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Surjit Kaur Vs. Nirver Singh (Dead) Through Lrs - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 1489 of 1983
Judge
Reported inAIR2005P& H125; (2005)139PLR696
ActsIndian Succession Act - Sections 63
AppellantSurjit Kaur
RespondentNirver Singh (Dead) Through Lrs
Advocates: Yogesh Goel, Adv. for; Brij Mohan Lal, Adv.
DispositionAppeal dismissed
Cases ReferredH. Venkatachala Iyengar v. B.N.Thimmajamma
Excerpt:
- - yogesh geol, learned counsel for the appellant assailed the judgment of the learned appellate court on the ground that it has not appreciated the evidence on record in its right perspective and the well reasoned judgment of learned trial court has been set-aside on the basis of conjectures and surmises. once the execution of the will is fully proved, such like suspicions are not to be taken into consideration......no. 3, who is his tenant.2. the brief facts for the disposal of the present appeal are that teja singh was the owner in possession of the land measuring 16 bighas 12 biswas. he died on 20.2.1973 leaving behind surinder kaur, defendant no. 2, who is daughter of his pre-deceased daughter, smt. surjit kaur widow of ujagar singh, pre-deceased son. it has been further pleaded that surjit kaur had contacted a karewa marriage during the life time of teja singh with jaswant singh of morinda in the year 1970 and karewanama was executed between them on 15.3.1972. thus, since 1970, she was living with him as his wife. therefore, she has no right to inherit the property of teja singh being the widow of his pre-deceased son.3. the plaintiff also pleaded that teja singh had executed a valid.....
Judgment:

Nirmal Singh, J.

1. This is a defendant's appeal against the judgment dated 8.3.1983 passed by learned Additional District Judge, Ropar, vide which he accepted the appeal and set-aside the judgment and decree passed by learned Sub-Judge, 1st Class, Kharar, dated 11.8.1962 and granted decree in favour of the plaintiff that he is owner in possession of the land in suit through Hazara Singh, respondent No. 3, who is his tenant.

2. The brief facts for the disposal of the present appeal are that Teja Singh was the owner in possession of the land measuring 16 bighas 12 biswas. He died on 20.2.1973 leaving behind Surinder Kaur, defendant No. 2, who is daughter of his pre-deceased daughter, Smt. Surjit Kaur widow of Ujagar Singh, pre-deceased son. It has been further pleaded that Surjit Kaur had contacted a Karewa marriage during the life time of Teja Singh with Jaswant Singh of Morinda in the year 1970 and Karewanama was executed between them on 15.3.1972. Thus, since 1970, she was living with him as his wife. Therefore, she has no right to inherit the property of Teja Singh being the widow of his pre-deceased son.

3. The plaintiff also pleaded that Teja Singh had executed a valid Will dated 15.3.1972 in his favour in respect of the entire property in sound and disposing mind. The defendant succeeded to half share of Teja Singh in the joint Khata in collusion with the Revenue Officer and got the mutation sanctioned in her favour and threatened to take forcible possession. Defendant No. 2 admitted the claim of the plaintiff.

4. Defendant No. 1 contested the suit and denied that Teja Singh had executed any Will as propounded by the plaintiff. It was also denied that she had contracted Karewa marriage with Jaswant Singh rather, she pleaded that she had been serving her father-in-law and resided in the same house after his death and, therefore, mutation was rightly sanctioned. On the pleadings of the parties, various issues were framed. The learned trial Court, after recording the evidence decided all the issues against the plaintiff and dismissed the suit vide judgment and decree dated 12.8.1982.

5. Aggrieved by the said judgment and decree, the plaintiff filed an appeal before the learned Additional District Judge, Ropar, who vide judgment dated 8.3.1983 set aside the judgment of the learned trial Court and decreed the suit as stated in para 1 of the judgment, aggrieved by which the present appeal has been filed.

6. I have heard learned counsel for the appellant and carefully gone through the record. However, nobody has put in appearance on behalf of the respondents.

