Gurdial Singh Mann and Others vs Kulwant Kaur and Others

M.S. Liberhan, J.—This appeal arises out of the judgment and decree in a suit by the plaintiff respondents for declaration, joint possession partition and rendition of accounts decreed by the lower appellate Court.

The plaintiffs claimed Sahib Singh Mann to be the last male holder of the properties in dispute. The plaintiffs Kulwant Kaur, Jaswant Kaur, Rajwant Kaur and Basant Kaur are the daughters of Sahib Singh Mann, Gurdial Singh Mann Major Dharampal Singh Mann, Amarjeet Kaur, Madanjeet Kaur and Sukhpal Kaur are the daughter-in-law of Sahib Singh Mann and wives of Gurdial Singh Mann, Major Dharampal Singh Mann and Major Ram Pal Singh Mann respectively. Defendants Nos. 7 to 9 were the tenants on the land in dispute. Defendant No. 10 is the Improvement Trust who has acquired a part of the property. Sahib Singh Mann was the absolute owner and in possession of the properties in dispute. He was also owner of shares worth Rs.50,000/- in Jagjit Cotton Textile Mills, Phagwara. The plaintiffs claimed the land in dispute to the extent to 1/7th share each on the basis of his duly executed last Will dated 2nd February, 1972 in favour of the plaintiffs and defendants Nos. 1 to 3, i.e. his sons. The Will was stated to be in possession of Lt.Col.Gurdev Singh, one of the attesting witnesses of the Will. It was averred that defendant Nos. 1 to 3 exercised influence on the plaintiffs for not reporting the Will to the revenue authorities during the life time of their mother Smt.Lachhman Kaur in order to respect her sentiments, as no part of the estate was willed in her favour. It was only after her death on 3rd June, 1976 that the Will was put forth to stake her claim to the estate of the deceased Sahib Singh Mann, who died on 22nd November, 1974. The decree dated 16th February, 1971 passed in favour of defendants Nos. 4 to 6, the daughter-in-law, in a suit against Sahib Singh Mann, was challenged being collusive decree and being contrary to the version set up in the said suit with respect to the family settlement. It was averred that since there was no such family settlement, hence the decree was null and void. It was averred that defendants No.4 to 6 were judicially separated from their husbands, defendants Nos, 1 to 3 respectively. The plaintiffs claimed to have acquired the knowledge with respect to the sanctioning of the mutation on 28th April, 1975 in favour of the defendants only after the death of their mother. In the alternative, the plaintiffs claimed 1/7th share as the best legal heirs of deceased Sahib Singh Mann under Hindu Succession Act, 1956. The plaintiffs further claimed compensation money according to their share due from the Improvement Trust. It was averred that since the defendants has been dealing with the estate of the deceased and no accounts have been rendered, hence the rendition of accounts was sought.

Defendants Nos. 1 to 6 admitted, the relationship of the deceased with the plaintiffs, the absolute ownership and possession of the property of the deceased. It was averred that since the property described in head note ''A'' sub head of the plaint had been transferred to defendants Nos. 4 to 6 and the same was confirmed by the decree of Sub Judge 1st class, Bassi Pathana dated 16 February, 1971, and mutation was sanctioned in terms of the decree on 29th April, 1971, and mutation as sanctioned in terms of the decree on 29th April, 1971, the properties did not belong to the deceased at the time of his death. The defendants further claimed the exclusion of the plaintiffs and Smt.Lachhman Kaur, their mother, in view of the Will duly executed in their favour on 30th March, 1968. It was claimed that defendants rendered service to the deceased. The plaintiff''s were married in affluent families owing huge properties. The genuineness validity and execution of the Will dated 2nd Feb. 1972 was challenged. It was averred that since the deceased was a Sarpanch of village Khan Pur from 1960 till 1972 and during that period he affixed his seal and signatures on many written and blank papers as Sarpanch, the plaintiff might have utilized one of such papers forgoing the Will. It was averred that the Will dated 30th March, 1968 was impliedly accepted by the plaintiffs. It was averred that the deceased as well as Smt.Lachhman Kaur always wanted and intended to transfer the property to the defendants and acting with the said-intention had been transferred the property during their life time through a decree in favour of defendants Nos. 4 to 6. Various other pleas were also raised.

