Allowed

Mohinder Kaur v. Sant Kaur

Punjab & Haryana HC3 Nov 2008RSA/687/1986

Case brief

AI extract

What is this about?

An appeal against the affirmation of a will which the trial court refused to prove due to a mismatch in thumb impressions. The High Court held that the official attestation of thumb impressions by a Tehsildar created a strong presumption of authenticity that the respondents failed to rebut, allowing the appeal.

What did the court decide?

The judgment and decree of the lower appellate Court are set aside and that of the trial Court is affirmed.

Mohinder Kaur Vs Sant Kaur — Succession and Inheritance | Punjab & Haryana HC (2008)

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R.S.A No. 687 of 1986

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A No. 687 of 1986

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Date of decision : November 03, 2008

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Mohinder Kaur

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...... Appellant.

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through Mr.R.K.Battas and Mr.H.R.Bhardwaj, Advocates

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Sant Kaur, dead, through L.Rs and others

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...... Respondents

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through Mr.V.K.Jain, Sr.Advocate with Mr.Prashant, Advocate

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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

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1. Whether Reporters of Local Newspapers may be allowed to see the

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judgment ?

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2. To be referred to the Reporters or not ?

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3. Whether the judgment should be reported in the Digest ?

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AJAY TEWARI, J

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This appeal has been filed against the judgment and decree, dated 22.11.1985 whereby the learned Additional District Judge, Patiala allowed the appeal of the respondents against the judgment and decree dated 22.11.1982 passed by the learned Sub Judge Ist Class, Patiala.

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The plaintiff/appellant filed a suit on the allegations that her husband suddenly developed severe intestinal pain on 23.6.1968. On the next morning, he was taken to Patiala where he was admitted in Rajindera Hospital and operated upon the same day. He, however died within 3-4 days of the operation. As per the stand of the plaintiff, she and her mother-in-law were the only two legal representatives of the deceased (there being no

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R.S.A No. 687 of 1986 ::2::

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issue from the marriage) and were, thus, entitled to succeed to the estate of the said deceased. She consequently filed the instant suit for joint possession of 1/4^th share out of 30-83-48 hectares of land (which was jointly owned by her deceased husband and his brother).

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The defendant/respondents took up a plea that infact the deceased had executed an unregistered will on the day of his hospitalisation bequeathing 1/3^rd share respectively to the plaintiff/appellant, his mother and sister.

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Learned trial Court found that there were inconsistencies in the statements of the attesting witnesses, the mother of the deceased, as well as the doctor who had attended the deceased with regard to the circumstances in which the alleged will was executed. However, the crucial evidence on which the learned trial Court relied for holding the will to be not proved was the testimony of Dewan K.S.Puri (PW4) that the will did not bear thumb impressions of the deceased. It is pertinent to mention here that the standard thumb impressions which were used for comparison were those which had been appended by the deceased on two loan applications. The said thumb impressions were attested by the then Tehsildar Bikram Singh (PW5). The trial Court consequently held the will not to be proved and decreed the suit filed by the plaintiff/appellant.

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In appeal, the learned lower appellate Court found the alleged inconsistencies to be inconsequential. Bikram Singh (PW5) had admitted in his cross examination that he did not know the deceased personally and, thus, discarding the testimony of the handwriting expert, the lower appellate Court held that the will was proved and consequently allowed the appeal.

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Before me, Shri R.K.Battas, learned counsel for the appellant

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R.S.A No. 687 of 1986 ::3::

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supported the findings of the learned trial Court by emphasizing on the inconsistencies in the statements of the attesting witnesses, the mother and the doctor, who attended the deceased. He further argued that PW5, the Tehsildar who had attested the thumb impressions of the deceased on the loan applications, had acted in his official capacity and that both the loan applications bore the thumb impressions of the brother of the deceased as well as the Nambardar. He, thus, contended that this testimony raised a strong presumption about the authenticity of the standard thumb impressions. He further urged that this presumption could not be rebutted only by the admission of the Tehsildar that he did not know the deceased personally and that to rebut this presumption it was imperative that the respondents lead some positive evidence. He contended that the finding of the lower appellate Court that the standard thumb impressions were not proved was, thus, palpably perverse and could not be said to have arisen from the evidence in this case.

