded facts are that Karnail Kaur filed a suit for declaration and possession claiming ownership of the estate left by Gurbachan Kaur deceased. It was claimed that power of attorney and the Will executed by Gurbachan Kaur deceased in favour of Bhajan Singh, her brother was forged and consequently the sale-deeds executed on the basis thereof. Gurbachan Kaur died on 15.3.1999. The plaintiff had been taking care of Gurbachan Kaur deceased. Bhajan Singh being a clever person to grab the property took her to village Maharon, at her advance stage where she expired on 15.3.1999. The will and the power of attorney were got executed by him on 16.2.1999. On the basis of power of attorney, Bhajan Singh executed about 4-5 sale-deeds in favour of his son Ranjit Singh and Balwinder Kaur widow of Mohinder Singh, another son, on 18.2.1999 and 23.2.1999. Three days prior to her death, Gurbachan Kaur is claimed to have raised loan of Rs. 1,50,000/- against her fixed deposit with Bank of India. In this account also, Ranjit Singh son of Bhajan Singh is shown to be the nominee. At her last stage, Gurbachan Kaur was not in need of money. Though she retired as Nurse and used to sign but still on the Will and the power of attorney her thumb impression has been put.

The plea raised by the defendants was that the plaintiff was, in fact, not the daughter of Gurbachan Kaur. Entire issue has been raised by her to grab the property of Gurbachan Kaur. Gurbachan Kaur was having a daughter in the name of Karnail Kaur with whom she was having strained relations for about 25 years before her death. Gurbachan Kaur deceased had disinherited Karnail Kaur from her estate. Last rites of Gurbachan Kaur deceased were performed by the defendants, who used to serve her during her life time. The Will and the power of attorney were executed by her in sound state of mind. The sale-deeds were executed by Bhajan Singh during the life time of Gurbachan Kaur on her behalf. It was admitted that Gurbachan Kaur had raised a loan of Rs. 1,50,000/- from the bank. It was also admitted that she retired as Nurse and had been drawing pension. Further explaining the thumb impression on the Will and the power of attorney, it was stated that during the last days, she had started trembling, hence, used to thumb mark the documents, including the pension documents.

Both the Courts below found merit in the contentions raised by Karnail Kaur in the suit filed by her, hence, decreed the same. RSA Nos. 3652 of 2008 has been filed by Bhajan Singh, in whose favour the alleged Will and the Power of attorney were executed by Gurbachan Kaur, RSA No. 3788 of 2008, has been filed by Ranjit Singh son of Bhajan Singh and Balwinder Kaur widow of another son of Bhajan Singh namely Mohinder Singh, whereby Karnail Kaur was declared the owner of the entire immovable property owned by deceased Gurbachan Kaur, and RSA No. 3789 of 2008 has been filed by Bhajan Singh and his son Ranjit Singh, against the judgments of learned Courts below whereby the suit filed by the plaintiff Karnail Kaur for declaration to the effect that she being the sole legal heir of Gurbachan Kaur deceased is entitled to receive the maturity value of FDR No. 22468 dated 14.11.1998 lying deposited in Bank of India, Village Dalla, Tehsil and District Moga, with consequential relief of permanent injunction restraining the respondent-Bank from paying the amount of the aforesaid FDR to Ranjit Singh appellant being the alleged nominee of Gurbachan Kaur and for mandatory injunction directing the respondent Bank to pay the maturity value of the said FDR to her, was decreed.

Learned counsel for the appellants submitted that both the Will as well as General Power of attorney executed by deceased Gurbachan Kaur are registered documents. The attesting witness of the Will namely Numberdar of the village appeared in the witness box as DW 1. He supported the same. DW 2 was the deed-writer. It is not the case where the deceased Gurbachan Kaur has not mentioned about her daughter in the Will, rather it was claimed that she had strained relations with her for the last 25 years and that was the reason for not giving any property to her.

Learned counsel for the appellants further submitted that in the suit filed by Karnail Kaur though it is pleaded that there is a will executed by Gurbachan Kaur deceased in favour of Bhajan Singh but the same has not been challenged. Only the sale deeds have been challenged. In the absence thereof, the learned Courts below could not have opined that the power of attorney or the Will executed by Gurbachan Kaur in favour of Bhajan Singh was surrounded by suspicious circumstances as there was no issue regarding the same.

On the other hand, learned counsel for the respondent-plaintiff Karnail Kaur submitted that the conduct of the appellant Bhajan Singh is evident from the fact that he even denied that she is the daughter of Gurbachan Kaur. Gurbachan Kaur died at the age of 70 years. She retired as Nurse and was drawing pension from the Punjab Government. She used to sign all documents. The fact that on the Will as well as power of attorney her thumb impression has been put clearly established that the same were executed under suspicious circumstances. It was merely a month prior to the date of her death on 15.3.1999 as both the documents were executed on 16.2.1999. Mere registration will not add credit to these documents rather the conduct of Bhajan Singh shows that he was out to grab the property of Gurbachan Kaur deceased. It is within a week of execution of power of attorney in favour of Bhajan Singh that he transferred the entire property in the name of his son Ranjit Singh and daughter-in-law Balwinder Kaur widow of Mohinder Singh, another son, vide sale deeds dated 18.2.1999 and 23.2.1999. Just three days prior to her death, he even raised a loan from the bank on the FDR in the name of Gurbachan Kaur, whereas she was not in need of any money as regular pension was being drawn by her. Where the sale proceeds of land have gone is also not known. In fact that amount also must be available with Gurbachan Kaur deceased, hence, there was no need for raising loan against FDR. He further submitted that specific challenge to Will and general power of attorney was not required as the same was consequential, once Karnail Kaur is declared to be the owner of the property. The Will and general power of attorney were projected in defence by the appellant, hence, he needed to prove their genuineness. He further submitted that even Gurcharan Kaur widow of Rattan Singh another brother of deceased Gurbachan Kaur had supported her case. The suspicious circumstances under which the Will and general power of attorney were got executed in favour of Bhajan Singh have been discussed in detailed by the trial court, the findings whereof has been upheld by learned Lower Appellate Court, the same do not call for any interference by this Court.

