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Judgment
Parmod Goyal, J.
Present regular second appeal has been preferred by appellant/defendant No.1 being aggrieved by judgment and decree dated 09.08.2000, passed by learned Additional District Judge, Gurdaspur whereby first appeal preferred by respondents/plaintiffs was allowed and judgment and decree dated 16.10.1996 passed by learned Additional Civil Judge (Senior Division), Gurdaspur vide which suit for declaration preferred by respondents/plaintiff was dismissed, was set aside.
Respondents/plaintiffs in their suit for declaration had claimed themselves to be owner of suit property to the extent of 1/6th share along with defendants. It was asserted that respondents/plaintiffs and defendants are real brothers. That their brother Salwinder Singh had died leaving no other heir except for respondents/plaintiffs and defendants as he had died unmarried and issueless. It was claimed that Salwinder Singh had executed a Will on 01.10.1991 in the favour of respondents/plaintiffs and defendants and accordingly, they are entitled to 1/6th share each in disputed property. It was claimed that appellant/defendant No.1 had wrongly got mutation sanctioned in his favour on the basis of another Will which was never executed by their brother Salwinder Singh. The said Will relied upon by appellant/defendant No.1 was stated to be forged and fabricated and accordingly, declaration was sought.
Appellant/defendant No.1 had contested the suit and took number of preliminary objections as regards to maintainability etc. It was asserted that Salwinder Singh was residing with him and due to services rendered to him out of love and affection, Salwinder Singh had executed a Will dated 25.09.1991 in the favour of appellant-defendant No.1. It was claimed that Salwinder Singh had never executed any Will dated 01.10.1991 in the favour of respondents/plaintiffs. It was claimed that mutation was rightly sanctioned on the basis of Will dated 25.09.1991, accordingly, dismissal of suit with special costs under Section 35-A CPC was prayed for. Defendant Nos.2 and 3 had also supported the claim made by appellant/defendant No.1.
From the pleadings of parties, following issues were framed :-
Whether the plaintiffs and defendants are owners of 1/6th share each in the land in disputed as alleged?OPP
Whether the plaintiffs are entitled to the injunction prayed for? OPP
Whether Salwinder Singh executed a valid will in favour of
Mohan Singh, defendant No.1 on 25.09.1991? OPD.
Relief.
Learned Court of First Instance had decided issue No.1 against respondents/plaintiffs and Will dated 01.10.1991 Ex.P1 was not accepted. Issue No.3 was decided in favour of appellant-defendant No.1 and Will dated 25.09.1991 was upheld to have been executed by Salwinder Singh in favour of appellant/defendant No.1. Issue No.2 was decided against respondents/plaintiffs and accordingly, suit was dismissed.
However, learned First Appellate Court had found both the Wills, one propounded by respondents/plaintiffs i.e. Will dated 01.10.1991 Ex.P1 and the other propounded by appellant/defendant No.1 i.e. Will dated 25.09.1991 Ex.D1 to be suspicious and not proved and held that the estate of Salwinder Singh would be succeeded by way of inheritance and not on the basis of Wills relied upon by both the parties.
In the present case, on one hand respondents/plaintiffs had relied upon Will dated 01.10.1991 Ex.P1, on the other hand, appellant/defendant No.1 had relied upon Will dated 25.09.1991 Ex.D1. Learned Court of First Instance had rejected Will dated 01.10.1991 which was propounded by respondents/plaintiffs on the ground that same is doubtful being surrounded by suspicious circumstances thereby rejecting evidence of Sukhdev Singh Pannu, Advocate scribe DW-2, respondent No.2/plaintiff Mohinder Singh (PW-1) as well as that of Chanan Singh (PW-3) and Piara Singh (PW-4) attesting witnesses of Will dated 01.10.1991.
Learned Court of First Instance had duly noticed that testator had died on 03.10.1991 i.e. a day after the execution of alleged Will dated 01.10.1991 and had also taken note of ration card Ex.D2, voter list Ex.D3, medical records as well as photographs and evidence led by appellant/defendant No.1 to the effect that deceased-Salwinder Singh was living with appellant/defendant No.1 at the time of his death and his last rites were also performed by none but appellant/defendant No.1.
