(1) The suit and land measuring 238 kanals and 7 marlas was at one time in occupation of Udham Singh as an occupancy tenant. On the death of Udham Singh, his two widows Jai Kaur and Harbans Kaur came into possession of the suit land. The two widows died in succession on 14th April, 1946 and 27th January, 1951, respectively. On the death of the second widow Harbans Kaur, Raj Kaur, mother of Udham Singh, claimed to succeed under section 59(c) of the Punjab Tenancy Act and the revenue authorities mutated one half of the land in occupation of Udham Singh as an occupancy tenant in favour of Raj Kaur and the other half in favour of Raj Kaur and the other half in favour of the respondents Dharam Singh and Bachan Singh, who are fourth degree collaterals of Udham Singh. Raj Kaur claiming succession to the entire land brought a suit for possession in 1955 but the trial Court maintained the mutation by which she was given one-half share. The decree was passed on 21st of June, 1956, only for one-half of the land of Udham Singh and the suit was dismissed in respect of the remainder. In fact, this decision was based on admissions made by parties at the time of mutation. Raj Kaur died on 23rd of July, 1956, after the decree of the trial Court. Chhanga Singh and Mehar Singh nephews of Raj Kaur, field an appeal claiming to succeed to the property of Raj Kaur as legatees under a will executed in their favour on 18th of June, 1956. Before the learned District Judge, the validity of the will was challenged by the respondents and the following issue was framed by him:
'Are the petitioners appellants the legal representatives of Mst. Raj Kaur deceased plaintiff and as such have a locus stand to institute the appeal?'
(2) A preliminary objection was taken by Mr. Mittal that in view of the decision of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Saroj bashini Bose, AIR 1926 SC 1471 the claim of Chhanga Singh and Mehar Singh could not be entertained without a probate or letters of administration attached to the will. It was one of the points which were raised before the Division Bench in F. A. No. 32 of 1955: (AIR 1965 Punj 140) Mst. Ashrafi v. Tirlok Chand, and according to the statements of the counsel made at the bar the point raised by Mr. Mittal is no longer available to the respondents in view of the decision given by the Division Bench in Mst. Ashrafi's case, F. A. No. 32, of 1955: (AIR 1965 Punj 140) delivered after the vacation in 1964.
(3) As mentioned before, the point for determination in this appeal, therefore, is whether the finding of the learned District Judge about the locus stand of the appellants can be upheld? The will Exhibit A. 1 of 18th of June, 1956, executed by Raj Kaur, widow of Arjan Singh of village Ladipur mentions that she was widowed about 46 years ago and her son Udham Singh had Pre-deceased his two wives who also died in quick sessions without leaving any issue. Mehar Singh, her brother's son according to the recitals of this will, had been living with her since he was one year old. She has mentioned that Chhanga Singh, her other nephew like Mehar Singh, had been assisting her to regain possession of the lands belonging to her son Udham Singh which the collateral had obtained by the force. Both these nephews had expended lot of money on litigation on her behalf. Chhanga Singh had also been acting as her attorney. In lieu of the services which these two nephews had rendered she bequeathed her entire property to them and declared them to be the legatees of her estate. Both Chhanga Singh and Mehar Singh were to hold the estate of the testatrix in equal shares.
(4) The will appears to be natural document and does not appear to have been executed under any stress or pressure. In fact, it was the help given to Raj Kaur in the litigation with Chhanga Singh and Mehar Singh which made them the object of her bounty. The will is thumb-marked by the testatrix and there are as many as five persons who have signed as attesting witnesses these being Daya Singh, Amar Singh son of Bhaggu, Shiv Ram, Waryam Singh and Amar Singh Lambardar. The learned District Judge has referred to the contradictory position adopted by the attesting witnesses without giving any consideration to the surrounding circumstances and events preceding the execution of the will.
