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2011 Supreme(P&H) 449
PUNJAB & HARYANA HIGH COURT
Ram Chand Gupta, J.
Malkiat Kaur
Versus
Hardev Singh
R.S.A. No. 85 of 1983,
Decided On : FEBRUARY 7, 2011
Headnote:(A) Succession Act, 1925--Will--Proof of--Legal requirements for proving of execution of Will--
1. A Will like any other document is to be proved in terms of provisions of Succession Act and the Evidence Act;
2. Onus of proving the Will is on the propounder;
3. Testamentary capability of the propounder must also be established;
4. The execution of the Will by the testator has to be proved;
5. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will;
6. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time, he was in sound disposing state of mind and understood the nature and effect of disposition;
7. It is also required to be established that he has signed the Will in the presence of two witnesses, who attested his signatures in his presence or in the presence of each other;
8. When there exist suspicious circumstances, the onus would be on the propounder to explain the same to the satisfaction of the court before it can be expected as genuine.
9. The Court must satisfy its conscious before its genuineness is accepted by taking a rationale approach. (Para 28)
(B) Succession Act, 1925--Will--Execution of--At the young age of 46 years--Averments regarding illness--No specific disease suffered has been mentioned--No medical record regarding illness was produced--No doctor, who treated deceased has been examined--Held, merely on the ground that plaintiff has deposed that he had visited once to see her father, who was ailing--It cannot be said that deceased was suffering from serious illness, due to which deceased thought of executing the Will at young age of 46 years. (Para 41)
(C) Evidence Act, 1872--Expert Opinion--Comparison of signature by the court itself--High Court compared the disputed signatures with the standard signatures with the help of the reports of both the experts and found the K has given the correct opinion--On the fact of it and even by appearance with naked eyes the disputed signatures do not appear to be in the hand of the person, who wrote the standard signatures. (Para 34)
(D) Succession Act, 1925--Will--Execution of--Non-registration of--Doubtful circumstances--There is no dispute that Will does not require compulsory registration--But when executants of the Will was allegedly present in the Tehsil Compound, where Will was drafted by deed-writer, nothing prevented him from getting the same registered before Sub Registrar to give more authenticity to the Will particularly in view of the fact that the other legal heirs were being excluded--Suspicious circumstances not dispel. (Para 44)
(E) Succession Act, 1925--Will--Execution of--Overwriting--Doubtful Circumstances--There is over-writing in writing serial number of the register of deed writer on the Will--Though initialed by the writer of the Will--Even the register was not properly maintained by the deed-writer--Suspicion is arisen in the mind of this Court as to whether the Will was scribed by the deed-writer on the date mentioned in the Will. (Para 46)
1. Facts giving rise to the present regular second appeal are as under:
2. Arjan Singh son of Saun Singh (deceased), resident of Dhuri was owner of the land in dispute, duly described in the heading of the plaint. He died on 15.12.1967. Surjit Kaur, respondent No.3 (defendant No.1) is widow of Arjan Singh. Hardev Singh and Sukhdev Singh, respondent Nos. 1 and 2 (defendant Nos.3 and 2 respectively) are the sons of Arjan Singh. Respondent No.4- Hardev Kaur is daughter of Arjan Singh. Appellant-plaintiff-Malkiat Kaur is daughter of Arjan Singh from his first wife. Respondent defendant Nos. 1 to 3 got the property, left by the deceased Arjan Singh, mutated in their names on the basis of forged Will in collusion with revenue officials on 8.5.1969 just to grab the rights of present appellant-plaintiff in the property bf her father Arjan Singh. However, it has been contended that Arjan Singh did not execute any Will in favour of defendants.
3. On refusal of defendants to admit the claim of the plaintiff, the present suit has been filed for joint possession to the extent of 1/5th share in the property in dispute left by deceased Arjan Singh.
4. Respondent-defendant Nos. 1 to 3 filed joint written statement admitting the fact that Arjan Singh was the owner of the property in dispute. They have also admitted their relations with their father Arjan Singh (deceased) but they denied the relations of plaintiff with Arjan Singh (deceased). Further plea has been taken that Arjan Singh of his own free will executed a Will dated 24.10.1967 in their favour while he was of sound disposing mind and after his death, they became owners in possession of the property in dispute left by him. It is denied that Will is a forged and fictitious document.
5. Defendant No.4 did not appear to contest the suit and hence she was proceeded ex parte.
6. From the pleadings of the parties, following issues were framed for adjudication by learned trial Court:
"1. Whether Malkiat Kaur plaintiff is the daughter of Arjan Singh?
2. Whether Arjan Singh had executed a valid Will in favour of defendant Nos.l to 3?
3. Relief."
7. Parties adduced evidence in support of their contentions before learned trial Court.
8. Learned trial Court after hearing counsel for the parties and after going through the whole record, decided issue No.1 in favour of appellant-plaintiff by holding that sufficient evidence has been adduced by appellant-plaintiff to prove that she is daugther of Arjan Singh (deceased) and that Jaswant Kaur, first wife of Arjan Singh was her mother.
9. Learned trial Court also decided issue No.2 in favour of appellant-plaintiff by holding that defendants have failed to prove that the Will in question was executed by Arjan Singh.
10. As a sequel to findings on both the issues, the suit of plaintiff was decreed with cost by learned trial Court.
11. Respondent-defendants Hardev Singh and Sukhdev Singh filed two separate appeals, which were decided by learned Additional District Judge, Sangrur, vide common judgment, while maintaining findings of learned trial Court on issue No.l, findings of learned trial Court on issue No.2 have been reversed and it was held that Will propounded by Hardev Singh and Sukhdev Singh was proved to have been duly executed by Arjan Singh (deceased), and by virtue of said Will, respondent-defendant Nos.l to 3 are only heirs of Arjan Singh (deceased) and hence, appellant-plaintiff is not entitled to get any share in the estate of Arjan Singh and hence, the suit filed by present appellant was ordered to be dismissed with cost throughout.
12. Aggrieved against the said judgment and decree passed by learned first appellate court, present Regular Second Appeal has been filed by appellant-plaintiff-Malkiat Kaur.
13. The appeal filed by appellant-plaintiff was accepted by a coordinate Bench of this Court vide judgment and decree dated 21.7.2004 and the judgment and decree dated 20.9.1982 passed by first appellate court was set aside and that