The other defendants only pleaded their tenancy.

The trial Court found that the decree dated 16th February, 1971, was not collusive, it was legal and valid and defendants Nos. 4 to 6 became owners under the said decree of the properties given therein. The Will dated 2nd February, 1972, was found not to be a valid Will, while, the Will dated 30th March, 1968 was found to be a valid one. It was further observed that no influence was exercised on the plaintiffs to persuade them not to put forth the Will dated 2nd February 1972. The mutation as found to be not a result of collusion. The suit was dismissed.

The lower appellate Court, in appeal, confirmed the findings of the Sub Judge on all other pleas except on the Will dated 30th March, 1968, which was found to be surrounded by suspicious circumstances which had not been explained. The lower appellate Court, thus, refused to act on the said Will as the last valid Will of the deceased. The suit as decreed and the plaintiffs were found to be entitled to 1/7th share of the deceased''s estate except the one transferred to defendants Nos. 4 to 6 under a decree.

The plaintiffs as well as the defendants challenged the judgment and decree of the Courts below in the Regular Second Appeals and both the appeals shall be disposed of by this judgment.

The plaintiffs half-heatedly challenged the finding with respect to the Will dated 2nd February, 1972. A feeble attempt was made to contend that/Will dated 2nd February, 1972 is a valid Will and all the suspicious circumstances surrounding it have been explained. The plaintiffs examined Ram Samp Sharma, Advocate, PW-1, the scribe of the Will, who admitted, that Sahib Singh as not known to him prior to the scribing of the Will and was introduced to him by one of the daughters of the deceased, and the Will was not signed his presence, and there was no seal of the Sarpanch under the signatures of Sahib Singh Mann, deceased. The Will itself appears to be of no consequence as it shows that the property has been equally distributed amongst the legal heirs who would have ordinarily succeeded under the Hindu Succession Act. The Will does not serve any object for its execution as it is a common experience that Will is always executed with one or the other object in view other than the natural course of succession. The attestation of the Will by Surjit Singh RW.4, who was admittedly not known to the deceased and was a close relation of plaintiffs Basant Kaur''s husband throws doubt about his attestation. He further admitted that he did not know the other attesting witness. The credibility of the attesting witness was also challenged on account of a case pending against him u/s 409 of the Indian Penal Code No.other witness was examined to prove the Will. Further, doubt was created because of the alleged execution of the Will at Chandigarh in 1972 and the same not being put forth till two years after the death of the last male holder. No sufficient reasons have been given for entrusting the said Will to Lt.Col.Gurdev Singh, one of the attesting witnesses, nor he was examined for the reasons best known to the plaintiffs. The Courts below have rightly disbelieved the explanation put forth by the plaintiff Kulwant Kaur''s P.W.2 that they were persuaded not to disclose the Will during the life time of their mother as she was not one of the beneficiaries, particularly when it is not disputed that she herself was owner of considerable land i.e.40 acres, before the death of their father, which she transferred to the daughters-in-law. Even the stamp of the Sarpanch on the Will alleged to have been executed at Chandigarh throws a reasonable doubts about its due execution.

In view of my above observations 1 affirm the findings of the Courts below that the Will Exhibit P-3 is not proved to be the last and valid Will of Sahib Singh Mann.

The counsel for the parties hotly jointed issue with respect to the Will dated 30th March, 1968 executed by the deceased in favour of the defendants excluding the plaintiffs. It was contended that the lower appellate Court has committed an error in considering the imaginary circumstances put forth by the plaintiffs as the suspicious one. The lower appellate Court has not kept in view the correct and true principles in view while appreciating the evidence with respect to the execution of the Will.