7. Mr. Yogesh Geol, learned counsel for the appellant assailed the judgment of the learned appellate Court on the ground that it has not appreciated the evidence on record in its right perspective and the well reasoned judgment of learned trial Court has been set-aside on the basis of conjectures and surmises. He also submitted that learned trial Court has held that the Will dated 15.3.1972 propounded by the plaintiff is surrounded by suspicious circumstances as the Will was not got registered. He also submitted that Teja Singh had not given any reason for disinheriting Surjit Kaur, defendant No. 1, who was widow of pre-deceased son Ujagar Singh and Surinder Kaur, defendant No. 2, predeceased daughter. He submitted that in the Will, it had been scribed that the testator was served by the propounder of the Will, Nirver Singh. He also pointed out that Nirver Singh was settled at Calcutta and was not residing in the village and, therefore, he could not serve Teja Singh. He pointed out that there were three thumb impressions on some paper, on which this Will was fabricated to disinherit Surjit Kaur, appellant, from the estate of Teja Sigh. He contended that there is no evidence on record worth reliance on the basis of which it can be said that the appellant had performed Karewa marriage with Jaswant Singh.

8. After hearing learned counsel for the appellant and perusing the record, I am of the considered opinion that there is no legal error in the findings recorded by the learned Lower Appellate Court.

9. The plaint-respondents have put their claim on the basis of the Will, Ex.P-1. The said Will though is not a registered one but there is no law that the Will should compulsorily be a registered one. The propounder of the Will has also to prove that the deceased was in sound and disposing mind at the time of execution of the Will and the provisions of Section 63 of the Indian Succession Act have not been complied with. For proving the Will, it has to be proved that the Will has been executed in the presence of two witnesses who, in turn, attested the same. When the Will is unregistered, then the evidence led by the propounder of the Will is to be scrutinised with great care and caution as the same speaks after the death of testator. In the instant case, when the evidence of scribe and the attesting witness is scrutinised, it proves that the testator, Teja Singh, had executed a Will in favour of his real brother, Nirver Singh.

10. To prove, the Will, the plaintiff-respondents have examined PW2 Banarsi Dass, who was the scribe of the Will. He has deposed that he had seen the Will dated 15.3.1972, which was scribed by him. It was dictated by Teja Singh. PW-3 Ram Singh is one of the attesting witness. He has deposed that Teja Singh had got executed a Will from PW-2 Banarsi Dass during his life time in favour of Nirver Singh. The said Will was thumb marked by Teja Singh in his presence and also in the presence of PW-5 Lambardar Hardyal Singh and Prem Singh. Even he also appended his signatures on the Will. He further deposed that Teja Singh was in senses at the time of execution of the Will, Ex.P-1, PW-5 Hardyal Singh had also appeared and testified that the Will was executed in his presence by Teja Singh. He also deposed that plaintiff-respondents used to serve Teja Singh after the death of Ujagar Singh.

11. Counsel for the appellant contended that plaintiff-respondents were not serving Teja Singh as he was living in Calcutta. Nirver Singh-plaintiff, was the real brother of deceased Teja Singh. Nirver Singh had appeared as his own witness as PW-1 and deposed that he was serving his brother, Teja Singh, after the death of his son, Ujagar Singh. On account of the service rendered by him, Teja Singh executed a Will in his favour bequeathing his entire estate. The version given by Nirver Singh has been corroborated by Hardyal Singh, PW-5 and that too in the cross-examination. He admitted that Nirver Singh came from Calcutta after 20 days of death of Ujagar Singh and started residing with Teja Singh. Teja Singh was not having any son or daughter and, therefore, he preferred to execute a Will in favour of Nirver Singh, who was his real brother. The witnesses to the Will are most natural as they belong to the village of the deceased. One of the natural heir, Surinder Kaur, defendant No. 1, who was daughter of pre-deceased daughter has also supported the claim of the appellant and submitted that the Will was a genuine document.

12. PW-2 Banarsi Dass, PW-3 Ram Singh and PW-5 Hardyal Singh were cross-examined on behalf of the appellant but could not shake their sworn testimony, rather, from their defence it is proved that Teja Singh was in sound and disposing mind when he executed the Will, Ex.P-1.

