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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S. Murtaza Fazl Ali, J.
Guru Dutt Singh & Anr. - Appellant
Versus
Durga Devi & Anr. - Respondent
Civil Suit No. 4/1962
Decided On : 27 July, 1965
WILL - GENUINENESS - SUSPICIOUS CIRCUMSTANCES - ONUS ON PROPONENT - BURDEN OF PROOF - EVIDENCE - ORAL AND DOCUMENTARY - INTERPRETATION - LEGAL PRESUMPTION OF MARRIAGE - REBUTTAL - ADMISSIONS - CORROBORATION - EXECUTION AND ATTESTATION - REQUIREMENTS - SUSPICIOUS CIRCUMSTANCES - EXPLANATION - GENUINENESS OF WILL - DOUBTFUL SIGNATURE - EXPERT EVIDENCE - FORGERY - SELECTION OF SCRIBE - MUTATION APPLICATION - ABSENCE OF ADEQUATE REASON FOR EXECUTING WILL - UNSATISFACTORY EVIDENCE - DISMISSAL OF SUIT.
Fact of the Case:
Plaintiffs filed a suit for possession of properties mentioned in the plaint on the basis of a will alleged to have been executed by Sardar Mohan Singh, the owner of the properties in dispute. The defendants contested the suit on various grounds, including the genuineness of the will and the validity of their marriage with Mohan Singh.
Finding of the Court:
1. The legal presumption of marriage arises when a man and woman have cohabited continuously for a number of years. This presumption can be rebutted by showing that the parties were not married at all. 2. The onus of proving the genuineness of a will lies on the propounder. The propounder must satisfy the court that the will was not only the physical but also the mental act of the testator. 3. Where the execution of a will is attended by suspicious circumstances, the propounder has to explain these circumstances and remove the suspicions of the court in order to satisfy its conscience. 4. The suspicious circumstances surrounding the execution of a will may include elaborate and unnatural descriptions of the properties, false recitals, important omissions, non-production of the envelope containing the will, late production of the will, indifference of the plaintiffs to the will and their conduct in allowing defendants to remain in possession of the bequeathed properties, the fact that the will was fabricated on a blank piece of paper containing the signature of the testator, non-production of the draft of the will, absence of adequate provision for the wife and daughter of the testator, and posthumous registration of the will. 5. The oral evidence about execution and attestation of a will cannot be taken separately from the suspicious circumstances surrounding the execution of the will. 6. The signature of the testator on a will must be genuine and not forged.
Issues: 1. Is the will dated 2-3-1960 in favour of the plaintiffs true, valid and executed by the deceased Mohan Singh? 2. Are the first and second defendants not the widow and daughter respectively of the deceased Mohan Singh? 3. Is the will dated 3-5-1960 in favour of the defendants true, valid, and executed by deceased Mohan Singh?
Ratio Decidendi: 1. The legal presumption of marriage arises when a man and woman have cohabited continuously for a number of years. This presumption can be rebutted by showing that the parties were not married at all. 2. The onus of proving the genuineness of a will lies on the propounder. The propounder must satisfy the court that the will was not only the physical but also the mental act of the testator. 3. Where the execution of a will is attended by suspicious circumstances, the propounder has to explain these circumstances and remove the suspicions of the court in order to satisfy its conscience. 4. The suspicious circumstances surrounding the execution of a will may include elaborate and unnatural descriptions of the properties, false recitals, important omissions, non-production of the envelope containing the will, late production of the will, indifference of the plaintiffs to the will and their conduct in allowing defendants to remain in possession of the bequeathed properties, the fact that the will was fabricated on a blank piece of paper containing the signature of the testator, non-production of the draft of the will, absence of adequate provision for the wife and daughter of the testator, and posthumous registration of the will. 5. The oral evidence about execution and attestation of a will cannot be taken separately from the suspicious circumstances surrounding the execution of the will. 6. The signature of the testator on a will must be genuine and not forged.
Final Decision: The plaintiffs' suit for possession of the properties mentioned in the plaint on the basis of a will alleged to have been executed by Sardar Mohan Singh was dismissed with costs.
The case of the plaintiffs is that Sardar Mohan Singh died on 7-5-1960 and before his death he had executed a will dated 2-3-1960 in favour of the plaintiffs who are his nephews. Under the will he properties mentioned in plaint were bequeathed o the plaintiffs and defendant No. 1 was to get a house at Batote, some cash and jewellery. It was urther alleged by the plaintiffs that defendant No. 1 was not a legally wedded wife of Sardar mohan Singh but was only his concubine. It was similarly asserted that Prem Kaur was not the daughter of Sardar Mohan Singh but a niece of defendant No. 1 who had been living with Mohan Singh upto the date of his death. The case as amplified in evidence is further that after the death of Sardar Mohan Singh, the plaintiffs father Partap Singh who was the real brother of Mohan Singh performed his last rites It was further alleged by the plaintiffs that Sardar Mohan Singh after executing the will placed it in the custody of P. W. Amar Singh who handed it over to the plaintiffs in March 1962 after which the plaintiffs got this will registered and then filed the present suit. The plaintiffs further alleged that defendant No. 1 was asked to surrender possession of the properties, but as she refused to do so, hence it became necessary for them to file the present action.
The suit was contested by the defendants on various grounds.
In the first place, the defendants characterised the will propounded by the plaintiffs as a forgery. The defendants further took the stand that Mohan Singh had made a will on 2-5-1960 in favour of defendant No. 1 Durga Devi by which all the properties were bequeathed to her. It was, further alleged by the defendants that although Mohan Singh had betrothed his daughter Kaur to Sat Pal, yet after his death Bakshi Har Dutt and Dawarika Das Soni pressed defendant No 1 that she should marry Prem Kaur to the son of Dwarika Dass Soni. As defendant no. 1 refused to do so, Bakshi Hardutt and Dwarika Dass Soni fabricated the will and have set up the plaintiffs to file the suit. It was further alleged that Mohan Singh in the course of his normal business used to leave his signatures on blank papers with his business partners and the will propounded by the plaintiffs appears to have been fabricated on such a blank paper. Defendant No: 3 further denied the allegation that she was a concubine of Sardar Mohan Singh or that Prem Kour was not his daughter. She categorically asserted that she was married to Sardar Mohan Singh and Prem Kour had been born out of his wedlock. Defendant further claimed that the house in Batote as also the house on Palace Road at Jammu was her self acquired property and the plaintiffs had no right or title to any of them. The defendants also challenged the correctness of the valuation of the properties put by the plaintiffs.
On the pleadings of the parties, the following issues were raised in this case : -
1) Is the will dated 2-3-1960 in favour of the plaintiffs true, valid and executed by the deceased Mohan Singh ?
2) Are the first and second defendants not the widow and daughter respectively of the deceased Mohan Singh ?
3) Is the will dated 3-5-1960 in favour of the defendants true, valid, and executed by deceased Mohan Singh ?
4) What is the correct valuation of the subject matter of the suit for purposes of court fee?
5) Whether the residential house at Palace Road Jammu mentioned in the will dated 2-3-1960 in favour of the plaintiffs belongs to the first defendant ?
Issue Nos. 4 and 5.
Mr. Das, appearing for the defendants did not press issue Nos. 4 and 5 before me. He conceded that the valuation put by the plaintiffs was correct and that the residential house at Palace Road was the property of Sardar Mohan Singh. The learned counsel drew my attention to the fact that although a
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