High Court of Punjab and HaryanaRSA/1368/2019allowed

Surender And ANR v. Sheela Devi And Others

2024-07-12Mr. Justice Anil Kshetarpal30 pages

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"Written Submissions:- 1.

The main contention that arises for adjudication Whether the Will dated 05.01.2012 was a genuine Will or based on fraud, misrepresentation, undue influence and same is under suspicious circumstances?

The following evidence has been produced on this issue:- ORAL AND DOCUMENTARY EVIDENCE BY PLAINTIFFS The following evidence was led by the plaintiffs:- Plaintiffs' oral evidence (

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The following deficiencies or imperfections from the above evidence of the defendants elucidated during the cross examination of the defendants/appellants witnesses, which clearly shows that the Will (Ex.D1) of Ran Singh was got prepared by Sadhu Ram in collusion with witnesses and scribe with the active participation of staff of Sub Registrar, Uklana, District Hisar proving the following facts and conclusion to the hilt:- i.

The Will (Ex.D1) was not scribed by the Regular Deed Writer sitting in the Tehsil office who take signatures of the executant in his register in token of correctness of the document. The evidence of DW1-Jai Bhagwan Kundu, reproduced above, may kindly be perused in this regard.

ii.

DW1-Jai Bhagwan alleged scribe though does not claim that Will (Ex.D1) was drafted before witnesses, yet he says that witnesses thumb marked the same before him but witnesses DW3-Balwan Singh is very categoric by stating that Will (Ex.D1) was not written in his presence nor he thumb marked it before Sh. Jai Bhagwan. iii.

Further, Jai Bhagwan, Advocate DW1 says during cross examination that he marked the line on the thumb impression of Ran Singh and witnesses on the Will (Ex.D1), which is shattered by DW2-Ex. Sub Registrar, Om Parkash, who claimed that he had marked the line on the thumb impressions.

iv.

The witnesses states that the Will (Ex.D1) was written on Stamp paper of Rs.10/- brought by Sh. Jai Bhagwan which I have not seen in the light of the day. DW1-Jai Bhagwan says that he does not keep register of scribing the documents but witness Balwan Singh DW2 and Mohar Singh DW4 says that Jai Bhagwan got their signatures/thumb impression as well as of Ran Singh in his register. v.

The names of the two witnesses were not typed on the Will (Ex.D1), which shows that they were not present but were introduced later on. vi.

There are line marks on the thumb impression of Ran Singh and both the witnesses meaning thereby paper was typed in their absence and was handed over for getting their thumb impressions on the place of tick marks.

vii.

The proceedings of registration were typed before presenting it to the Sub Registrar, as admitted by DW5-Om Parkash, Retired Tehsildar. viii.

The so called witnesses Balwan Singh and Mohar Singh, who do not

know the contents of the Will (Ex.D1) stated that the endorsement Mark 'C' appearing on the back of the page 2 of the Will (Ex.D1) was typed by Jai Bhagwan-DW1.

ix.

Sub Registrar says that thumb impression Mark 'A' and Mark 'B' were put before him while DW1-Jai Bhagwan says these were put before him but he did not go to the Tehsil Office.

DW5-Om Parkash is specifically admitting that endorsement Mark 'C' and Mark 'D' were not typed before him but were already typed when the Will (Ex.D1) was prepared. As such, to say that he read over the Will (Ex.D1) or the executant after admitting it to be correct put thumb impression is out of question.

The following facts elucidated during evidence reproduced above show that the Will (Ex.D1) is shrouded in suspicious circumstances:- i.

The age of the deceased is written in the Will (Ex.D1) as 62 years, while he was 82 years old as admitted by his son Sadhu Ram DW3. Had the deceased executed the Will (Ex.D1) of his free and conscious mind, then he would have given correct age, but age of 62 was got written in the Will (Ex.D1) dated 05.01.2012 by interested person to show that the testator was in a good state of mind, whereas, he died on 30.05.2013 within 11⁄4 years of the alleged Will (Ex.D1). Discrepancy is age is not explained on record (Para No.20 of judgment in Ram Rachhpal V/s Kailash Chander & Others; Law Finder Doc ID # 141396 can be cited with advantage on this point).

ii.

The deceased was having wife Sheela-Plaintiff No.1 and unmarried daughter Sunita-Plaintiff No.2 at the time of alleged Will (Ex.D1). There is no mention in the Will (Ex.D1) whether his wife is alive or dead or whether the daughter was married or unmarried or they were not having good relations with him. There was complete silence in the Will (Ex.D1). It is most artificial and unnatural for a man to disinherit his wife completely without any provision for maintenance. iii.

