Dismissed

(O&M)Smt. Guro v. Gurnam Singh and Ors.

Punjab & Haryana HC3 Mar 2014RSA/619/1986

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit based on a registered Will executed in 1962 by a testator in favor of his nephews, the High Court dismissed the daughter's appeal, upholding the lower courts' finding that the Will was validly executed without suspicious circumstances.

What did the court decide?

The instant appeal stands dismissed and the impugned judgments and decrees are upheld.

(O&M)Smt. Guro Vs Gurnam Singh and Ors. — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No.619 of 1986

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[1]

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 619 of 1986(O&M) Date of Decision: March 3, 2014.

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Guro (deceased) through LRs.

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...... APPELLANTS

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Versus

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Gurnam Singh and others

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...... RESPONDENTS

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CORAM:- HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. M.S.Rakkar, Senior Advocate with Mr. J.S.Virk, Advocate, for the appellant.

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Dr. Puneet Kaur Sekhon, Advocate, for the respondents.

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Whether reporters of local papers may be allowed to see the judgment?

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To be referred to the reports or not?

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Whether the judgment should be reported in the digest? *****

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RAMESHWAR SINGH MALIK, J.,

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Defendant is in second appeal, against the concurrent finding of

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facts recorded by both the learned courts below in a suit for declaration, whereby the suit of the plaintiffs was decreed.

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Brief facts of the case as recorded by the learned first appellate court in the impugned judgment, are that Gurnam Singh and Tara Singh plaintiffs, filed a suit against Smt. Guro and 13 others defendants, for a declaration to the effect that the plaintiffs are joint owners in possession, in Singh Omkar 2014.07.01 04:52 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.619 of 1986

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[2]

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equal shares, of the land fully described in the plaint and also for the grant of permanent injunction restraining defendant, Guro, from interfering in the possession of the plaintiffs over the suit land, on the allegations that the plaintiffs are the legatees of Ishar Singh, deceased, on the basis of a registered Will dated 16.02.1962 and Guro defendant has no concern with the estate of Ishar Singh. It was alleged that the plaintiffs were the brother's sons of Ishar Singh whereas, Smt. Guro, defendant, had been residing with the plaintiffs, who had been rendering necessary services to him and in lieu of the services and out of love and affection he executed a valid Will dated 16.02.1962, in favour of the plaintiffs, bequeathing away his entire property in their favour, and that Smt.Guro, defendant, the daughter of Ishar Singh, deceased who was married long back and who had been residing in the village of her in-laws, was divested of the property of her father, and that being so, Smt. Guro defendant has absolutely no concern with the property in dispute. The other defendants were impleaded as parties to the suit as they were co-sharers in the joint land.

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Smt. Guro, defendant, alone contested the suit filed by the plaintiffs and the other defendants did not contest the same. It was denied that the plaintiffs had been rendering necessary service to Ishar Singh, deceased. It was also denied that Ishar Singh had executed any Will in favour of the plaintiffs. The Will was stated to be a forged and fictitious document as the result of impersonation. The contesting defendant also set up a Will dated 06.08.1973 allegedly executed by Ishar Singh, deceased, in her favour. Even otherwise, she claimed that being the daughter of Ishar Singh, deceased,

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RSA No.619 of 1986

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[3]

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she was the natural heir entitled to succeed to the estate of her deceasedfather, to the exclusion of the plaintiffs, as by the subsequent Will, the first Will in favour of the plaintiffs was revoked. She also pleaded that the mutation of the entire estate of Ishar Singh was sanctioned in her favour vide order of the Financial Commissioner, Punjab, dated 28.01.1982. Other allegations as made in the plaint were denied by her. She claimed the property, in dispute, on the basis of being a natural heir as also on the basis of subsequent Will dated 06.08.1973 executed by Ishar Singh in her favour.

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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1. Whether Ishar Singh, deceased, executed his last and valid Will in favour of the plaintiffs?OPP

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1. Whether the plaintiffs are in possession of the disputed land as alleged in para 9 of the plaintiff? OPP

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1. Whether the plaintiffs are entitled to the injunction, prayed for? OPP

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1. Whether deceased, Ishar Singh, executed his last and valid Will dated 6.8.73, in favour of defendant No.1, Guro? OPD

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In order to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on the record, the learned trial court came to the conclusion that plaintiffs have duly proved their case. Accordingly, the suit was decreed in favour of the plaintiffs vide impugned

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RSA No.619 of 1986

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[4]

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judgment and decree dated 11.01.1985. Feeling aggrieved, defendantappellant filed her first appeal, which came to be dismissed by the learned Additional District Judge, Amritsar vide impugned judgment and decree dated 13.01.1986. Hence this appeal, at the hands of the defendant.