The learned counsel for the appellant, in orderto buttress his submission, relied upon Smt. Malkani Vs. Jamadar and Others, TaraSinghv. Smt. Shanti and others, 1988(1) R.L.R.346, Smt.Pritam Kaur and others v. Chanan Singh and others, 1985 P.L.J. 488 and Atma Singh v. Smt. Guro and others, 1983 C.L.J.75.

It Smt.Malkani''s case (supra) the Supreme Court observed:

"the only circumstances brought out was that the defendants who were the beneficiaries under the Will Exhibit D-1, had taken an active part in its execution. But he rightly observed that, that by itself was not sufficient to create any doubt either about the testamentary capacity of Mst.Pari or the genuineness of the Will".

In Smt.Pritam Kaur''s case (supra), after noticing the judgment of the Supreme Court, it was observed:

"The mode of proving a Will does not ordinarily differ from that of proving any other document except as to special requirements of attestation prescribed in the case of a Will by Section 63 of the Succession Act. In a case in which a Will is prepared under circumstances which raise the suspicion of the Court that it does not express the mind of the testator, the onus is upon the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. In such a case the Court naturally expects that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If, however, the propounder themselves take a prominent part in the execution of the Will which confer a substantial benefit on them that itself is a suspicious circumstances surrounding the execution of the Will and in appreciating evidence in such a case, the Courts should proceed in a vigilant and cautious manner."

In Atma Singh''s case (supra) the learned Judge observed:

"When a Will is not a compulsorily registerable document, no, prejudice could be shown to an unregistered Will. Had it been registered it would have been more easy for the legatee to prove the same. The Will cannot be disbelieved merely on the ground of non-registration.

It as further observed:

"The making of an intentionally wrong statement in the Will cannot case any doubt on the contents of those parts thereof which a specified property is bequeathed to the legatee. Anyway, the legatee cannot be made to suffer by some untruthfulness on the part of the testator.

In Tara Singh''s case (supra), it has been observed:

"Will has to be proved like any other document. Test of prudent mind''s satisfaction and not of mathematical certainty is only required. It has to be shown that the deceased was of sound disposing mind at the time of executing the Will and the provisions of Section 63 of the Indian Succession Act have been complied with. For proving execution of the Will it is to be shown to have been executed in the presence of two witnesses, who, in turn attested the same. In case, there are any suspicious circumstances, it is for the propounder of the Will to dispel them by leading cogent evidence to the satisfaction of the Court. Merely the witnesses being of a different village does not itself constitute a suspicious circumstance."

In Harmes and another v. Hinkson, AIR 1964 P.C. 156 it was observed:

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

The said judgments of the Privy Council found approval in the judgment reported in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others,

It has been observed in Dinesh Kumar Vs. Khazan Singh and Others, ivil Court Cases497 (Delhi) that:

"It is true that under Sections 67 and 68 of the Evidence Act the probate proceedings would not be vitiated only because one witness is examined. But when it is admitted that the second witness is alive and is available in the town, some further explanation is required from the propounder as to why the witness, although being available was not produced. It is another, as to what is impact of the absence of second witness on the question of genuineness of the witness".

It has been observed in Smt. Sushila Devi Vs. Pandit Krishna Kumar Missir and Others, ,that:

"The circumstance that no bequest was made to the appellant by the testator would make the Will appear unnatural but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid: If the bequest made in a Will appears to be unnatural then the Court has to scrutinize the evidence in support of the execution of the Will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but there is no gain saying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those execute Wills". It was further observed:

"Where, however, there are suspicious circumstances the onus would be on the propounder to explain them to the satisfaction of the Courts before the Will can accepted as genuine."

