1. Ramji Lal father the parties, who died in the year 1965 owned and possessed the following properties in Ferozepur city :--
(i) Shop No. 96-A in Bazar No. 1.
(ii) Shop No. 166 in Bazar No. 3
(iii) House No. 162/9.
It may be mentioned here that his last mentioned property i. e. house no. 162/9 was sold by Ramji
Lal during his lifetime.
2. R. D.Gupta, plaintiff son of Ramji Lal filed a suit for partition of the properties mentioned at Nos. (I) and (ii) above, against his two brothers namely Amin Chand and Sita Ram and their sister Smt. Naraini Devi, claiming 1/ 4th share in the said properties. As Smt Naraini Devi, in her written statement disclaimed any interest in he inheritance to her father and stated that she had nothing to do with any of these properties and the properties may be divided amongst her brother i. e. the plaintiff and the two defendants, in accordance with the will of deceased Ramji Lal, the plaintiff sought an amendment in his plaint to raise his claim to 1/3rd share instead of 1/4th share in the properties in suit. As a result of the permission having been granted to amend the plaint, he filed the present suit for partition claiming 1/3rd share in the properties at Nos. (I) and (ii) above and did not level any challenge to the will dated July 31, 1964, alleged to have been executed by Ramji Lal deceased, which will was pleaded by Amin Chand Defendant in his earlier written statement also. As the stand of Amin Chand was that shop No. 166 had been bequeathed in his favour alone and the other shop No. 96-A had bee given to the other two brothers i. e. plaintiff R. D.Gupta and Sita Ram defendant in equal shares by their deceased father, the plaintiff had no right to claim partition of any property against him. Sita Ram defendant, however supported the claim of the plaintiff and further pleaded that Amin Chand defendant, his brother was accountable to the other co-owners for the rents received by him, of shop no. 166 and was liable to render accounts. The pleadings of the parties led to the framing of the following issues:--
(1) Whether Ramji Lal (deceased) made any valid will in favour of the plaintiff and defendant Nos. 1 and 2. If so its effect? OPD.
(2) Whether Amin Chand Defendant No. 1 has been recovering rent of the disputed joint properties and is liable to render accounts of the same to other co-sharers in the disputed property. If so its effect?
3. The learned trial Sub Judge, after recording the evidence in the case, upheld the claim of respondent Amin Chand, with regard to the genuineness of the Will Ex. D-1 executed by Ramji Lal deceased on July 31, 1964 and held under issue No.2 that he is not liable to render any accounts as the property No. 166 belonged to him exclusively. With regard to the other property i. e shop No 96-A, he held that the plaintiff and defendant Sita Ram were the owners of the same in equal shares and passed a preliminary decree for possession by partition of the same in favour of the plaintiff against the defendant. As R. D. Gupta plaintiff felt satisfied with this decree, he has not filed any appeal against the same. However, Sita Ram defendant has filed this appeal.
4. The challenge of the learned counsel for the appellant to the findings of the lower Court is twofold:--
(1) the will Ex. D-1 alleged to have been executed by Ramji Lal deceased on July 31, 1964, cannot be taken to have been legally proved; and
(ii) the attending circumstances militate against the genuiness of the said will.
In support of his first attack, the learned counsel submits that one of the attesting witnesses of the said will namely Chuni Lal having died the only other attesting witness Tara Chand, D.W. 1 has not supported the execution of the will and thus the requirements of Section 63 of the Indian Succession Act, do not stand fulfilled. Tara Chand, D.W. 1 has stated that the will Ex. D-1 was not written in his presence nor had Ramji Lal deceased signed it in his presence. It was only Amin Chand defendant who had brought the said will to him and he signed the same as a witness. This D.W. was got declared hostile by the counsel for Amin Chand and was cross-examined wherein it was highlighted that he had got mixed up with Sita Ram defendant and with a view to favour him, was suppressing the truth.
