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PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Vesakha Singh
Versus
Jit Singh And Anr.
Regular Second Appeal No. 2509 of 1991,
Decided On : MAY 10, 1996
WILL - EXECUTION - VALIDITY - ONUS OF PROOF - CIRCUMSTANCES SURROUNDING THE WILL - SUSPICIOUS CIRCUMSTANCES - BURDEN ON THE PROPOUNDER TO REMOVE SUSPICIOUS CIRCUMSTANCES - WILL HELD TO BE FORGED AND INVALID.
Fact of the Case:
The plaintiff, Jit Singh, filed a suit for declaration that he is the owner in possession of the share of the deceased Daman Singh in the land measuring 91 Kanals 13 Marlas on the basis of the will dated 13.3.1984 executed by Daman Singh in his favour and that the sale deed is ineffective against the rights of the plaintiff and for the relief of perpetual injunction for restraining the defendants from interfering with the possession of the plaintiff in respect of the land measuring 18 Kanals 12 Marlas, fully described in the head-note of the plaint, situated in village Sehna, which was alienated by Jangir Kaur defendant No.2 in favour of Basakha Singh defendant No.l, and that Basakha Singh defendant No.l should not alienate the same in any manner.
Finding of the Court:
The court found that the will in dispute was a forged document and that the services of at least one attesting witness Gurdev Singh had been procured subsequently to attest this will as an attesting witness. The court also found that the name of one attesting witness Gurdev Singh had been written with a separate pen, the tip of which was thin as compared to the other writing of the will. The court further found that the plaintiff had admitted in his cross-examination that on 7.5.1981 vide Exhibit P6 Daman Singh got land, i.e. l/16th share of the land measuring 91 kanals 13 Marlas and the said sale deed was signed on behalf of the vendee Daman Singh by plaintiff Jit Singh himself. The court also found that the plaintiff had used to reside in village Sehna with Daman Singh for the last 14/15 years and used to serve him. The court also found that the plaintiff had admitted that he used to move the application after getting the thumb impression of Daman Singh for the sake of getting copy of the document etc. The court also found that the plaintiff had never resided with Daman Singh in village Sehna in House No. 199 as shown in the voters list.
Issues: 1. Whether Daman Singh executed a valid will dated 13.3.84 in favour of the plaintiff ? 2. Whether plaintiff is the owner in possession of the suit property ? 3. Whether Jangir Kaur is widow of Daman Singh ? 4. Whether defendants are purchasers for valid consideration without any notice of the rights of the plaintiff, if any with respect to land measuring 15 Kanals 10 Marlas ? 5. Whether suit is bad for non-joinder of parties ? 6. Whether plaintiff has no locus standi or cause of action to file this suit ? 7. Whether suit is barred by time ? 8. Whether suit is barred under Order 7 Rule 11, CPC ? 9. Whether the suit is not maintainable in the present form ? 10. Whether the defendants are entitled to special costs, if so to what extent ? 11. Whether the plaintiff is entitled to injunction as prayed for ?
Ratio Decidendi: The court held that the onus of proof lies on the propounder to show by satisfactory evidence that the will was signed by the testator and that the testator was in sound and disposing mind and that he understood the nature and effect of the dispositions and put his signatures on the document of his own free will. The court also held that if there are suspicious circumstances surrounding the will, it is the obligation of the propounder to remove those suspicious circumstances.
Final Decision: The court allowed the appeal, set aside the impugned judgments and decrees of the first appellate court and of the trial Court, and dismissed the suit of the plaintiff-respondent Jit Singh.
R.L.Anand, J.
1. Basakha Singh, defendant No. 1 in the trial Court, has filed the present R.S.A. and it has been directed against the judgment and decree dated 10.10.1990 passed by the Court of Additional District Judge, Barnala, District Sangrur, who affirmed the judgment and decree dated 31.1.1987 passed by the Sub Judge 1st Class, Barnala, who decreed the suit of the plaintiff-respondent Jit Singh for declaration as prayed for.
2. Jit Singh plaintiff-respondent filed a suit for declaration that he is the owner in possession in respect of the share of the deceased Daman Singh son of Sunder Singh in the land measuring 91 Kanals 13 Marlas on the basis of the will dated 13.3.1984 executed by Daman Singh deceased in his favour and that the sale deed is ineffective against the rights of the plaintiff and for the relief of perpetual injunction for restraining the defendants from interfering with the possession of the plaintiff in respect of the land measuring 18 Kanals 12 Marlas, fully described in the head-note of the plaint, situated in village Sehna, which was alienated by Jangir Kaur defendant No.2 in favour of Basakha Singh defendant No.l, and that Basakha Singh defendant No.l should not alienate the same in any manner.
3. The case set up by the plaintiff was that Daman Singh deceased during his life time executed a will dated 13th March, 1984 (Ex.P1). Daman Singh was not a married person. The plaintiff occupied the suit land during the life time of Daman Singh as Co-sharer. The plaintiff used to cultivate the land both the his share and of Daman Singh and has been cultivating the same now. On the basis of the will he has become the owner of the land. The plaintiff alleged that defendant No.l Basakha Singh (now appellant), impersonating defendant No.2 Smt. Jangir Kaur as the widow of the deceased (Daman Singh) got the sale deed No. 685 dated 29.11.1984 executed in his favour fictitiously, whereas Smt. Jangir Kaur was not the widow of Daman Singh. There had been no marriage between Daman Singh and Smt. Jangir Kaur. The mutation in respect of the inheritance of Daman Singh had not been decided at the time of the institution of the suit. Therefore, Smt. Jangir Kaur was not competent to alienate the property of Daman Singh. The defendants wanted to occupy forcibly the land measuring 91 kanals 13 marlas and they made an attempt for forcible occupation on 13.12.1984. Defendant No.2 wanted to alienate the property by transferring the same on the basis of the sale deed executed by her in favour of defendant No. 1 Basakha Singh. Hence the suit.
4. Notice of the suit was given to the defendants and objections were taken, such as, the suit was not maintainable in the present form; that the suit is barred by time; that the suit is liable to be dismissed under Order 7 Rule 11, C.P.C.; that the plaintiff has got no locus standi/cause of action to file the suit; that the suit is bad for non-joinder and mis-joinder of necessary parties and that the defendants are entitled to the special costs of Rs. 2,000/-. On merits it was pleaded by the defendants that the plaintiff never came into possession of the suit land, which has been occupied by Smt. Jangir Kaur defendant No. 2 after the death of Daman Singh as his widow. Smt. Jangir Kaur out of the land owned and possessed by her sold 15 Kanals 10 Marlas of land to Basakha Singh defendant No.l on 29.11.1984 for a consideration of Rs. 25,000/- and delivered the possession thereof to him. Defendant Basakha Singh is a bona fide purchaser for a valuable consideration and without notice. The possession with respect to the remaining land is with Smt. Jangir Kaur and Daman Singh did not execute any will in favour of plaintiff Jit Singh. The will propounded by the plaintiff is a forged and fictitious document and the same has been prepared in conspiracy with the attesting witnesses of the same. The defendants also denied the plaintiff being the grandson of the sister of deceased Daman Singh. It h
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