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IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Satwant Singh - Appellant
Versus
Amar Kaur And Others - Respondent
RSA Nos. 3501 & 5131 of 2003 (O&M)
Decided On : 18-12-2018
WILL - Property Dispute - Indian Registration Act, 1908, Indian Succession Act, 1925, Code of Civil Procedure - Section 18 of the Registration Act, 1908, Section 63 of the Indian Succession Act, 1925, Order 32, Rule 4 of the Code of Civil Procedure
Fact of the Case:
Dispute over the estate of late Sh. Ram Singh, involving conflicting Wills and minor defendant representation.
Finding of the Court:
The Court analyzed the validity of the Wills, the suspicious circumstances surrounding the unregistered Will, and the representation of the minor defendant. It found that the non-registration of the Will, lack of evidence of ailment, and other alleged suspicious circumstances were not sufficient to invalidate the Will. The Court also held that the representation of the minor defendant by natural guardians was effective and in compliance with legal provisions.
Issues: Validity of conflicting Wills, suspicious circumstances, and representation of minor defendant.
Ratio Decidendi: The non-registration of a Will is not a suspicious circumstance, lack of evidence of ailment at the time of execution is not sufficient to invalidate the Will, and representation of a minor defendant by natural guardians is effective unless prejudice is proved.
Final Decision: RSA No.5131 of 2003 filed by the plaintiffs is allowed, and RSA No.3501 of 2003 filed by the defendant is dismissed.
JUDGMENT
Anil Kshetarpal, J. - Arguments were heard. Judgment was reserved. The judgment is being released.
2. By this judgment, RSA Nos.3501 and 5131 of 2003 shall stand disposed of. Parties would be referred to by their name so as to avoid any error.
3. In the considered view of this Court, the following substantial questions of law arise for consideration:-
1) Whether a Will which is registered is required to be superseded only by a registered Will/document?
2) Whether a decree passed by the Court against a minor defendant is liable to be set aside on the ground that the trial Court failed to appoint a Court guardian even in a situation where the minor is represented by natural guardian and there is no material before the Court that his interest was not properly defended?
4. Dispute in the present case is with respect to the estate of late Sh. Ram Singh who died on 14.09.1995. At the time of death, he left behind a widow, a daughter Amar Kaur (plaintiff No.1) and five grand children from a pre-deceased daughter Nasib Kaur as Class I heirs. Pedigree table is extracted as under:-
5. Plaintiff-Amar Kaur and three grandsons of Ram Singh from predeceased daughter Nasib Kaur filed a suit for joint possession. Plaintiffs claimed that they are owners of the property left by late Sh. Ram Singh as per testament dated 28.08.1995.
6. On the other hand, defendants contested the suit. It may be noted that defendant No.1-Inder Dai died on 02.02.1996. Defendants denied execution of the Will by late Sh. Ram Singh dated 28.08.1995 and they set up a registered Will dated 04.08.1995.
7. Both the Courts have held that the Will dated 04.08.1995 is not proved whereas Will dated 28.08.1995 is proved but it is surrounded by suspicious circumstances and, therefore, property would go by natural succession.
8. The Will dated 28.08.1995 is attested by three witnesses namely Sardara Singh (who has appeared as PW2), Amar Singh (who has appeared as PW3) and Karam Singh (who has not been examined in the suit). Scribe of the Will dated 28.08.1995 has been examined, PW1 Baljit Singh. No doubt, learned First Appellate Court has dismissed the application filed by the defendants for permission to lead secondary evidence in order to prove the Will dated 04.08.1995 as some part of the Will was found torn, however, this Court is of the opinion that issue would not require any decision.
9. Learned First Appellate Court after recording a finding that execution of the Will dated 28.08.1995 (unregistered) has been proved, have held that the Will is surrounded by following suspicious circumstances which remained unexplained.
a) The Will dated 28.08.1995 is unregistered whereas Ram Singh had executed two previous registered Wills, first on 28.06.1995 and second on 04.08.1995.
b) There is no evidence that Ram Singh was having any ailment and required any medication because in the last Will dated 28.08.1995, it has been written that Smt. Inder Dai, his wife with the help of Raghbir (husband of Amar Kaur) has withdrawn all the amount from the joint account and no amount is left even for his treatment.
c) No evidence has come on record as to what prompted the Testator to change his mind within a period of 24 days after the execution of the registered Will.
d) Presence of Karam Singh, one of the person who also attested the Will, is not proved.
e) There is no reason why the Will was not got scribed from a professional Deed Writer.
f) No reason is forthcoming why other heirs have been ignored.
10. Now the stage is set for considering the validity of the suspicious circumstances.
11. With regard to first reason, it may be noted that the Will is not required to be compulsorily registered. Registration of the Will is optional and not compulsory as provided in section 18 of the Registration Act, 1908. Hence, a Will cannot be ignored only on the ground that previous Will is registered whereas subsequent Will is unregistered. Of course, facts of each case have to be examined to hold
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