1. This is defendant's second appeal against whom suit for possession was dismissed by the trial Court, but was decreed in appeal.
2. One Lekhu who was deaf and dumb was the owner of the suit property. He died on April 15, 1966. During his lifetime, he made a registered will, dated May 29, 1965, Exhibit D-5, in favour of Kishan Singh, defendant-appellant who was mentioned to be his sister's son therein. On the death of Lekhu, the suit land was ultimately mutated in favour of he defendant-appellant by the revenue authorities and he got into possession thereof. The plaintiff-respondents, Nachhattar Singh and others, filed the present suit for possession of the suit land as hey claimed themselves to be the collaterals of the said Lekhu, deceased. It was alleged in the plaint that the defendant-appellant in the plaint that the defendant-appellant in whose favour the said will was made was not the sister's son of Lekhu, deceased, and in any case, the suit land being ancestral in his hands, the deceased was not competent to make the will. Since the deceased had left behind no other heirs except the plaintiffs they are entitled to the suit property by way of succession. The suit was contested on behalf of Kishan Singh, defendant-appellant, who claimed himself to be the sister's son of Lekhu, deceased and, thus, a better heir to succeed to the state of Lekhu in preference to the plaintiffs. He claimed the suit property on the basis of the registered will also, made in his favour. On the pleadings of the parties, the trial Court framed the following issues :--
1. Whether Lekhu, deceased and the plaintiffs are governed by custom according to which a reversioner is entitled to contest an alienation of ancestral property by a male proprietor ?
2. If issue No. 1 proved whether the right of reversioner to contest an alienation of ancestral property. Does not extend to a will executed by the male proprietor?
3. Whether the land in suit is ancestral of Lekhu qua the plaintiffs?
4. Whether defendant 1 is the sister's son of Lekhu, deceased, and defendants 2 to 5, are the children of the sister of Lekhu?
5. If issues Nos. 1 and 3 are proved in plaintiffs' favour and issue No. 4, is proved in defendants', whether the plaintiffs excluded them in succession to the estate of Lekhu?
6. Whether the suit is speculative ?
7. Whether the plaintiff came in possession of the land in suit on the demise of Lekhu and was subsequently dispossessed by defendant 1?.
8. Whether Lekhu, deceased, executed a valid will in favour of defendant 1 while in sound disposing mind?
9. Whether defendant 1 is entitled to special costs under Section 35A, Civil P. C.?
On material issue No. 4, the trial Court found that Kishan Singh, defendant-appellant, had fully discharged the burden placed on him to prove that he was the son of the sister of Lekhu, deceased. Under issue No.8. which was hotly contested between the parties, it found that the will, in dispute, was a valid and genuine one. In view of these material findings, the plaintiffs' suit was dismissed. In appeal, the learned Additional District Judge reversed the findings of the trial Court on both these issues and consequently, decreed the plaintiffs' suit. Dissatisfied with the same, the defendant has come up in second appeal to this Court.
3. The learned counsel for the appellant, contend that Lekhu, deceased, who was deaf and dumb, was competent to make the will and the will. Exhibit D-5., was duly executed by him. The finding of the trial Court in this respect was correct and the lower appellate Court has reversed these arbitrarily and by misreading the evidence. it was also contended that from the evidence on the record both oral and documentary it has been proved beyond doubt that the defendant-appellant was the son of Shrimati Sardhi alias Malan the sister of Lekhu, deceased, but the lower appellate Court has reversed this finding illegally and by the wrong interpretation of the provisions of Section 50, Evidence Act. on the other hand, the leaned counsel for the respondents contended that the lower appellate Court, on the appreciation of the evidence, has rightly come to the conclusion that the will was not a valid one and that the defendant had failed to prove himself to be the sister's son of Lekhu, deceased. These being findings of fact could not be interfered with in second appeal.
4. I have heard the learned counsel for the parties at a great length and have also gone through the evidence on the record.