5. The learned counsel for Amin Chand respondent on the other hand submits that it is not true that no attesting witness of the will has been produced who could vouchsafe, for the due execution of the said will. He maintains that Kartar Singh, D.W. 2 who is the scribe of the will has stated in his evidence that he had written the will Ex. D. 1 on July 31, 1964 at the instance of Ramji Lal deceased and the latter had signed the same in his presence after understanding its contents. He too signed it then and there. He further deposed that the two attesting witnesses had also signed the said will at the very same time in the presence of the deceased. He being a regular petition writer, also proved the relevant entry in his register, pertaining to this will. The copy of this entry is Ex. D-3. According to him, deceased Ramji Lal also signed in his register against this Entry no. 44. His evidence further is that he personally knew Ramji Lal deceased and the attesting witnesses of the will. He has only been asked two question in cross-examination:--
(i) as to whether the deceased knew, Punjab Language in which the will is undoubtedly written; and
(ii) that the attesting witnesses were not present at the time.
The later suggestion put to him was denied by him. There is no cross-examination of this witness on any other point whatsoever. On the basis of this evidence, the learned counsel for Amin Chand maintains that the evidence of this witness fully 63 of the Indian Succession Act and he has to be treated as an attesting witness of the will. I find considerable force in this submission of the learned counsel. An attesting witness as such is neither defined not carries any particular significance except the one that in cases of wills, his evidence has to meet the requirement of Section 63(c) of the Indian succession Act. I find that the evidence of this witness fully metes those requirement. It is not disputed before me that in a number of cases decided by this Court as well as by other High court in somewhat similar circumstances a Sub-Registrar in the case of the wills which were got registered, was treated to be an attesting witness. In the light of the discussion above, I find no merit in the first ground of attack launched by the learned counsel for the appellant.
6. So far as the second attack by the counsel for he appellant is concerned, he points out that the following factors throw doubt on the genuineness of the will:--
(i) Amin Chand defendant was not only admittedly present at the time of the execution of the will, he infact signed the said will as a witness and thus should be taken to have taken a prominent part in the execution of the same.
(ii) Will though alleged to be executed on July 31, 1964, has seen the light of the day on September, 8, 1978 i. e. about 14 years after its execution for the first time and during all this periods its existence was not disclosed to anybody.
(iii) Ramji Lal died in about a year's time from the date of executing of the will; and
(iv) One of the attesting witnesses i. e. Tara Chand D. w. 1 has not supported its due execution.
7. On a careful consideration of the evidence on the record, I do not find any substance in any of these contentions raised by the learned counsel. To condemn the will on account of the role ascribed to Amin Chand, we have to appreciate the evidence with regard to time and the place where the will was written and executed and the manner in which Amin Chand got to sign it. It is in the evidence of Amin Chand defendant that the will Ex. D. 1 was written and executed at the shop of Ramji Lal deceased i. e. shop No. 96-A, where Ramji Lal was carrying on his Kiryana business. Even Sita Ram defendant-appellant admits that he and his brothers used to work with their deceased father at that shop. The only other shop of the deceased i. e. shop No. 166 in Bazar No. 3 was on rent even at that time. According to this witness even Sita Ram defendant appellant was present at the time of the execution of this will. So if Amin Chand defendant was present at the shop at the time of execution of the will and so was Sita Ram defendant appellant and he signed it as a witness, there is nothing which militates against his credibility or discloses any active participation on his part. Thus it cannot be said that Amin Chand had taken any active part in the execution of this will. It is not one of those cases in which a beneficiary accompanies the executor of a will to a particular place and takes steps to facilitate the said execution. The presence of this witness at the shop and also of Sita Ram defendant-appellant, sounds very natural. Moreover, the alleged active participation by a beneficiary in the execution of a will can only been taken as a circumstance for rendering that will a suspicious, if the will itself appears to be unnatural and confers any undue benefit on the beneficiary.
In the present case, as has been indicated in the opening part of the judgment the deceased has only three properties regarding which he made the will. He did not choose to give any share to his daughter for the reasons that he had already spent quite a lot on her marriage. Smt. Naraini Devi daughter of the deceased has not made any grouse against this will on that account. It is in evidence that out of the three properties mentioned above, shop No. 96-A in Bazaar No. 1 is the main property and was larger in size than the other two properties. This is clear from the Statement of R. D. Gupta Plaintiff himself. In this view of the matter, the will does not appear to be unnatural or unreasonable to any of the sons of the deceased Ramji Lal. It appears that he only wanted to make some sort of settlement with regard to his succession and that is why he specified the shares of his sons in the properties in disputes.
