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PUNJAB AND HARYANA HIGH COURT
Sabina, J.
Gurdial Kaur & Anr. —Appellants
versus
Chand Kaur (deceased) through
LRs —Respondents
Regular Second Appeal No. 1728 of 1984
Decided on 2.3.2012
Counsel for the Parties:
For the Appellants:Mr. B.S. Bhalla, Advocate.
For the Respondent:Mr. R.S.Aulakh, Advocate.
IMPORTANT POINT
Where the Will in question was surrounded by suspicious circumstances,appellate court erred in holding Will to be a genuine document.
Headnote:Civil Procedure Code,1908—Section 100—Second appeal—Suit for possession of 1/3rd share of suit property filed by plaintiffs—Decreed by Trial Court—Appeal—Allowed by Appellate Court holding that defendant was in possession of suit land on the basis of Will executed by original owner in her favour—Appeal—No reasons assigned by executant as to why he was depriving his natural heirs from inheritance and executing Will in favour of his sister—Rather, no mention made by executant in the Will qua his wife or daughter—This rendered the Will a suspicious document- Although registration of a Will goes a long way in proving the execution of the Will but in the facts and circumstances of the instant case, the Will in question could not be said to be a genuine Will of the testator—Though propounder of Will, had been successful in technically proving execution of Will by examining the scribe, attesting witnesses and an expert to establish that Will was duly thumb marked by deceased, yet the Will in question was surrounded by suspicious circumstances—In these circumstances, appellate court erred in holding Will to be a genuine document—Impugned judgment passed by appellate court set aside—Appeal allowed. (Para 11)
Result: Appeal allowed.
Sabina, J.— Plaintiffs Gurdial Kaur and Harbans Kaur filed suit for possession of 1/3rd share out of the suit property as described in the head note of the plaint against Chand Kaur defendant.
2. The case of the plaintiffs, in brief, was that Naranjan Singh was owner to the extent of
1/3rd share in the suit property. Naranjan Singh had died about two years prior to the filing of the suit and after his death, plaintiffs being his only legal heirs were liable to succeed to his State. The Will set-up by the defendant was not a genuine document.
3. Defendant, in her written statement, admitted the factum of death of Naranjan Singh. However, it was denied that the plaintiffs were the legal heirs of deceased Naranjan Singh. It was averred that the defendant was in possession of the suit land on the basis of the Will dated 1.4.1975 executed by Naranjan Singh in her favour.
4. On the pleadings of the parties, following issues were framed by the trial Court:
“1. Whether the plaintiffs are heirs of Naranjan Singh deceased? OPP
2. Whether Naranjan Singh deceased executed a valid Will in favour of the defendant on 1.4.1975? If so, its effect? OPD
3. Relief.”
5. Trial court vide judgment and decree dated 7.12.1981 decreed the suit of the plaintiffs. It was held that the plaintiffs being natural heirs of the deceased Naranjan Singh were entitled to succeed to his share in the suit property. Aggrieved by the said judgment and decree, defendant preferred an appeal. The first appellate court vide judgment and decree dated 27.2.1984 allowed the appeal filed by the defendant and consequently, the suit filed by the plaintiffs was ordered to be dismissed. Hence, the present appeal by the plaintiffs.
6. Learned counsel for the appellants has submitted that during the pendency of the appeal, appellant Gurdial Kaur had died. Appellant No.2, only legal heir of Gurdial Kaur, was already on record. Learned counsel has further submitted that the relationship between the deceased and the plaintiffs was not in dispute. The learned first appellate court had erred in holding that the Will in question was a genuine Will. In fact, Will dated 1.4.1975 could not be termed as a genuine Will as no reference had been made in the said Will qua the plaintiffs. There was no occasion for Naranjan Singh to have executed the Will in favour of the defendant, his sister, in preference to his wife and daughter.
7. Learned counsel for the respondent, on the other hand, has submitted that the first appellate court had given cogent reasons for upholding the Will in question. The Will in question was a registered Will and had been duly thumb marked by the executant. The relations between the executant and his wife were not cordial and due to this reason, he had executed a Will in favour of the defendant as he was being looked after by her.
8. The substantial question of law that arises in this case is:
“Whether the Will dated 1.4.1975 (Ex. D3) is a genuine document?”
9. It is not in dispute that plaintiff Gurdial Kaur was wife of deceased Naranjan Singh and plaintiff Harbans Kaur is the daughter of deceased Naranjan Singh. Defendant Chand Kaur is the sister of the deceased Naranjan Singh. Defendant has placed reliance on Will dated 1.4.1975 alleged to have been executed by Naranjan Singh in her favour. A perusal of Will (Ex. D3) reveals that it was executed on 1.4.1975 and was got registered on the same day. The Will (Ex. D3) is thumb marked by the executant and has been attested by witnesses Avtar Singh and Gurdev Singh. In order to prove the due execution of the Will, defendant examined DW2 Daya Nand (scribe of the Will) DW3 Avtar Singh and DW4 Gurdev Singh (attesting witnesses of the Will). The said witnesses have deposed qua execution of the Will by the executant Naranjan Singh in favour of Chand Kaur.
10. A Will is a sacred document and speaks of the mind of the executant after his death. The executant of the Will is never available for deposing as to under
