Dismissed

Devinder Kaur and Ors. v. Raj Kumar and Ors.

Punjab & Haryana HC7 Sept 2009FAO/255/2006

Case brief

AI extract

What is this about?

Appeal against the grant of probate for a Will executed by Ram Lal in favour of his son-in-law. The High Court upheld the lower court's finding that the Will was duly executed and not suspicious, rejecting the challenge regarding the attesting witness and the revocation of an earlier Will.

What did the court decide?

The appeal was dismissed; the order of the Additional District Judge granting probate was upheld.

Devinder Kaur and Ors. Vs Raj Kumar and… — Succession and Inheritance | Punjab & Haryana HC (2009)

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F.A.O No.255 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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F.A.O No.255 of 2006

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Date of Decision: 07.09.2009

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Devinder Kaur and others

....Appellants

Versus

Raj Kumar and others

...Respondents

CORAM : Hon'ble Ms. Justice Nirmaljit Kaur

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Present:Mr. Baljinder Singh, Advocate for the appellants.

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Mr. Kanwaljit Singh, Sr. Advocate with Ms. Sangeeta Dhanda, Advocate for respondent No.1.

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Mr. Balwinder Singh Jolly, Advocate for respondents No.2 to 4.

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Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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To be referred to the Reporters or not ?

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Whether the judgment should be reported in the Digest ?

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NIRMALJIT KAUR, J.

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This is an appeal against the judgment dated 24-09-2005 passed by Additional District Judge, Chandigarh, vide which the petition for grant of probate, in favour of Raj Kumar Rajvanshi, the respondent, in the present case, in respect of registered Will dated 06-11-1991, was allowed.

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The Will dated 06-11-1991 was executed by Ram Lal, in respect of the residential house No.202, Sector 38-A, Chandigarh. He died on 26-06-2000. His Will is dated 06-11-1991, vide which, he bequeathed the aforesaid house in favour of respondent No.1-Raj Kumar Rajvanshi.

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F.A.O No.255 of 2006

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While challenging the said order, learned counsel for the appellants argued that Raj Kumar had failed to prove the Will dated 06-11-1991, in accordance with the provisions of Section 63(c) of the Indian Succession Act, 1925. Kuldeep Singh Sond, Advocate (PW-2) was the attesting witness of the Will. It was pleaded that he had not deposed to the effect that the testator had signed the Will before him and that he had attested it in the presence of the testator.

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Secondly, PW-2, Kuldeep Singh Sond, was not a genuine person as a criminal case regarding the forged Power of Attorney of a deceased lady is pending and he had attested the Power of Attorney of lady who had already died.

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Thirdly, it was argued by learned counsel for the appellants that the Will is surrounded with suspicious circumstances, in as much as, PW-5, Raj Kumar Rajvanshi has categorically admitted that deceased Ram Lal was having great love and affection for his grand children. It was argued that the lower court wrongly held that the testator to the Will Ex.P-2 had got mentioned that he had revoked his previous Will Ex.R-1. As per the perusal of the alleged Will Ex.P-2 dated 06-11-1991, no plausible reason was given regarding the alleged cancellation of Will Ex.R-1, whereas, the Will Ex.R-1 dated 03-09-1991 had been executed in favour of the legal heirs. The provisions for the protection of wife of deceased was also there and further the appellant was given the first floor of the house and the respondent No.1 got the ground floor, whereas, as per the alleged Will Ex.P-2, all the legal heirs have been discarded without any cogent and plausible reasons and whole of the property was allegedly bequeathed in favour of the appellant and respondent No.1 which itself create a suspicious circumstances.

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Learned counsel for the appellants had also put forward a Will dated 03-09-1991 to be the actual Will and relied upon the judgments of

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F.A.O No.255 of 2006

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Hon'ble the Apex Court, rendered in the case of Bharpur Singh & Ors. vs. Shamsher Singh 2009(1) RCR (Civil) 826, Kailash Rani Dang vs. Rakesh Bala Aneja & anr. 2009(1) RCR (Civil) 833, Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria & Ors. 2009(1) RCR (Civil) 715, B.P. Moideen Sevamandir & anr. vs. A.M. Kutty Hussan 2009(1) RCR (Civil) 722, Shyamal Kanti Guha (D) through L.R. & Ors. vs. Meena Bose 2008(3) RCR (Civil) 619 and the judgments of this Court, titled as Kartar Kaur vs. Kewal Singh & anr. 1997(1) Civil Court Cases 506, Mangat Ram & Ors. vs. Dina Nath 1997(1) Civil Court Cases 570.