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Learned counsel relied upon (i) Baliram Atmaram Kelapure v. Smt.Indirabai and others, 1996(83) AIR SC 2024, wherein it was held that the party who is seeking to alter the normal rule of succession by putting forward a will, has to establish the truth and validity of the said will; (ii) Gopal Charan Mohanty and another vs Smt. Adarmani Mohanty and others, 1988 CCC 317 (Orissa) wherein a Division Bench of the Orissa High Court held that the fact that there was no endorsement on the will by the scribe that he had explained the contents was a suspicious circumstance; (iii) Baldev Singh v. Rachan Singh (P&H), 2004(1) PLR 493, wherein this Court held inter-alia, that the fact that the attesting witnesses of the will were from different villages was a suspicious circumstance;

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R.S.A No. 687 of 1986

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(iv) Pindiganti Lakshminarayana (died) per L.Rs vs Pindiganti Venkata Subbarao, 2001(1) RCR (C) 604 wherein a learned Single Judge of the Andhra Pradesh High Court held that the fact that inconsistencies appeared in the evidence in regard to the execution of the will was a suspicious circumstance;

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(v) Prem Singh v. Kulwant Singh, 2000(1) PLR 730 wherein this Court held that the fact that a will was executed in the Tehsil Complex but was not got registered (as in the present case) was a suspicious circumstance; (vi) Vidya Rani v. Surinder Kaur, 1998(4) RCR (Civil) 446 wherein a learned Single Judge of the Delhi High Court held that the fact that a will was produced by a beneficiary and not registered nor produced through a public authority was a suspicious circumstance; and (vii) M/S Orient Distributors v. Bank of India Ltd and others, AIR 1979 SC 867 wherein the Hon'ble Supreme Court held as follows :-

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“4. It is true that on the plea raised by the appellants a question did arise as to whether the use of the main gate abutting Errabalo Chetty Street and the disputed passage giving access to the appellants' tenement on the first floor formed part of the demise granted by the second respondent to them at a time of the creation of tenancy in 1959? But, admittedly, the tenancy had been created orally and there being no document pertaining thereto the question depending upon the inference to be drawn from the facts and surrounding circumstances obtaining at that time. In our view, therefore, the High Court was right in taking the view that the question was not purely a

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R.S.A No. 687 of 1986

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factual one but one relating to the propriety of the legal conclusion that could be drawn on the basis of proved

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facts .........” (emphasis supplied).

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Shri V.K.Jain, Senior Advocate, learned counsel for the respondents urged that the findings of the lower appellate Court were reasonable while attacking those of the trial Court. He argued that the desire of the deceased to provide some thing for his unmarried sister when he had been advised by the doctor that his impending operation could be serious to life could not be said to be unjustified. He further argued that the finding of the trial Court that the two attesting witnesses were from different villages was wrong since they had stated that at the time of transaction, they were residents of the same village and infact were shown to have moved away subsequently. He added that the said witnesses did not have any animus against the appellant and, thus, there was no reason for them to depose falsely. Learned counsel explained the inconsistencies by terming them to be inconsequential and rather inevitable, keeping in view the fact that the testimony was recorded after so many years. He emphasized on the fact that PW5, the Tehsildar had unequivocally admitted that he did not know the deceased personally. He submitted that in the face of this admission, it was for the plaintiff/appellant to produce the other witnesses of the alleged standard thumb impressions to testify that the said thumb impressions were indeed those of the deceased. He also brought to my notice the statements of the attesting witnesses of the will to the effect that the will was not registered since the Registrar was not in his office. He concluded by submitting that the finding of the learned lower appellate Court regarding the execution of the will was a pure question of

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R.S.A No. 687 of 1986

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appreciation of fact and could not be gone into by this Court.