Learned Court of First Instance had also taken note of fact that previous Will dated 25.09.1991 was not mentioned while executing Will dated 01.10.1991, raising grave doubt over Will dated 01.10.1991. Learned Court of First Instance however, had duly accepted the evidence led by appellant/defendant No.1 regarding due execution of Will dated 25.09.1991 and had accordingly, dismissed the suit preferred by respondents/plaintiffs.
Learned First Appellate Court though had agreed with the conclusion drawn by learned Court of First Instance as regards to Will dated 01.10.1991, however, had disagreed with learned Court of First Instance on Will dated 25.09.1991 propounded by appellant/defendant No.1. Learned First Appellate Court had concluded that Will dated 25.09.1991 was also surrounded by suspicious circumstances and had rejected the Will on the following grounds:-
That from the evidence led by appellant/defendant No.1, it is clearly proved that deceased was not having good health, he was undergoing medical treatment and even Tarsem Singh (DW-2) attesting witness to the Will dated 25.09.1991 had admitted fact regarding illness of testator.
That none of the witnesses examined by appellant/defendant No.1 had stated before the Court that testator was of sound disposing mind and was in a good state of health to execute the Will after understanding the same.
That date written on the Will dated 25.09.1991 was written with different ink than the one used in the body of the Will.
That registration of Will after death of testator on 06.12.1991 is of no consequence and rather raises doubt as appellant/defendant No.1 had failed to explain why Will was not registered when testator had executed the Will at Tehsil Office on 25.09.1991.
That both Tarsem Singh (DW-2) and Amrik Singh (DW-4) had stated that testator had purchased the stamp paper from Tehsil compound whereas, Will dated 25.09.1991 was not on stamp paper but was on plain paper.
That Amrik Singh (DW-4) had claimed and stated that he had prepared a rough note prior to scribing the Will, however, said rough note was not produced in evidence.
After taking in consideration above-noted suspicious circumstances as well as discrepancies in evidence of attesting witnesses as well as scribe, learned First Appellate Court had concluded that even Will dated 25.09.1991 was not beyond suspicion and had rejected the same.
In the present case, both respondents/plaintiffs and appellant/defendant No.1 had examined scribe as well as attesting witness to prove their respective Wills. In order to prove Will dated 01.10.1991 Ex.P1 scribe of the Will Sh. Sukhdev Singh Pannu, Advocate was examined as PW-2 whereas attesting witnesses Chanan Singh and Piara Singh were examined as PW-3 and PW-4 respectively. On the other hand, appellant/defendant No.1, in order to prove Will dated 25.09.1991 Ex.D1 in his favour had examined Amrik Singh, Scribe as DW-4, attesting witness Tarsem Singh as DW-2.
There is no dispute regarding fact that deceased had died on 03.10.1991 within 08 days of Will dated 25.09.1991 and 02 days from Will dated 01.10.1991. It is also not in doubt that both the Wills dated 25.09.1991 and 01.10.1991 were unregistered Will and Will dated 25.09.1991 was registered on 06.12.1991 after the death of deceased-Salwinder Singh on 03.10.1991.
In order to prove Will, propounder of Will is bound to prove its due execution by testator in presence of attesting witnesses. The testator as well as attesting witnesses must have signed the Will in the presence of each other. In order to prove Will, it is also necessary to prove that testator was in sound disposing mind to understand and execute Will with free will. It is also duty of propounder of the Will to remove all the suspicious circumstances which may be raised and shown to have been surrounding the Will. The evidence of attesting witnesses, scribe and beneficiary have to be appreciated keeping in view above-noted requirements which are required to be established before Will is accepted to be proved in accordance with law.
On appreciation of evidence led by respondents/plaintiffs, I find that conclusion of learned Court of First Instance as well as learned First Appellate Court rejecting Will dated 01.10.1991 cannot be held to be erroneous or perverse. In fact, both the Courts have in detail appreciated the evidence led by respondents/plaintiffs and have rightly concluded that Will dated 01.10.1991 was surrounded by suspicious circumstances.