The scribe of the will is Ram Rakha Mal A. W. 1 and according to his testimony, the contents were read over to Raj Kaur who thumb-marked it after admitting it to be correct in presence of all the attesting witnesses. The attesting witnesses, as stated by the scribe, all appended their signatures on the document in her presence. Raj Kaur, according to the scribe, was in perfect senses when she could well understand her interests. The testimony of Ram Rakha Mal is supported by an entry in his register. Being a resident of Lodipur, Raj Kaur came to Anandpur Sahib which is at a distance of one mile from that village to get the will executed. At Anandpur Sahib, she stayed in the house of Shiv Ram A. W. 5 who is also an attesting witness. According to Shiv Ram, Raj Kaur executed Sahib in the company of Chhanga Singh and Mehar Singh and it was scribed by Ram Rakha Mal at the instance of Raj Kaur and it had been read over to her before she thumb-marked the will which had been read over to her. It is true that Raj Kaur came to the house of Shiv Ram at Anandpur Sahib in the company of Chhanga Singh and Mehar Singh. Shiv Ram's evidence cannot be brushed aside because his neighbour Lohara Singh is married to the sister's daughter of Chhanga Singh. Raj Kaur had not been keeping very well but it must be borne in mind that she was about 70 years of age. As observed by their Lordships of the privy Council in Judha v. Isolyne Sarojbashini Bose, AIR 1945 PC 174 the fact that the testator was unwell when he executed the will is a long way from saying that the had not testamentary capacity. Some other witnesses have spoken of the ill health of Raj Kaur but as observed in a Bench decision of the Bombay High Court of Chief Justice Macleod and Shah J. in Gordlandas Nathalal Patel v. Bai Suraj, AIR 1921 Bom 193 the testator of a will does not have to be found to be in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to give the outlines of the manner in which his estate was to be disposed of.
Considering the background of litigation which Raj Kaur was fighting with the collaterals and the help which she was receiving from /chhanga Singh and Mehar Singh it did not require much thinking or reflection as to which side her interest lay and the will has to be read in its true perspective. There is evidence of Shiv Ram to suggest that Raj Kaur had been ill and was being treated by a doctor but as observed by their Lordships of the Privy Council, this is not a circumstances which affects the validity of the will. Shiv Ram is not interest in Chhanga Singh and the evidence given by him is unbiassed and worthy of belief.
(5) Shiv Ram is supported by Amar Singh son of Bhaggu, A. W. 6. This witness deposed that the will was thumb-marked by Raj Kaur after its contents had been read over and the signatures of the attesting witnesses were appended in her presence later. The questions asked from Amar Singh and Shiv Ram in cross-examination do not lead to any adverse inference about their credibility. waryam Singh A. W. 4 is another attesting witness who has supported the due execution of the will. According to this witness, Raj Kaur was in good health on the day when the will was executed. Waryam Singh is an attorney of Mangal Singh against whom the respondents had instituted a pre-emption suit one or two years ago. There is no other suggestion that Waryam Singh would be telling a falsehood.
(6) The discordant note is struck by the two witnesses, Amar Singh, who is a Lambardar of Lodhipur and Daya Singh A. W. 3. According to the statement of Amar Singh, he was called there when the will had already been executed by Raj Kaur who was lying on a charpoy. He signed as a witness on the asking of Chhanga Singh. Raj Kaur did not thumb-marked the will in his presence, nor did he put any question about its contents. Amar Singh's testimony is clearly against the weight of the other evidence when he says that no other witness signed the will in his presence. Daya Singh A. W. 3 has stated that he was making some purchases in the bazar when Chhanga Singh came to call him to attest the will executed by Raj Kaur. It may be that he was called as a matter of abundant caution to append the signatures as an attesting witness after the will had been executed but it is important to observe that even according to Daya Singh, Raj Kaur had expressed her assent to the contents of the will by nodding her head. What he said was that he could not remember as to whether Raj Kaur had thumb-marked and the will in his presence. In a Full Bench judgment of the Madras High Court in Ghanshamdoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 it was held that ' a personal acknowledgement of execution need not necessarily be restricted to an express statement to that effect, but may include words or conduct, or both, on the part of the testator which may be contrued unequivocally as such an acknowledgement.' The evidence of Daya Singh at least shows that Raj Kaur had expressed her assent to the will and he himself had signed it as an attesting witness. It is explained by Chhanga Singh in his statement as A. W. 7 that Amar Singh A. W. 2 and Daya Singh A. W. 3 had been won over.
(7) The learned District Judge only took into account the discrepancies which existed between the statements of the three attesting witnesses on the one hand and the two on the other emphasised the bad health of the testatrix. The learned Judge did not take into consideration the true realities of the case; the natural character of the will, the surrounding circumstances and the manifest desire of the testatrix to confer benefit to the appellants who had been rendering assistance to her at the time of litigation. Judging as a whole, I have no doubt in my mind that the will was validly executed while Raj Kaur was in sound disposing mind.
(8) In this view of the matter, this appeal must succeed and the appellants who have clearly a locus standi to bring a suit must be held to be competent to a file the appeal. The case would be remanded to the learned appellate Judge for disposal on merits. There would be no order as to costs of this appeal.
(9) Appeal allowed.