5. Admittedly, Lekhu, deceased, was deaf and dumb. However, Section 59, Succession Act, inter alia, provides that every person of sound min not being a minor may dispose of his property by will. Explanation 2, thereto, further provides that the persons who are deaf and dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Similarly, Section 119, Evidence Act, also provides that a witness who unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs, made in open Court. Evidence so even shall be deemed to be oral evidence. Thus, there is no legal bar to will away the property by a person who is deaf and dumb. In the present case, the will, Exhibit D-5, was scribed Jolly, who appeared a D.W. 6. The same was written on the basis of the questions and answers. Exhibit D-4, These questions were put to Jaswant Singh Sachdeva, the Principal of the a Punjab School for the Deaf and Dumb, Burton Park, G. T. Road, Jullundur City, in writing. He answered the same, in writing after getting the answers from Lekhu, deceased, by putting the necessary signs to him in view of the question asked by him. One of the questions put to him, as contained in Exhibit D-4, was: kindly see this old man by your side and ask him how much property he had and what does he want to do with that property? The answer given thereto is that he wanted to give al property and he was asked how he had fully under stood the old man (deaf and dumb) sitting by his said, the answer given was: 'yes. I have understood from old man's talk and signs of fingers'. Even after writing the will a certificate was obtained from the said Shri Jaswant Singh Sachdev who certified that the contents of the will had been explained by him to Lekhu by sings and gestures and that the said Lekhu had thumb-marked the same in token of its correctness. Shri Jaswant Singh Sachdeva appeared in the witness-box, as D.W. 16, and deposed that the will, Exhibit D-5, was written by Shri. Manmohan Singh Jolly, Advocate, D.W. 6, on the answers given to his questions which he had obtained from Lekhu, deceased, by signs and gestures. The testimony of Jaswant Singh Sachdeva was believed by the trial Court, but the lower appellate Court took the view that it was not clear from Exhibit D-4, how Lekhu, deceased, was asked about different types of his property; what gestures were made by him to convey that the possessed the items of property mentioned therein and how he was asked whether he had any wife or issue; whether he wanted to make the will and if so, in whose favour and who looked after him and that what gestures were made by him in answer to most of them. It has also been observed by the lower appellate Court, that in the present case, Lekhu, deceased, who was admittedly deaf and dumb was suffering from head cancer at the time of the execution of the will, Exhibit D0-5, From the tenor of the judgment under appeal, it appears that the lower appellate Court was greatly influenced by the fact of the head cancer. As a matter of fact, Lekhu, deceased, was not suffering from any head cancer, as is evident from the statements of the witness including the statement of the witness including the statement of the Radiologist Bansi Lal, who appeared as D.W. 11, though he had the cancer on his back. However, it could not be successfully contended that the cancer on the head of the deceased Lekhu, if any, and the cancer on his back could not make a material difference as regards his capacity to understand and to convey his wishes and intention through signs and gestures which were ascertained with the help of Shri Jaswant Singh Sachdeva, the Prinipal of the School. Moreover, it could also not be successfully contended that the evidence of Shri Jaswant Singh Sachdeva was not admissible as expert evidence as contemplated under Section 45, Evidence Act which provides that when the Court has to from an opinion upon a point of foreign law, or of science or art, or as to identify of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity or handwriting or finger impressions are relevant facts. Such persons, are called experts. The testimony of Jaswant Singh Sachdeva, D.W. 16, who was himself a deaf and dumb, is contained in the form of questions and answers. In his cross-examination, nothing has been brought out to show why his evidence should not be believed. When it was asked from him whether the will was read over to the testator by the scribe and whether the testator followed the same as it is, the answer given was: 'by signs and gestures.' Thus, the whole approach of the lower appellate Court in this respect is unwarranted. As a matter of fact, once it is found that Lekhu deceased, being deaf and dumb was competent to make, a will, then, there is nothing on the record to show that the will was not a genuine one. The only challenge to the will, in the plaint, is that the property being ancestral in the hands of Lekhu, deceased, he was not competent to will away the same. No other challenge was made in the plaint to the validity of the will. The defendant, in order prove the genuineness of the will, produced its scribe, Man Mohan Singh Jolly, Advocate, D.W. 6 and two marginal witness, Harcharan Singh, D.W. 8 and Girdhari Lal, D.W. 9 In addition thereto, the Registrar who registered the will was also produced as D.W. 7. The will was registered by him after being satisfied from the expert Jaswant Singh Sachdeva, and after getting the necessary certificate. There is absolutely no rebuttal to the said evidence. It has been held in Surendra Pal v. Saraswati, AIR 1974 SC 1999, that the propounder has to show that the Will was signed by the testator, that he was at the relevant time, in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that the put his signature to the testament of his own free Will and tat he has signed it in the presence of the two witness who attested it in his presence and in the presence of each other. Once these elements are satisfied, the onus which rests on the profounder is discharged. In the present case, this burden has been fully discharges by the profounder of the Will. Much has been made by the lower appellate Court from the presence of the propounder Kishan Singh at the time execution of the Will and according to it, it as a suspicious circumstances which vitiated the Will. This approach again in my opinion is wholly wrong and misconceived. The mere fact that the propounder of the Will was present at the time of the execution of the Will alone is not sufficient to doubt the geniuses of the Will. Moreover, in the present case, the testator being a deaf and dumb person, the presence of defendant-appellant Kishan Singh in that situation was most natural and has been fully explained in the evidence. The Will was scribed by an advocate who had no personal motive or object to hatch a conspiracy to forge the Will. He received no benefit under the Will directly or indirectly. Nothing had been brought on the record as to his antecedents so as to doubt his integrity. Moreover, it has come in the evidence and has been amply proved on the record hat Kishan Singh, defendant-appellant, was serving the deceased Lekhu, during his lifetime and had been looking after him. It has been so stated in he Will as Well. Under the circumstances, it could not be held that the Will was not a genuine and a valid document; particularly as observed earlier, the plaintiffs never challenged the validity of the Will on any account in the plaint except on the ground that the suit property was ancestral in the hands of Lekhu, deceased and, thus he was not competent to make the said Will. The approach of the trial Court in this respect was correct and the lower appellate Court has reversed this finding arbitrarily and by making a wrong approach to the legal position and the evidence on the record. The mere fact that the deceased was having the cancer of back did not mean that he was not in a fit mental condition to make the Will. A testator of a Will does not have to be found to be in perfect state of health to have his Will declared valid, as held in Chhanga Singh v. Dharam Singh, AIR 1965 Punj 204. The only criteria is that the testator was capable of understanding the nature of his act, which has been fully proved in this case. Thus, the finding on issue No. 8 reached by the trial Court is restored and it is held that Lekhu, deceased, executed the valid Will in favour of the defendant-appellant while he was in a sound disposing mind.