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Learned counsel relied upon (i) Madhukar D.Shende v. Tarabai Aba Shedage, 2002(1) RCR (Civil) 724 wherein the Hon'ble Supreme Court held as follows :-

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“.........What was told by Baron Alderson to the Jury in R.V. Hegde 1838, 2 Lewis CC 227 may be apposite to some extent - “The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting to take for granted some fact consistent with its previous theories and necessary to render them complete.” The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdictpositive or negative.”

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R.S.A No. 687 of 1986

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(ii) Sundhri (Dead) through L.Rs vs Lala Ram (Dead) through L.Rs, 2005 (2) P.L.R 493, wherein this Court held as follows :-

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“........From the above authorities, it is clear that there is a presumption of sanity of the testator. Once a Will is proved, there is no further onus on the propounders to prove that the testator was in a sound disposing mind at the time of execution of the Will. However, when a Will is challenged on the ground of testator's mental incapacity, the onus lies on the person so alleging. He is required to prove the same by leading evidence to that effect. Thus, when a Will has to be rejected on the ground that the testator was not in a sound and disposing mind, a definite finding is required to be recorded to that effect. However, in the present case, the finding recorded is that the defendants (appellants herein) “ have failed to prove that at the time of execution of the Will, he was of sound and disposing mind.” This finding is clearly not based upon a correct application of the legal principles governing the proof and acceptance of Will and is completely perverse.”

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and (iii) Ishwardeo Narain Singh v. Smt. Kamta Devi and others, AIR 1954 SC 280, wherein the Hon'ble Supreme Court held as follows :-

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“4. The High Court had relied on the fact that the will was not registered or deposited with District Registrar. There is nothing in law which requires the registration of a will and wills are in a majority of cases not registered at

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R.S.A No. 687 of 1986

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all. To draw any inference against the genuineness of the will on the ground of its non-registration appears to us to be wholly unwarranted.”

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In my opinion, the question which arises for consideration in this case, has to turn on the fact as to whether the thumb impression on the will was that of the deceased or not. A heavy presumption arose on the testimony of the Tehsildar with regard to the thumb impressions of the deceased on the loan applications. It is to be borne in mind that the said witness had attested the thumb impressions in his official capacity and this gave rise to the presumption that the said attestation was validly carried out. No evidence was led by the respondents to rebut this inference. The respondents could have produced the two witnesses of the loan applications to depose that the thumb impressions on the said applications were not those of the deceased. In any case, an official attestation is never done on the basis of personal knowledge and, thus, the admission of PW5 that he did not know the deceased personally is neither here nor there. Thus, following the dictum of Hon'ble Supreme Court in M/S Orient Distributors' case (supra). I am constrained to hold that this question cannot be termed to be a pure question of fact but is a mixed question of law and fact. I further find support by the decision of the Hon'ble Supreme Court in Madhukar D.Shende's case (supra), wherein the Hon'ble Supreme Court set aside the findings of fact arrived at by three Courts in regard to the execution of a will holding that the conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will.

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On a careful conspectus of all the facts, I, thus, hold that the

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R.S.A No. 687 of 1986 ::9::

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standard thumb impressions of the deceased were duly proved. This being so, the testimony of Dewan K.S.Puri to the effect that the thumb impressions appearing on the will are different from the standard thumb impressions assumes great significance. This testimony per se has not been challenged by the respondents. I, therefore, hold that the respondents have not been able to prove the due execution of the will.

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The other judgments, cited by the learned counsel, are not applicable considering the view I have taken, since they deal with different facets.

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Consequently, this appeal is allowed, the judgment and decree passed by the learned appellate Court is set aside and that of the trial Court is affirmed. No order as to costs.

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( AJAY TEWARI ) November 03, 2008. JUDGE `kk'

Mohinder Kaur v. Sant Kaur

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Mohinder Kaur v. Sant Kaur

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