Sat Pal vs Sadhu Ram

S.S. Sodhi, J.—Validity of a Will said to have been written by the Testatrix, on the dictation of the sole beneficiary thereunder, is the main point in issue in appeal here. This matter has arisen in the context of the property in suit which was owned by Smt. Rajo, who died issueless sometime in May, 1956 and the claim to�it-put-forth by the plaintiff-Sadhu Ram, under the said Will.

Admittedly, the plaintiff Sadhu Ram was no relation of the testatrix Smt. Rajo and what is more, the Will in question Exhibit P3 did not see the light of the day until the filing of the present suit which was about 17 years after the death of Smt. Rajo. It is pertinent to note in this behalf that even in the suit, the reference to the Will came only in the replication and not the plaint.

The Will in question Exhibit P3 is an unregistered Will, which according to the plaintiff was written by Smt. Rajo in her own hand at her residence in the village, on his dictation. There were two attesting witnesses of this Will Hari Ram and Sat Pal, but only one of them was examined as a witness in court namely; PW4 Sat Pal a relation of the plaintiff Sadhu Ram. In a case like the present where such a prominent role has been played by the beneficiary under the Will in its execution, a heavy burden is placed upon such beneficiary to remove all trace of suspicion with regard to the execution of the Will. In such a situation, the non-production of an attesting witness, not under the influence of the beneficiary or related to him, does assume significance and indeed tends to raise an adverse inference'' against the plaintiff, specially, when no explanation is forthcoming to account for this attesting witness not being examined to prove the Will.

The defendants here are the sons of the brother of Smt. Rajo''s husband. It was their plea that. Smt. Rajo was an illiterate lady, meaning thereby, that the Will could not have been written by her. Here again, it is pertinent to note that counsel for the plaintiff could advert to no material on record to show that Smt. Rajo could read and write. If indeed, she was literate, some documents in the form of letters or petitions could have been produced by the plaintiff. Such evidence too is not forthcoming.

Next to note is that there is no plausible explanation on record to account for the Will having been executed by Smt. Rajo in favour of the plaintiff, who was admittedly not in any manner related to her in preference to her husband''s brother''s sons.

Last, but not the least, is the circumstance that the Will in question did not see the light of the day for over a decade and half after the death of Smt. Rajo. To this too, counsel for the plaintiff could offer no credible or worthwhile explanation.

In the totality of the circumstances surrounding the execution of the Will, in the light of the evidence on record, the finding in favour of the validity of the Will, as recorded by the courts below cannot, but be held to be patently erroneous and wholly unwarranted and is accordingly hereby set aside. This being so, the plaintiff cannot be heard to lay claim to the property in suit on the basis of the Will Exhibit P3.

Faced with this situation, counsel for the plaintiff sought to advert to the rent deed Exhibit P2 said to have been executed by one Thakur Das in favour of the plaintiff-Sadhu Ram, in September, 1969. This rent note can, at best, point to only the possession of the plaintiff, but not ownership under the Will. This cannot, therefore, advance the plaintiff''s claim for the relief sought.

It will be seen that no clear finding appears to have been recorded by the courts below regarding possession of the property in suit. As a matter of abundant caution, therefore, a decree is hereby granted to the plaintiff to the extent that if he is in possession of the property in suit, he shall not be dispossessed except in due course of law. The judgment and decree of the lower appellate court is modified to this extent. This appeal is accepted accordingly with costs.