6. In view of the finding on issue No. 8, the finding under issue No. 4 become redundant because the plaintiffs' suit it bound to fail on that ground. However, the trail court after discussing the entire evidence on the record to prove the relationship of Kishan Singh, Defendant, with Lekhu, deceased, has given a firm finding that Kishan Singh, defendant, was the sister's son of Lekhu, deceased. The lower appellate Court has reversed this finding of the trail Court on the short ground that the evidence of the defendant's witnesses was not admissible under Section 50, Evidence Act, as they had not deposed as to their conduct towards Lekhu, deceased, and Kishan Singh, defendant-appellant. The mere fact that the deceased treated the defendant Kishan Singh as his Bhanja as stated by the witnesses, according to the lower appellate Court, was not sufficient to prove their relationship as this evidence did not show the conduct of the witnesses as contemplated under S. 50. Evidence Act. The whole approach of the lower appellate Court is again wrong and unwarranted. As a matter of fact, the defendant by cogent evidence, both oral and documentary, has proved on the record that he was the sister's son of Lekhu, deceased, the testator. The witnesses produced by him are either relations or those who have special means of knowledge as to the relationship of Lekhu, deceased, with Kishan Singh, defendant. Moreover, in the Will itself, it has been categorically stated that the legatee Kishan Singh, was his Bhanja, i. e., sister's son. There is absolutely no rebuttal to this evidence led on behalf of the plaintiffs. They simply denied the relationship of the defendant with the deceased testator. It appears that it was so denied, because if the defendant is proved to be the sister's son of Lekhu, deceased, he along with other defendants would succeed to the estate of the deceased in preference to the plaintiffs even irrespective of the Will Exhibit D.5, in his favour. Strong reliance was placed on behalf of the plaintiffs-respondents on a Full Bench judgment of this Court in Amar Singh v. Chhaju Ram, 1972 Cur LJ 591: (AIR 1973 Punj 213). While noticing the Said Full Bench Judgment of this Court, it was Observed in para 3 of the Judgment in Gurnek Singh v. Balbir Singh, 1977 Cur LJ 256, as follows:
'In Amar Singh v. Chhaju Ram, 1972 Cur LJ 591: (AIR 1973 Punj 213)(FB), each of the three learned Judges constituting the Full Bench, delivered separate opinion, According to the opinion of Sodhi, J.,, under Section 50, Evidence, Act, it was the opinion of the witness appearing in the Court to prove the existence of any disputed relationship that was relevant; provided he had special means of knowledge on the subject as a member of the family or otherwise and provided further that his opinion was expression of his own conduct. Sodhi, J., was of the view that the conduct of others could not be taken in consideration under Section 50 in determining the relevancy of his opinion. He, however, observed that in a proper case other facts including conduct of others as observed by the witness might be admissible as direct evidence under S. 60, Evidence Act. Suri, J., held that while it was necessary that all the three conditions mentioned in Section 50 should be fulfilled, it was not necessary that the person whose opinion as expressed by conduct has been proved should himself come into witness-box. Mahajan, J., agreed with Suri, J.'
Moreover, in any case, the said evidence of the witness produced on behalf of the defendant-appellant, was admissible in evidence under the provisions of S. 60, Evidence Act. In Dolgobinda v. Minai Charan, AIR 1959 SC 914, it has been held that the essential requirements of S. 50, Evidence Act, are that (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct, While discussing Section 60, Evidence Act, it has been held that the conduct or outward behaviour must be proved in the manner laid down in Section 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it must be proved by the person who hear it; and so on. Conduct as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion and the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, such testimony in the case is direct within the meaning of Section 60. It has been further held that while Section 60. It has been further held that while Section 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special means of knowledge and the section does not imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. Section 50 does not put any such limitation. Thus, the finding of the trial Court under issue No. 4 is also to be restored.
7. As a result of the above discussion, this appeal succeeds and is allowed. The judgment and decree of the lower appellate Court are set and that of the trial Court are restored with costs.
8. Appeal allowed.