8. The learned counsel is not very right in saying that the will Ex. D. 1 had not seen the light of the day till Sept. 8, 1978 when it was filed I Court as again according to the evidence of defendant Amin Chand, he had filed a copy of the will at least three years prior to the starting of this litigation, in the office of the Cantonment Board at Ferozepur, and even prior to that when some dispute had arisen between the parties ad an Arbitrator had been appointed, he had produced the will before him. Moreover, before taking the delayed production of the will as a suspicious circumstance against its genuineness, the learned counsel has to point out any occasion which had arisen on which he will not so produced. It is not that merely because a will has been executed in favour of a party he should keep on proclaiming and telling everybody that he is in possession of such a will. As soon as the claim was laid by R. D. Gupta plaintiff, to shop No. 166, Amin Chand pleaded the will Ex. D-1 in his favour. In the present case even Tara Chand D.W. 1 who was got declared hostile by Amin Chand defendant, admitted that he signed the will Ex. D. 1 about one or one and a quarter years earlier to the death of Ramji Lal. This exactly fits in with the version of the Amin Chand defendant.
9. Again the learned counsel for the appellant has not been able to show that at the time of the execution of the will, deceased Ramji Lal was suffering from any mental or physical disability or was not in a fit state of health to understand the implication of the will. This is not even suggested to any of the witnesses in cross-examination. Merely because Ramji Lal died in about a year's time, from the date of execution of the will, it does not reflect upon the genuineness of the will. So far as the evidence of Tara Chand, D.W. 1 to the effect the Ramji Lal deceased had not signed this will in his presence, is concerned the same does not carry conviction and does not to my mind weaken the case of Amin Chand defendant. The evidence of Tara Chand, D.W. 1 to the effect that Ramji Lal deceased has not signed this will in his presence, it concerned the same does not carry conviction and does not to my mind weaken the case of Amin Chand defendant. The evidence of this witness becomes unreliable because of his conduct and the cross-examination to which he has been subject. It is not explained as to why was it necessary for him to sign this will as a witness it he had not seen Ramji Lal signing it. His statement that he signed the document even with out knowing its contents just on the asking of Amin Chand defendant does not sound reliable. If he was out to oblige Amin Chand defendant, to that extent or was so under his influence, what has happened since then that he had to depose in court against Amin Chand has not been made clear on the record of this case.
10. Yet another feeble argument was raised by the learned counsel for the appellant that in spite of the existence of this will, Amin Chand defendant even on 23-2-1977 i. e. more than 12 years after the execution of the will, sent a letter Ex. D-4 addressed to the Cantonment authorities saying that shop No. 96-A was jointly owned by him and his brothers and this circumstance conclusively shows that the will was brought into existence some time later. First D.W. 1 Amin Chand has fully explained the signing of this document by him. According to him plaintiff R. D. Gupta's son brought this typed letter to the former that would have led to the imposition of the house tax on that property at a lower rate. Secondly this document does not militate against the interest of Amin Chand in any manner. It is nowhere that through this document Amin Chand was disclaiming his title or ownership of shop No. 166. On the other hand he by the execution of this letter was even claiming 1/3rd share in the other property i. e. shop No. 96-A which according to the will solely belonged to his two brothers namely R. D. Gupta, plaintiff and Sita Ram defendant, in equal shares.
11. In the light of the discussion, above I am of the considered opinion that there is nothing on the record of this case which can lead to the doubting of the due execution of the will Ex. D-1, rather the said will is duly proved by the evidence on record. In addition to the evidence on record. the circumstances which support with conclusion of mine, are that sister of these litigating brothers, namely Smt. Naraini Devi accepted the genuineness of this will and did not claim any interest in the property of her deceased father. Secondly R. D.Gupta who actually initiated these proceedings for partition of the property, did not feel dissatisfied with the judgment and decree of the lower Court and rather felt contended by not filing any appeal against the said decree. It is only Sita Ram Defendant Who has come forward to challenge this decree.
12. As a result of the above discussion, I do not find any merit in this appeal and dismiss the same but with no order as to costs.
13. Appeal dismissed.