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Learned counsel for the respondents, on the other hand, relied on the oral evidence, produced by the respondents-plaintiff, of Amarjit Singh (PW-1), Kuldeep Singh Sond, Advocate (PW-2), Veena Rani (PW-4) as also referred to the evidence of the respondents, Panjab Dass Dogra (RW-1), Kuldeep Singh, Advocate (RW-2), Devinder Kaur (RW-3) and Kanta Kumari (RW-4), as well as, the documentary evidence to substantiate that the Will dated 06-11-1991 was rightly held by the Court below as the last validly executed Will of Ram Lal.

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In order to meet the first argument of learned counsel for the appellants that the Will dated 06-11-1991 does not satisfy the provisions of Section 63(c) of the Indian Succession Act, 1925, it would be necessary to reproduce Section 63(c) of the Indian Succession Act, 1925, which is as follows :-

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“63. Execution of unprivileged Wills. -Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:-

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(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or

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F.A.O No.255 of 2006

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has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

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In the present case, the Will was attested by two witnesses, namely, Kuldeep Singh Sond, Advocate and S.N. Sharma, Advocate. A perusal of the evidence of PW-2 shows that the attesting witness testified, on oath that the deceased had executed a Will, in his presence and he had also accompanied him for the registration of the Will. It was also stated that the other attesting witness-S.N. Sharma, also signed, as a witness, in his presence. It was further submitted that he had accompanied Ram Lal (deceased) to the Office of Sub-Registrar for registration of the Will who made both himself and S.N. Sharma to sign in his presence. The testimony of PW-2 leaves no doubt that the Will was executed in accordance with Section 63 of the Indian Succession Act, 1925. There is no merit in the objection that the Will was not in accordance with the provisions of law.

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Learned counsel for the appellants, however, stated that the said evidence of PW-2 cannot be relied upon as he is involved in another case, wherein, he had signed the Power of Attorney of a deceased lady.

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Learned counsel for the respondents, however, referred to the earlier Will dated 03-09-1991, which was also signed by the same witnessKuldeep Singh Sond. This Will was put up by the appellant-respondents themselves. It does not, therefore, lie in the mouth of the appellants to say that the witness-Kuldeep Singh Sond, Advocate, cannot be relied upon. He is a common witness in both the Wills. In fact, the evidence of Kuldeep Singh Sond, inspires confidence.

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While meeting the third argument of learned counsel for the appellants that the Will Ex.R-1 is surrounded by suspicion on the ground that

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F.A.O No.255 of 2006

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there is no mention with respect to the other legal heirs in the said Will, attention of this Court has been invited to the cross-examination of the appellantrespondents-Devinder Kaur (RW-3), which may be reproduced below :-

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“ My father-in-law was mentally alert but he was sick. He died due to heart attack. I was having very good relations with my father-in-law from the very beginning till he died. It is correct that I had filed three separate suits against my father-in-law. Volunteered, I did so as he used to harass me. It is correct that my father-inlaw had also filed a civil suit against me for ejectment claiming that he was the owner of house and I was only a licencee. It is correct that when my mother-in-law, the suits having been filed by me were pending trial. It is wrong to suggest that my father-in-law used to ask me time and again to vacate the house during his life time but I did not do so. It is correct that I and my father-in-law were having separate mess. It is correct that during life time of my mother-in-law also we were having separate mess. After her death also he used to cook his meals separately.”