In Mirdad and Others Vs. Board of Revenue and Others, the judgment on which the respondents relied, it was observed:

"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 adversary proceeding becomes in such cases a mater 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. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances si-rrounding the making of the Will."

In Ramchandra Rambux v. Champabai and others, A.I.R.S.C. 354, it has been observed:

"In a case where attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repel the effect of such testimony. It will not do to talk airly about circumstances of suspicion. One who challenges the genuiness of the Will cannot be expected to prove the negative in many cases. At the same time, the difficulty in which, on his own seeking, he places himself, will not relieve him of the burden it may be a heavy burden of displacing the positive testimony."

It was further observed:

"If he rests his case on suspicion, the suspicion must be a suspicion inherent in the transaction itself which is challenged and cannot be a suspicion arising out of a mere conflict of testimony.

If there was evidence to show that the Will was actually made, it would not be relevant to enquire whether there was any occasion or motive for the execution of the Will, and that if such a test were to be applied in every case, no Will could probably be proved at all."

It was further observed that:

"In order to judge the credibility or the witnesses, the Court is not confined only to the way in which the witnesses have deposed or confined only to the way in which the witnesses have deposed or to be demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. This issue cannot be determined by considering the evidence adduced in the Court separately from the surrounding circumstances which have also been brought out in the evidence or which appear from the nature and contents of the document itself. Where there is a large and consistent body of testimony tending to show the execution of a Will by the testator, that evidence should not be lightly set aside on the theory of improbability".

Of course, it is observed that since the Will speaks from the death of the testator, it introduces an element of solemnity i the decision as to whether the document propounded is the last Will of the deceased.

It was further observed:

"Ordinarily when the evidence adduced in support of the Will is disinterested satisfactory and sufficient to prove the sound and disposing state of the testator''s mind and his signature as required by law Court would be justified in making a finding in favour of the propounder."

"In the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. However, where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same".

"Absence of pleas is of no consequence if the suspicious circumstances do exist, which may be with respect to signatures or condition of the mind of the testator".

From the judgments cited by the counsel for the parties and the principles laid down in the said judgments, it emerges:

(i) The execution of the Will has to be proved has any other document as envisaged u/s 67 and 68 of the Evidence Act.

It has to be proved that it was executed and attested according to Section 63 of the Indian Succession Act, i.e., the testator had signed in the presence of the witnesses attesting the same and the attesting witnesses had signed in the presence of the testator after receiving his acknowledgement with res'' jet of its execution.

(ii) It has to be shown that the Will was executed by a person, competent to execute, and of sound disposing mind at the time of its execution.

(iii) The suspicion, if any, has to be explained or removed to the satisfaction of the Courts conscience before the Will is accepted as the last Will of the testator.

(iv) The suspicious circumstances have to be explained to the satisfaction of a Court to the extent of a prudent mind''s satisfaction and not of mathematic certainty.

(v) That rules of dispelling suspicious circumstances under which the Will is charged enjoin a reasonable sceptician and not an odurate persistence in disbelief. It does not demand even in the suspicious circumstances a resolute and impenetrable incredulity.

(vi) Suspicions around the Will make the duty of the Court more onerous to scrutinise the evidence while appreciating it in a vigilant and cautious manner and in particular when the Will is unnatural.

(vii) In case the execution of the Will us surrounded with suspicions, it is a matter of Court''s conscience and it is for the Court to assess the evidence led by the propounder of the Will to show to its satisfaction that it was duly executed by the testator.

(viii) The suspicions have to be inherent in transaction itself which is challenged and cannot be assumed as the suspicions arising out of the mere conflict testimony.

(ix) Once the execution of the document is proved, motive of its execution is of no consequence except to explain the suspicious circumstances.

(x) While judging the credibility of the testimony of the witnesses, surrounding circumstances as well as the probabilities have to be taken into consideration to form a correct idea of the trustworthiness of the witnesses,

(xi) Ordinarily, in the absence of suspicious circumstances surrounding the will, proof of testamentary capacity and the signature of the testator s required by law is sufficient to discharge the onus of proving a will.