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Learned senior counsel for the appellant submits that the Will dated 16.02.1962, Ex.P2, was surrounded by suspicious circumstances. It was wrongly pleaded by the plaintiffs that Nazir Singh and Ishar Singh were real brothers. Ishar Singh - testator ignored his own daughter - appellant without there being any justified reasons, thereby executing the Will, in question, in favour of the plaintiffs. Will was signed by Gurnam Singh - plaintiff also, being beneficiary thereof. Thus, the beneficiary took active part in the execution of the Will. There was also no occasion for Ishar Singh to execute the Will at the age of 68 years. There was no evidence that the plaintiffs had been rendering service to Ishar Singh. PW4 stated that numbers of land were mentioned in the Will whereas, no such numbers were found mentioned. Balkar Singh son of the appellant was not cross-examined that his mother was not rendering any service to Ishar Singh. In support of his contentions, he relies upon a judgment of this Court in Smt. Pritam Kaur and others v. Chanan Singh and others, (1985) 87 PLR p.490 . He further submits that since the learned courts below have failed to appreciate material aspects of the matter, the impugned judgments and decrees are not sustainable in law. Finally, he prays for setting aside the impugned judgments and decrees, by allowing the present appeal.

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Per contra, learned counsel for the respondents submits that the plaintiffs-respondents took specific pleadings and duly proved the same on Singh Omkar 2014.07.01 04:52 I attest to the accuracy and integrity of this document Chandigarh

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RSA No.619 of 1986

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[5]

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the most material aspect of the case that the testator Ishar Singh was having no male child and he was living with the plaintiffs. Plaintiffs used to render every kind of service to Ishar Singh. Plaintiffs were nephews being the sons of his brother. Defendant-appellant was married daughter and had been living at the village of her in-laws. Ishar Singh was having full love and affection with the plaintiffs and was also pleased with the services rendered to him, because of which he willingly executed the Will in favour of his nephews. There was nothing unnatural in the Will. The plaintiffs have successfully proved the due execution of the Will. Requirements of law for execution of Will, contained in Section 63 of the Indian Succession Act, 1925, have been duly complied with. She next contended that there was sufficient and cogent evidence led by the plaintiffs-respondents, which was rightly appreciated by the learned courts below. No question of law was involved. She prays for dismissal of the appeal.

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Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure (for short, the 'CPC'), because no question of law much less substantial questions of law have been found involved in the present case. To say so, reasons are more than one, which are being recorded hereinafter.

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It was an admitted fact on the record that Ishar Singh was the

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RSA No.619 of 1986

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[6]

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owner and predecessor-in-interest of both the parties. Suit was based on the Will dated 16.02.1962, Ex.P2 executed by Ishar Singh in favour of the plaintiffs. Alla Singh was the common ancestor. He had two sons, Ishar Singh and Nazir Singh. Ishar Singh was born to Smt. Sudhi and Alla Singh whereas, Nazir Singh was born from second wife of Alla Singh, namely, Smt. Nandi. Ishar Singh had only one daughter, Guro defendant-appellant whereas, both the plaintiffs Gurnam singh and Tara Singh were the sons of Nazir Singh. Original registered Will dated 16.02.1962, Ex.P2 was available on record. Its due execution was proved by Charan Singh attesting witness as PW4 and Gurnam Singh plaintiff as PW5. Second attesting witness, namely, Sardara Singh had since died. Further, a bare reading of the Will Ex.P2 makes it crystal clear that the testator Ishar Singh was very much alive to the situation.

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It was mentioned in the Will that the testator was an old man. He had no male child of his own. He had daughter named Guro defendant No.1appellant, who was already married. It was further mentioned in the Will that she (appellant) did not, however, care for the testator. Plaintiffs were the brother's sons of the testator and they had been rendering all necessary services to him, because of which testator was pleased with the services rendered by the plaintiffs. Consequently, impugned Will was executed in favour of the plaintiffs out of natural love and affection and in lieu of the services rendered by them to the testator. There was ample and trustworthy evidence available on the record to prove due execution of the Will as a genuine and valid document. Having said that, this Court feel no hesitation

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RSA No.619 of 1986

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[7]

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to conclude that the plaintiffs have successfully proved their case by leading cogent and sufficient evidence. Learned courts below rightly appreciated the facts of the case as well as evidence available on the record, because of which impugned judgments and decrees deserve to be upheld.

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The Will Ex.P2 was executed by Ishar Singh on 16.02.1962 and he died in the year 1974. The Will was scribed by Gurbaksh Singh and it was got registered on the same day. After execution of the Will, Ishar Singh remained alive for about 12 years but he never challenged the validity of the Will during his lifetime. Further, at the time of execution of the Will by Ishar Singh, it was very common in rural India and particularly in this part of the country that a proprietor having no male issue used to prefer his nearest collaterals, in preference to his own daughter with a view to keep the landed property in the family itself.