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A perusal of this aforesaid cross-examination of the appellantrespondents shows that the litigation was pending between herself and her father-in-law i.e. testator of the Will. Her father-in-law had filed a suit for eviction against the appellant from the very house now in dispute. It is obvious that there was no love lost between her and the testator of the Will. There was bitter litigation between the two. Relations between them were strained. This fact has been corroborated from the suit for injunction Ex.PW-7/A, filed by the author of the Will-Ram Lal, father-in-law, against his daughter-in-law-Devinder Kaur, the present appellant, to hand over the vacant possession of one room in her possession in the house No.202, Sector 38-A, Chandigarh. Paras 7 and 8 of the said plaint is relevant and reads thus :-

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“7. That subsequently the defendant along with her children till today has been continuously living in one room at the back portion house of House no.202, Sector 38-A, Chandigarh. After some time, the behaviour of the defendant towards the plaintiff became very rude and indifferent and she started

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F.A.O No.255 of 2006

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threatening and abusing the plaintiff and her behaviour was unbecoming of a daughter-in-law. During her stay in the said room, the defendant raised an illegal construction on the back courtyard and made a small room which she has been using as a kitchen. The said construction is totally illegal and against the bye-laws of Chandigarh Administration.

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That the plaintiff on such an illegal construction being raised objected to the defendant but the defendant became furious and abusive and to harass the plaintiff filed a suit for permanent injunction. The said suit is pending in the Court of Shri Jasbir Singh, Civil Judge, Junior Division, Chandigarh. A copy of the plaint is attached as Annexure C-1. The said suit is totally false and has been filed with a view to harass the plaintiff who is an old man.

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Not only this, a suit for mandatory injunction was filed by the appellant against her father-in-law and testator of the Will-Ram Lal. In response to that suit, Ram Lal filed reply. In para 5 of the reply, it was admitted that he had made a Will in favour of Devinder Kaur but the same was got cancelled as her behaviour was unbecoming of a daughter-in-law and she had un-necessarily started troubling and harassing him.

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Another suit for permanent injunction Ex. PW-9/A was filed by the appellant against Ram Lal, her father-in-law. In this case, various allegations were made to show that she was not being treated well and in response to this suit. Written statement was filed by Ram Lal and the relevant contents of the written statement, showing that the earlier Will was cancelled, is reproduced below :-

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“ Vide Will dated 03-09-1991, the plaintiff could construct on the first floor of the said house on her own but that right could only be asserted had the Will come into operation i.e. In the event of the death of the defendant, although the said right is not a legally enforceable right and the temporary room on the first floor was made by the defendant himself in the year 1990, the said room was made by the defendant for his father as he was seriously ill and was able to pass his urine and stool only by way of

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F.A.O No.255 of 2006

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artificial tubes fitted into his body so under the circumstances he required a separate room and accordingly the said room was temporarily made for father. The above mentioned Will dated 03-09-1991 was cancelled after about two months only as the behaviour of the plaintiff had become unbecoming of a daughter-in-law and she has started troubling the defendant. The plaintiff being a lady of very greedy and troublesome nature, the defendant was left with no alternative but to cancel the said Will.”

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The above facts leave no doubt in mind that the earlier Will put up by the appellant dated 03-09-1991 was cancelled and this fact finds mention in the subsequent Will dated 06-11-1991. There can be no better proof of the authenticity of the Will dated 06-11-1991 and the cancellation of the earlier Will dated 03-09-1991 than a written statement filed by the author of the Will himself before the Court of law, in a Civil Suit during his life stating to that effect.

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Learned counsel for the appellants finally submitted that “ Ram Lal had executed almost three Wills and, therefore, he was not in a sound mind. The argument of learned counsel for the appellants has no merit on account of the evidence of the appellant herself and reproduced above wherein it was stated that “my father-in-law was mentally alert.”

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As such, the judgment cited by learned counsel for the appellants, are not applicable in the facts of the present case.

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No ground to interfere in the Order dated 24-09-2005 passed by Additional District Judge, Chandigarh, is made out. The appeal is, accordingly dismissed, being devoid of merits.

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(NIRMALJIT KAUR) JUDGE

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07.09.2009 gurpreet

Devinder Kaur and Ors. v. Raj Kumar and Ors.

Case brief

What is this about?

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Devinder Kaur and Ors. v. Raj Kumar and Ors.

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