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PUNJAB AND HARYANA HIGH COURT
R.L. Anand, J.
Kartar Kaur - Appellant
Versus
Kewal Singh - Respondents
Regular Second Appeal No. 2672 of 1982.
Decided On : 11 September, 1996
WILL - EXECUTION - PROOF - SUSPICIOUS CIRCUMSTANCES - ONUS OF PROOF - SHIFTING - NATURAL HEIRS - DISINHERITANCE - REASONS - NECESSITY - WILL (D-1) - INVALID - WILL (P-1) - VALID.
Fact of the Case:
Plaintiff Smt. Kartar Kaur filed a suit for possession of 130 Kanals 18 Marlas of land, claiming title under a registered will (P-1) executed in her favor by her uncle Surmukh Singh. The defendant, Kewal Singh, contested the suit, claiming ownership under a subsequent registered will (D-1) executed in his favor by Surmukh Singh. The trial court decreed the suit, holding that will (P-1) was valid and will (D-1) was invalid. The first appellate court reversed the trial court's decision, holding that will (P-1) was not proved and will (D-1) was valid. The plaintiff appealed to the High Court.
Finding of the Court:
The High Court held that the first appellate court erred in reversing the trial court's findings on the validity of the wills. The court found that will (P-1) was duly executed by Surmukh Singh while in a sound disposing state of mind and that there were no suspicious circumstances surrounding its execution. The court also found that will (D-1) was not validly executed and that it was created by Gujjar Singh, the father of Kewal Singh, who took active part in the entire episode. The court held that the onus of proof shifted to the defendant to remove the suspicious circumstances surrounding will (D-1), and that the defendant failed to discharge this onus.
Issues: 1. Whether will (P-1) was duly executed by Surmukh Singh while in a sound disposing state of mind? 2. Whether there were any suspicious circumstances surrounding the execution of will (P-1)? 3. Whether will (D-1) was validly executed by Surmukh Singh? 4. Whether the defendant discharged the onus of proof to remove the suspicious circumstances surrounding will (D-1)?
Ratio Decidendi: 1. The execution of a will must be proved by the propounder of the will or the beneficiary of the will. 2. The onus of proof shifts to the propounder of the will to remove any suspicious circumstances surrounding the execution of the will. 3. The deprivation of natural heirs by the testator should not raise any suspicion, but the testator must provide reasons for disinheriting the natural heirs. 4. A will is invalid if it is not executed in accordance with the provisions of the law, if the testator was not in a sound disposing state of mind at the time of execution, or if there are suspicious circumstances surrounding the execution of the will.
Final Decision: The High Court allowed the appeal, set aside the judgment and decree of the first appellate court, and restored the judgment and decree of the trial court. The court held that the plaintiff was entitled to possession of the land in dispute under will (P-1).
R.L. Anand, J. - Unsuccessful plaintiff Smt. Kartar Kaur has filed the present R.S.A. and it has been directed against the judgment and decree dated 9.9.1982 passed by the Court of Additional District Judge, Bathinda, who set aside the judgment and decree dated 17.10.1978 passed by the Court of Sub Judge 2nd Class, Bathinda, who decreed the suit of Smt. Kartar Kaur, plaintiff-appellant, measuring 130 Kanals 18 Marlas fully described in the head note of the plaint.
2. The pleadings of the parties can be summarised in the following manner :-
Surmukh Singh son of Bhola singh, resident of village Maur Kalan, who was owner of the land measuring 130 Kanals 18 Marlas, as described in the head note of the plaint. Surmukh Singh and Narain Singh were real brothers. Surmukh Singh died issueless. Smt. Kartar Kaur plaintiff is the daughter of Narain Singh. After the death to Narain Singh, his property was inherited by his real brother Surmukh Singh deceased. Surmukh Singh and Narain Singh real brothers, were born to Smt. Mahan Kaur from the loins of Bhola Singh. After the death of her first husband Bhola Singh, Smt. Mahan Kaur remarried with Hira Singh. From the union of Smt. Mahan Kaur and Hira Singh, Gujjar Singh was born. Defendant Kewal Singh is the son of Gujjar Singh and he was sued, through his natural guardian and mother Smt. Sito wife of aforesaid Gujjar Singh. The case of the plaintiff is that she used to render services to Surmukh Singh deceased and out of love and affection, he executed a registered will dated 25.2.1959 (Exhibit P-1), bequeathing his entire movable and immovable property in her favour. Plaintiff Smt. Kartar Kaur alleges that revenue mutation of succession of Surmukh Singh has been illegally sanctioned in favour of Kewal Singh son of Gujjar Singh and in this manner her rights to the property bequeathed by her uncle Surmukh Singh have been adversely affected. In fact, on the basis of natural succession as well as on the basis of will dated 25.2.1959 (P-1), she is the owner of the suit property.
3. The suit of the plaintiff was contested by the defendant on the grounds that during his life-time Surmukh Singh had mortgaged the suit property and it was redeemed by the defendant on payment of the mortgage money by making payment to the various mortgagees. Kewal Singh defendant set up a registered will dated 5.1.1966 (Exhibit D-1) and asserted that Surmukh Singh had executed this will in his favour while he was in sound and disposing state of mind and this is the last testament. The will dated 25.2.1959 (P-1), if any, in favour of Smt. Kartar Kaur plaintiff stood automatically cancelled. He is the owner and in possession of the suit land on the basis of the will (D-1) dated 5.1.1966 and as such the suit of the plaintiff is liable to be dismissed.
4. From the above pleadings of the parties, learned trial court framed the following issues :-
1. Whether Surmukh Singh deceased executed a genuine and valid will dated 25.2.1959 in favour of the plaintiff ? If so, its effect ? .. .. .. OPP.
2. Whether Surmukh Singh deceased executed a valid and genuine will dated 5.1.1966 in favour of the defendant ? If so, it effect ? .. .. .. OPD.
3. Whether the suit is within limitation ? OPD.
4. Whether the plaintiff has got no locus standi to file the present suit ? OPD.
5. Whether the suit is not maintainable in the present form ? OPD.
6. Whether the suit is bad for non-joinder of necessary parties ? OPD.
7. Whether the suit land was lying mortgaged by Surmukh Singh deceased and has been released by defendant ? If so, for what amount and with effect ? OPD.
8. Relief.
The parties led oral and documentary evidence in support of their case and vide judgment and decree dated 17.10.1978, the Court of Sub Judge, IInd Class, Bhatinda, decreed the suit by holding that the will (Exhibit P-1) had been validly executed by Surmukh Singh while in sound disposing mind in favour of Smt. Kartar Kaur. Resultantly, issue No. 1 was decided in favour of t
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