(xii) In case of allegations of undue influence, fraud or coercion, the onus is on the person who alleges the same,

(xiii) The participation of the beneficiary in the execution of the will by itself is not a sufficient circumstances to disbelieve the execution of the will, the only note of caution in such a case is that the Court should proceed in a vigilant and cautious manner while appreciating the evidence.

(xiv) Merely because the will is an unregistered will, no prejudice should be shown to it. The registration only makes the proving of the will easy for the legatees.

(xv) The making of an intentionally wrong statement in a will again by itself cannot cast any doubt on the contents of those parts thereof by which a specified property is bequeathed to the legatee nor the legatee can be made to suffer for some untruthfulness on the part to the testator. The Courts have to take into consideration what is the wrong statement and in what surrounding circumstances it was made.

(xvi) Merely the attesting witness being of a different village again does not by itself constitute a suspicious circumstance.

(xvii) It is the quality of the evidence which has to be considered and not the quantity. If only one of the attesting witnesses has been examined and for the other no explanation has been submitted, it itself does not cast doubt about the genuineness of the will though it may be taken into consideration while examining the will in its totality.

(xviii) The depriving of one of the natural heirs or the will being unnatural again in itself is not sufficient to discard the will. It enjoins a hard duty on the Court to satisfy it conscience about the due execution of the will with greater degree of care than usual. It is one of the reasons that the wills are usually executed to divert the natural course of succession or to confer a special benefit on a beneficiary. Every person must be presumed to act in accordance with the normal human behaviour but there is no gain saying the fact that some individuals do behave in an abnormal manner for the reason best known to them. The Judges cannot impose their own standard of behaviour on those who executed wills.

(xix) It is the totality of the circumstances which should be taken into consideration while judging the credibility of the witnesses and the explanation given with respect to the suspicious circumstances, if any, surrounding either its due execution or the testamentary capacity of the testator etc.

(xx) Once the execution of the will is proved by disinterested, satisfactory and sufficient evidence and the sound and the sound disposing mind of the testator is proved as required by law, the Courts would be justified in returning a finding in favour of the propounder.

(xxi) In the ordinary course, the Courts cannot go behind the motive for the execution of the will unless there are suspicious circumstances the explanation of which is sought in the motive.

Keeping the above principles in view, I was taken through the evidence of the parties. The undisputed facts which emerged from the evidence are that each page of the will was signed by the testator. Even the corrections were made in the will in the hands of the testator. The above said facts wee not seriously challenged during the arguments also. The scribe of the will who had drafted and got it typed was advocate, who is alive, and was summoned as a witness but was examined as a witness. Though on one date of hearing the witness showed his inability to come and thereafter no serious steps were taken either by the plaintiffs or by the defendants to produce him in the Court.

The counsel for the respondents contended that since in the heading of the will, the date is handwritten and the rest of the will was signed by the testator. Even the corrections were made in the will in the hands of the testator. The above said facts were not seriously challenged during the arguments also. The scribe of the will who had drafted and got it typed was advocate, who is alive, and was summoned as a witness but was not examined as a witness. Though on one date of hearing the witness showed his inability to come and thereafter no serious steps were taken either by the plaintiffs or by the defendants to produce him in the Court.

The counsel for the respondents contended that since in the heading of the will, the date is handwritten and the rest of the will is typed, it throws a suspicion about its execution. In my considered opinion, this by itself is not a suspicious circumstances as it cannot be lost sight of that the plaintiffs themselves put forth an alleged will alleged to have been scribed by a lawyer and passed on to the deceased for its execution. The deceased appeared to be known to the lawyers and had been meeting them being a big and influential landlord. He was further conversant with the intricacies of law as would be obvious from the undisputed facts that in order to save his surplus land from the purview of the land laws decrees for judicial separation were obtained and the land was transferred to various family members etc. In such circumstances, getting a will scribed from a lawyer and putting in the date on the will by hand is not something which is very unnatural.