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This was the strong and plausible reason for Ishar Singh -testator to bequeath his property in favour of his nephews i.e., the plaintiffs to the exclusion of his daughter Smt. Guro i.e., defendant-appellant. Thus, there was nothing found as unnatural in the impugned Will which was also bearing statutory endorsement being a registered Will. Further, had there been any scope of misrepresentation or mischief at the hands of plaintiffs, Ishar Singh would have certainly challenged the validity of the Will during the period of about 12 years of his life time after execution of the Will. Since the learned courts below have appreciated each and every aspect of the matter in correct perspective, the impugned judgments and decrees deserve to be upheld for this reason also.

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RSA No.619 of 1986

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[8]

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Appellant-defendant, although set up an unregistered Will dated 06.08.1973 in her favour, yet she completely failed to prove the same. In fact, this Will was found to be forged document. It was not the set up case of the defendant-appellant that even at the time of execution of this alleged Will dated 06.08.1973, her father Ishar Singh was living with her in her in-laws' house. She had also failed to prove that she had been rendering any service to Ishar Singh during his lifetime. Further, it is very important to note that defendant-appellant did not step into the witness-box for the reasons best known to her. Contrary arguments raised by learned senior counsel for the appellant have been found to be without any force and cannot be accepted.

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Minor discrepancies apart, execution of the Will by the testator has been proved to be an act of his own free volition. No material fact was concealed while executing the Will. Very natural, plausible and strong reasons were got recorded by the testator, while executing his Will in favour of the plaintiffs. Once, the due execution of the Will has been proved and it has not been found to be surrounded by any suspicious circumstances, mere participation by one of the beneficiaries, itself, will not be a sufficient ground to discard the Will.

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The abovesaid view taken by this Court also finds support from the judgments of the Hon'ble Supreme Court in Pentakota Satyanarayana & Ors. Versus Pentakota Seetharatnam & Ors, 2005(4) RCR (Civil) 615 , Janki Narayan Bhoir v. Narayan Namdeo Kadam, 2003(1) PLJ 112 and Mahesh Kumar (dead) by LRs v. Vinod Kumar and others, 2012(2) RCR(Civil) 493 . Relevant observations made by Hon'ble Supreme Court in para No.22 of

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RSA No.619 of 1986

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[9]

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Pentakota Satyanarayana's case (supra), which can be gainfully followed in the present case, read as under:-

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“It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses signed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law.”

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Similarly, the law laid down by Hon'ble Supreme Court in para No.20 of the Mahesh Kumar's case (supra), which aptly applies to the facts of the present case, reads as under:-

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“In Uma Devi Nambiar v. T.C. Sidhan (supra), the Court held that active participation of the propounder / beneficiary in the execution of the Will or exclusion of the natural heirs cannot lead to an inference that the Will was not genuine. Some of the observations made in that case are extracted below:

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“A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is the duty of the propounder of the Will to remove all the suspected features, but there must be real,

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RSA No.619 of 1986

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germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba .) In Rabindra Nath Mukherjee v. Panchanan Banerjee it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.”

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(emphasis supplied)

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The same view was reiterated in Pentakota Satyanarayana v. Pentakota Seetharatnam (supra).”

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So far as judgment relied upon by the learned senior counsel for the appellant is concerned, there is no doubt to the law laid down in it, but on close perusal, it is distinguishable on facts because of which, it is of no help to the appellant. Further, it is the settled proposition of law that peculiar facts of each case are to be examined, considered and appreciated first before applying any codified or judgemade law thereto. Sometimes, difference of one additional fact or circumstance can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundra Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533 .

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During the course of hearing, learned senior counsel for the appellant failed to point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments passed by both the learned courts below. He also failed to put into service any other substantive argument so as to convince this Court to take a different

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RSA No.619 of 1986

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[11]

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view than the one taken by the learned courts below. Further, no question of law much less substantial question of law have been found involved in the present case, which is sine qua non for interference at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that the impugned judgments and decrees deserve to be upheld, for this reason as well.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out. Consequently, the impugned judgments and decrees passed by the learned courts below are upheld.

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Resultantly, the instant appeal stands dismissed, however, with

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no order as to costs.

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March 3, 2014. ‘om’

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( RAMESHWAR SINGH MALIK ) JUDGE

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(O&M)Smt. Guro v. Gurnam Singh and Ors.

Case brief

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(O&M)Smt. Guro v. Gurnam Singh and Ors.

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