13. Now, the only question is as to why Teja Singh has disinherited Surjit Kaur, who is widow of pre-deceased son. Hardyal Singh, PW-5, was the Lambardar of the village. It has come in his cross-examination that he took a Panchayat at the residence of Jaswant Singh 8-9 years earlier to bring back Surjit Kaur. The panchayat included Ujagar Singh and Sarpanch Ram Singh. The appellant has examined Ajit Singh, Registration Clerk. He has deposed that according to entry No. 102/4 dated 15.2.1972, a Kare-wanama was registered, which pertained to Dalip Kaur @ Surjit Kaur with one Jaswant Singh. The plaintiff-respondents have also examined PW-4 Shiv Ram, Document Writer to prove the marriage of appellant with Jaswant Singh. He had deposed while seeing the document register that at Sr. No. 78 dated 15.3.1972, there is an entry with regard to agreement made between Jaswant Singh and Surjit Kaur @ Dalip Kaur regarding Karewa marriage. The contents of the agreement were read over to the parties and as a token of its acceptance, Surjit Kaur had thumb marked the same whereas Jaswant Singh had signed the same in Urdu in his presence. The exact extract according to the original is Ex.P4/A. It has come in the cross-examination of PW-4 Shiv Ram, Document Writer, that Jaswant Singh was known to him being Lambardar of the village but Surjit Kaur was not known to him earlier but he identified Surjit Kaur in the Court. It has also come in the cross-examination that Surjit Kaur told him her name as Surjit Kaur @ Dalip Kaur widow of Ujagar Singh of village Gharuan. Surjit Kaur, appellant, had appeared as DW-4 as her own witness. In her cross-examination, she deposed that she had not instituted any injunction suit against the plaintiff-respondents for restraining them from interfering in the suit property. However, the plaintiff-respondents have placed on record copy of the judgment passed in the said suit, Ex.P-4. The said suit was for preputial injunction filed by the appellant against Nirver Singh, Hazara Singh, Surinder Kaur etc. and that suit was dismissed. Therefore, the appellant is not a truthful witness. She has deposed that she is in possession of the property and has given the same for cultivation on batai but when she was cross-examined and asked the name of the person to whom she had given the land on batai, she could not tell his name. It does not appeal to reason that a person does not know the name of the person to whom the land had been given on batai. It is also not her case that the land was given on batai through some mediator. Otherwise also, it is proved from the record that the appellant was not living with deceased, Teja Singh. It is also natural that daughter or daughter-in-law, who is not living with the parents, can be deprived from the estate. Furthermore, in this part of the country, especially agriculturist families, believe in keeping the property in their families only. Once the execution of the Will is fully proved, such like suspicions are not to be taken into consideration. In Smt. Sushila Devi v. Pandit Krishna Kumar Missir and Ors., A.I.R. 1971 Supreme Court 2236, it has been held as under by the Hon'ble Apex Court.

'Prima facie, the circumstances that no bequest was made to the appellant by the testator would make the Will appear unnatural but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid. If the bequest made in a Will appears to be unnatural then the Court has to scrutinise the evidence in support of the execution of the Will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but there is no gain saying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute Wills. As observed by this Court in H. Venkatachala Iyengar v. B.N.Thimmajamma, 1959 Supp.(1) S.C.R. 426:A.I.R. 1959 S.C. 443 that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. Proof in neither case cannot be mathematically precise and certain and so the test should be one of satisfaction of a prudent mind in such matters. The onus must be on the propounder and in absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus, where, however, there are suspicious circumstances the onus would be on the propounder to explain them to be satisfaction of the Court before the Will can be accepted as genuine.'

The execution of the Will has been fully proved in the instant case as per the provisions of Section 63 of the Indian Succession Act. Therefore, the Will is a genuine document and the learned lower Appellate Court has rightly so held. In view of the above discussion, there is no merit in the appeal. The same is hereby dismissed.


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