Heard learned counsel for the parties and perused the paper book and the relevant referred record.

As far as the issue regarding Karnail Kaur being the daughter of deceased Gurbachan Kaur is concerned, the findings to that effect are not impugned. The only issue raised is as to whether Will and power of attorney executed by Gurbachan Kaur deceased is surrounded by suspicious circumstances. Bhajan Singh in whose favour these two documents have been executed is brother of deceased Gurbachan Kaur. Both the aforesaid documents were executed on 16.2.1999, whereas Gurbachan Kaur died on 15.3.1999. Deceased Gurbachan Kaur retired as a Nurse and was drawing pension. She used to sign all documents but still on the Will as well as the power of attorney, her thumb impression has been put. Though it was claimed by the appellant that at the fag end of her life, she suffered from Paralysis and thumb marked her pension documents also but no evidence to that effect has been referred to. Her thumb impression on the Will or the General Power of attorney has not been compared with her standard thumb impression.

DW 1 Malkiat Singh, Numberdar of village Mukdi, one of the attesting witnesses on the Will, in his cross-examination stated that he was called not by the executor of the Will, but another attesting witness Manjodh Singh, father-in-law of Ranjit Singh son of Bhajan Singh. He also stated that he was not at visiting terms with Gurbachan Kaur. He only knew Bhajan Singh. Manjodh Singh did not step into the witness box. Village Mukdi where Gurbachan Kaur was residing falls in Tehsil Talwandi Bhai, where the Will could be registered. The document writers are also available there but the same was got registered at Ferozepur. This also creates suspicious as it was claimed that deceased Gurbachan Kaur was suffering from Paralysis. Under these circumstances, it was difficult for her to go far off place as compared to Talwandi Bhai. Though the plea was sought to be raised that on Thursday, the date of execution of the Will, no registration work used to be done at Talwandi Bhai, but still there was no urgency that the Will was to be executed on that day only. To avoid inconvenience to an ill person, the same could be executed on the next day as well. This argument hits both ways. Once in support of the plea that thumb impression was taken as Gurbachan Kaur was suffering from paralytic attack, whereas on the other hand it was claimed that she executed the Will in good health and mind. These are to contradictory pleas. Once plea of paralytic attack was raised, it was for the defendants to explain that despite this attack her mental ability was not disturbed but there was nothing proved on record.

On the one hand, defendant no. 1 stated that he was not present at the time of execution of the Will and the power of attorney as the same was disclosed to him by Gurbachan Kaur 15 days thereafter. However, from the material on record, the statement is belied. As the alleged power of attorney is dated 16.2.1999 and defendant no. 1 ultimately got one sale-deed of the property owned by Gurbachan Kaur executed on 18.2.1999 and three sale-deeds on 23.2.1999 in favour of his son Ranjit Singh and daughter-in-law Balwinder Kaur. If deceased Gurbachan Kaur had executed the Will in favour of Bhajan Singh, where was the need to execute the power of attorney for selling the land and further for transferring the same in the name of son and daughter-in-law of Bhajan Singh. When she was well, sale deeds could be got registered by her directly in favour of vendees on the day power of attorney was got registered. This coupled with the fact that even a loan of Rs. 1,50,000/- was raised against the FDR in the name of Gurbachan Kaur on 12.3.1999, just three days prior to her death. If Gurbachan Kaur had received the sale proceeds of the property sold by her where was the need to get a loan from the bank. There is nothing on record to prove that she utilised the sale proceeds of the property for any purpose. In fact, the entire material placed on record suggested that Bhajan Singh was ought to grab the property of Gurbachan Kaur by adopting all means.

It is also a fact that deceased Gurbachan Kaur was drawing pension as she retired as Nurse, hence, there was hardy any need of money to sell the property or even raise the loan from the bank. Once it is proved that deceased Gurbachan Kaur was having a bank account, the sale-proceeds of the property amounting to Rs. 14,00,000/- should have been deposited in her bank account. This, in fact, shows that no amount exchanged hands. It was a transaction in the family with a view to grab the property without any consideration.

The overt act on the part of the appellant-defendant is evident from the fact that once, according to him, the Will had been executed by Gurbachan Kaur in his name, where was the need to execute the power of attorney. He wanted to cover up the issue from all sides as in case of challenge to Will, he could plead that the sale transactions being on the basis of a power of attorney executed by Gurbachan Kaur deceased during her life time could not be questioned.

The contention raised by learned counsel for the appellants that the validity of the Will has not been challenged is to be merely noticed and rejected for the reason that the entire case of the parties is regarding validity of the Will and the power of attorney, allegedly executed by deceased Gurbachan Kaur in favour of Bhajan Singh. They had understood the case and led the evidence also regarding the validity of the Will and the power of attorney.

For the reasons mentioned above, in my opinion, the judgments and decrees of the learned Courts below do not call for interference by this Court. No substantial question of law arises. The appeals are accordingly dismissed.