The counsel for the respondent further contended the reading the will in itself shows that he was writing the will as if he did not know whether any will was executed by him earlier. Added to it, it was written in the last part of the will that in case of any change in the will, the same would be notified to the sons. I again find nothing abnormal in this to doubt the will as the testator relied on the lawyer for drafting the will, who for the reasons best known to him, added these surplus age. The counsel for the respondents contended that the will is unnatural since the daughters were deprived of the deceased by the will in particular when there was no bad blood between the father and the daughters. Secondly giving of Rs.5000/- to a daughter is too partly a sum. There are no reasons attributed for the exclusion of Lachhman Kaur. The addresses of the witnesses and who typed the will was not disclosed and this cast another suspicion. It was contended that the will contained false and suspicious recitals inasmuch there was no partnership and there was no earlier will executed reference with respect to revocation of which had been made in the will. Further false statements were made with respect to the disposal of the property which had already been disposed of in favour of the daughter-in-laws by a decree. It was contended that the deceased was an instrument in the hands of the beneficiaries. Further, the statements of the attesting witnesses to the effect that though the will was signed in English it was explained to them in Punjabi, and the same had not been executed in their presence, their evidence cannot be relied as in ordinary normal-course of human conduct, an uneducated person would not be sent for to attest a will executed in English and then to explain in Punjabi. It was further contended that the attesting witnesses are under the influence of the appellants being either their ex-employees or presently employed with them.

I find no force in the contention raised by the counsel for the respondents. The attesting witnesses are none else but the old trusted employees of a big landlord, and they were well known in the family. Merely the absence of their addresses is of no consequence. Name of the lawyer drafting the will was known to both the parties and he was summoned as witness though for the reason best known to the parties, was not examined, probably under the advice of the lawyer conducting the case, in particular when the execution of the will i.e. signatures had been proved by the attesting witnesses and nothing was elicited in their cross examination to doubt them, there was no need to examine him. Merely being the employees or ex-employees of the beneficiaries or of the deceased odes not make the witnesses as untruthful in particular when the signatures on each page of the will as well as the corrections made in the will were in the hand of the deceased which fact was no challenged. D.W.6 satisfactorily explained all the suspicious circumstances imagined though they did not arise out of the document itself. So far as the contention raised that the will contained false recitals was concerned, I find no force in this. There is no false recitation in the will. Rather an attempt was made to give additional credence or support to the transfer of the properties made to his daughters-in-law by a decree. An attempt has been made by the testator to ensure that nobody stakes claim to the property transferred to the daughters-in-law. It was not disputed that the deceased lived for more than six years after the execution of the will. No attempt was made by the deceased to revoke the will. No reference was made to the will in a subsequent alleged will having been executed in favour of the plaintiffs. It appears that the testator wanted to keep secret from his daughters with the bequeathing of property to the sons alone. There is nothing abnormal in this part of the country to deprive the daughters of the ancestral property and the wills are generally executed in order to keep the estate of the family amongst the male descendants. No son has been deprived of his equal share of the property though two of them were not even present in the village or near about.

Keeping the totality of the circumstances in view and the facts and circumstances proved on the record I am of the view that will has been duly executed by a sound disposing mind and there are no reasonable grounds to decline to act on it.

The undisputed fact of the plaintiffs having been married in the influential and respectable families having properties added to the motive on the part of the testator to give the property to his sons only. Giving Rs.5000/- to each daughter is only a sign of love or just token respect for them.

In view of my above observations, the finding of the lower appellate Court to the effect that the will dated 30th March, 1968 being surrounded by suspicious circumstances cannot be sustained and is set aside, the appeal is accepted, the judgment and decree of the lower appellate Court is set aside and that of the trial Court restored.

No order as to costs.