Similarly, father could not have thought of making any provision for unmarried daughter. The defendant No.3-Sadhu Ram in order to overcome this suspicion took a false plea in the written statement that relations between plaintiffs and Ran Singh were strained and due to strained relations, plaintiffs left the society of deceased in the year 2006, which fact has not been mentioned in the Will (Ex.D1). iv.

This allegation was found false in view of the documents (Ex.D2/1 to Ex.D2/4, Ex.PW7, PW8 and PW9) and making the Will (Ex.D1) to be suspicious, unnatural, unrealistic, unfair and improbable. v.

Thus, omitting the name of the wife and unmarried daughter having no income and disinheriting them makes the Will (Ex.D1) to be ingenuine and not free from suspicion.

vi.

The following judgments can be cited with advantage:- i.

Kalyan Singh V/s Chhoti; Law Finder Doc ID 88956 ii.

Jagdish Chand Sharma V/s Narain Singh Saini (dead); Civil Appeal No.4181-4182 of 2015 D/o 01.05.2015 iii.

Adivekka V/s Hanamavva Kom Venkatesh D by LRs; Law Finder Doc ID 129161 iv.

Bhajan Kaur (since deceased) through LRs and Another V/s Hazara Singh (since deceased) through LRs; Law Finder Doc ID 532104 v.

Dhan Kaur (Smt.) V/s Parkash Singh & Others; Law Finder Doc

+ ID 129272 vi.

Jagir Singh V/s Ranjit Kaur; Law Finder Doc ID 19172 vii.

Suresh & Another V/s Fateh Singh & Others; Law Finder Doc ID 576414 viii.

Kishan Chand V/s Basanti Devi (died) through LRs; Law Finder Doc ID 36845 ix.

Gurdial Kaur & Another V/s Chand Kaur (deceased) through LRs; Law Finder Doc ID 362764 x.

Hira Nand V/s Maya Devi; Law Finder Doc ID 515300 xi.

Ram Rachhpal V/s Kailash Chander; Law Finder Doc ID 141396 The issue No.1 w.r.t. plaintiff's entitlement to declaration on the grounds as prayed for is discussed as under:- Admittedly, initially land of Jee Ram was received by his son Sheo Ram and then by grandsons Munshi, Amilal and Baru Ss/o Sheo Ram vide Mutation (Ex.2/B). Admittedly total land of forefathers of Munshi Ram etc. was 474K06M situated at village Bithmara, District Hisar. The following documentary evidence has been lead by the parties to the civil suit:- / 7

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$ The suit land having descended from his forefather was thus a coparcenary property. To prove the coparcenary nature of the suit land, it is not necessary to trace out the property passing through three generations of male descendants upon Sh. Ran Singh. Any property inherited upto four generations is termed as ancestral property. Even otherwise, plaintiffs had proved that initially Jai Ram ancestor of Ran Singh was owner of the land and on his death it was inherited by Sheo Ram through mutation No.253 (Ex.P11) and on death of Sheo Ram it was inherited by his three sons Munshi Ram, Ami Lal and Baru Ram vide mutation No.1425 (PW2/A). Ami Lal died issueless and through survivorship his share was succeeded by surviving members namely Munshi Ram and Baru Ram.

On the death of Munshi Ram it was inherited by Phul Singh, Ran Singh and Mian Singh vide mutation No.3441 (Ex.DE) and since mutation No.3441 was wrongly sanctioned in favour of sisters as well, therefore, they returned the land vide registered relinquishment deed as per mutation No.235 (Ex.DG). Baru Ram was issueless and he transferred his share in favour of surviving members through consent decree dated 03.04.1967. Legally, whenever father gets a property from whatsoever source from grandfather or from any source, his sons have a share in that property and it will become part of joint Hindu family property of his son and grandson and other members who form joint Hindu family with him. Chain of three generations upto Ran Singh was complete.

It was no body case that forefather of Ran Singh acquired any part of land through purchase from personal income or it was different land from the land of above mutations.

& The meaning of "joint Hindu family property" is that in which daughter is entitled to share from 09.09.2005 while wife was already having share. As per Hindu Law once father inherits the properties of his father which was his self-acquisition becomes ancestral property qua his son as held in 2013(1) CCC 391; 2014(3) PLR 84; 2018(1) PLR 79. As per para No.213 of Hindu Law by Mulla along with genesis of coparcenary as shown in Table XII-2 conception of a joint Hindu Family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. There was no need to produce excerpts when revenue record along with original record

* was got produced. PW2-Om Parkash Patwari Muhrar DC Office connected the land as well. There was presumption of coparcenary property as it was standing jointly in the name of brothers in equal share. No evidence was produced by defendants to show that land was different or was self acquired. Even the witness of defendants namely Balwan Singh-DW3 admitted that the suit land was ancestral in the hands of Ran Singh." / &.2<!5!: .!%&5&=.&$%&-2,!5%&' / # 7 & * * ' !! ( & )

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