Both the Courts have duly appreciated that propounder of the Will namely Salwinder Singh was not residing with respondents/plaintiffs but was residing with appellant/defendant No.1 at the time of his death. Learned Courts below have duly taken notice of ration card Ex.D2, voter list Ex.D3, photographs as well as medical records showing that deceased was looked after by appellant/defendant No.1 at the time of his death have rightly been relied upon by Courts below. Learned Courts below have rightly appreciated evidence led by respondents/plaintiff and had rightly held that it was surrounded by suspicious circumstances such as:-
That Will was just 02 days prior to death of deceased, specially when deceased was unwell and not living with plaintiffs.
That date of Will was with different ink than the ink used in the body of Will.
That there was no mention in the Will that it was written by Sukhdev Singh, Advocate, Scribe (PW-2) and had not produced relevant entry No.727 regarding the Will.
That Will dated 25.09.1991 finds no mention and was not cancelled while executing the Will.
None of the above-noted suspicious circumstances have been dispelled away by the respondents/plaintiffs. Therefore, the conclusion drawn by learned Courts below as regards to validity of Will dated 01.10.1991 is upheld.
As far as Will dated 25.09.1991 in favour of appellant/defendant No.1 is concerned, same has been accepted by learned Court of First Instance but has been rejected by learned First Appellate Court finding same to be surrounded by suspicious circumstances which appellant/defendant No.1 could not dispel.
On consideration, I also find merit in the conclusion drawn by learned First Appellate Court. Learned First Appellate Court had rightly appreciated the evidence led by appellant/defendant No.1 and had rightly concluded that Will dated 25.09.1991 was also surrounded by suspicious circumstances i.e. :-
That deceased was not having good health and was undergoing medical treatment as is made out from evidence led by none but appellant/defendant No.1.
That deceased had died within 08 days from date of execution of Will and therefore, it was necessary for appellant/defendant No.1 to show that he was in sound disposing mind at the time of execution of Will and was able to understand and execute the Will with free will and his free will was not hampered by his illness which stands duly proved. However, no evidence in this regard was led by appellant/defendant No.1, attesting witness as well as scribe both have not stated that testator was in sound disposing mind though they had admitted that he was not well and was undergoing treatment.
That date of Will was written with different ink than the ink used in body of Will.
No explanation was given by propounder of Will as to why Will was registered on 06.12.1991 and not on 25.09.1991 when as per witnesses, Will was executed in Tehsil.
That both Tarsem Singh (DW-2) and Amrik Singh (DW-4) had stated that Will was executed on a stamp paper which was purchased by testator himself from Tehsil compound whereas Will was not on stamp paper but was on plain paper as is made out from Ex.D1.
The conclusions drawn by learned First Appellate Court noted-above have gone unrebutted before this Court also whereas, learned Court of First Instance had ignored all above-noted suspicious circumstances and had accepted the Will merely on the ground that deceased was staying with appellant/defendant No.1 at the time of his death and was being looked after by appellant/defendant No.1. No doubt, the fact that deceased was living with appellant/defendant No.1 is important and relevant fact and was therefore, rightly taken in consideration while ignoring Will dated 01.10.1991 propounded by respondents/plaintiffs. Fact that testator of Will was living with appellant/defendant No.1, no doubt is a positive piece of evidence in favour of appellant/defendant No.1, however, by itself is not sufficient to dispel suspicion arisen over the Will noted-above.
In the present case, the time gap between execution of Will and death of testator is just 08 days and during the said 08 days, testator of Will was not well and was under treatment and therefore, it was very necessary to prove that testator of Will dated 25.09.1991 was in sound state of mind as to execute Will freely, however, evidence to this effect is totally missing. Therefore, along with other suspicion circumstances noted-above, the only conclusion in facts and circumstances of the present case, would be that both the wills, one propounded by respondents/plaintiffs and another propounded by appellant/defendant No.1, which were executed just 2 and 8 days prior to death of deceased respectively, who was unwell at the time of his death are surrounded by suspicious circumstances and none can be accepted to have been executed by the deceased-Salwinder Singh.
In view of above findings, I do not find any error in the impugned judgment and decree dated 09.08.2000 passed by learned First Appellate Court. There is no merit in the present appeal, hence dismissed.
Pending application(s), if any, is/are disposed of accordingly.