Judgment:
Sabina, J.
1. Jagir Kaur and Gurpal Singh filed a suit for declaration that they were joint owners in possession of the land measuring 67 kanals 4 marlas situated in village Sathiala, whereas, Gurdial Singh (defendant in the said suit), filed a suit for declaration that he was owner in possession of the land measuring 67 kanals 4 marlas.
2. Since both the suits relate to the same property, these appeals would be disposed of vide a common judgment as the controversy involved in both the appeals is the same.
3. The suit filed by Jagir Kaur and Gurpal Singh for declaration was dismissed by the trial Court as well as by the lower Appellate Court. It was held that Gurpal Singh was not the adopted son of Maya Singh. Gurpal Singh, however, has not filed any appeal challenging the judgment of the trial Court. Jagir Kaur had challenged the decision of the trial Court in appeal and she has also filed RSA No. 837 of 1996. 4. The suit filed by Gurdial Singh for declaration that he was owner of the suit land was decreed by the trial Court and appeal filed against the decision of the trial Court by Jagir Kaur-appellant was dismissed. Aggrieved by the same Jagir Kaur has filed RSA No. 958 of 1996.
5. The case of Jagir Kaur-appellant is that the land in dispute was owned by her husband Maya Singh. They did not have any child. After the death of Maya Singh, she had become owner of the suit land. Maya Singh had executed a Will dated 1.11.1991 in her favour as well as Gurpal Singh-plaintiff No. 2 being his adopted son. Gurdial Singh had no concern with the suit land.
6. The case of Gurdial Singh, on the other hand, was that Maya Singh was owner of the suit land. He denied the marriage of Maya Singh with Jagir Kaur or the fact that Maya Singh and Jagir Kaur had adopted Gurpal Singh as their son. The case of Gurdial Singh further was that Maya Singh was the elder brother of his father and had executed the Will dated 16.5.1991 in his favour regarding his property. Hence, he had become owner of the suit land.
7. On the pleadings of the parties, following issues were framed by the trial Court in RSA No. 837 of 1996:
1. Whether the plaintiff No. 1 is widow and plaintiff No. 2 is the son of Maya Singh deceased as alleged in the plaint? OPP
2. Whether Maya Singh deceased executed a valid Will dated 1.11.1991 in favour of the plaintiff? OPP
3. Whether Maya Singh deceased executed a valid Will in favour of defendant on 16.5.1991? OPD
4. Whether the suit of the plaintiff is not maintainable? OPD
5. Whether the plaintiffs have no cause of action and locus standi to file the suit? OPD
6. Whether the plaintiffs are estopped from filing the suit in view of the acts and conducts? OPD
7. Relief.
8. On the pleadings of the parties, following issues were framed by the trial Court in RSA No. 958 of 1996:
1. Whether the plaintiff is entitled to the declaration as prayed for? OPP
2. Whether the plaintiff is entitled to the injunction prayed for? OPP
3. Whether deceased Maya Singh executed a valid registered Will dated 16.5.1991 in favour of the plaintiff? OPP
4. Whether defendant Jagir Kaur is not the widow of Maya Singh? OPP
5. Relief.
9. It was held in the suits filed by Jagir Kaur and Gurdial Singh that Gurpal Singh was not proved to be the adopted son of Maya Singh. The said finding was not challenged in appeal by Gurpal Singh. Hence, no discussion is necessary qua the fact that as to whether Gurpal Singh is adopted son of Maya Singh or not.
10. The substantial question of law that requires consideration in these appeals is 'whether the execution of Will dated 16.5.1991, set up by Gurdial Singh, was duly proved?'
11. Learned Counsel for appellant Jagir Kaur has submitted that the Will set up by Gurdial Singh -respondent was surrounded by suspicious circumstances as in the Will propounded by Gurdial Singh, the name of the wife of executant was not mentioned nor any reason was given as to why his wife was not entitled to any share out of the suit property. In support of her arguments, learned Counsel has placed reliance on the decision of this Court in Kishan Chand v. Basanti Devi (died through her L.Rs. : (1996-2) 113) PLR 135, wherein it was held as under:
The Will does not make mention of Smt. Basanti and hence for obvious reasons no maintenance amount has been stipulated. It has been the consistent view of this Court as of the Apex Court that a wife is entitled to maintenance from the estate of her husband. Reason to deny such a maintenance or otherwise to exclude her from her rightful claim not only is to be recorded in the document of Will but to be justified as well. No such explanation has been given in the Will for her exclusion or for denying her right of maintenance. This by itself is sufficiently suspicious circumstance to ignore the Will.
12. Learned Counsel for the respondents, on the other hand, has submitted that the Will in favour of Gurdial Singh, executed by deceased Maya Singh, had duly been proved to be a genuine document. The said Will was a registered document. Gurdial Singh was not a stranger but nephew of the deceased. Jagir Kaur appellant was getting pension and had also got cash emoluments after the death of Maya Singh. In support of his arguments, learned Counsel has placed reliance on the decision of this Court in Dalip Singh and Anr. v. Pritam Kaur (1989) 96 PLR 183, wherein it was held that the Will in favour of nephews to the exclusion of only daughter and the fact that the name of the daughter was not mentioned in the Will did not make the Will a suspicious document.
13. Learned Counsel for the respondents has further placed reliance on the decision the Apex Court in Rabindra Nath Mukherjee v. Panchanan Banerjee (dead) by LRs. : (1995-3) 111 PLR 594, wherein it was held that where the Will had been registered and the Registrar had given his certificate on it that the same was read over to the executant and admitted by him, the witnesses being interested loses its significance.
14. Learned Counsel has next placed reliance on the decision of this Court in Chanchal Singh v. Rattan Kaur (deceased) through her legal heirs Charon Singh and Ors. (1988) 93 PLR 666, wherein it was held that where the Will was executed in favour of a stranger depriving the natural heir, it did not make the Will a suspicious document.
15. After hearing learned Counsel for the parties, I am of the opinion that the present appeals deserve to be allowed.
16. A Will is a document that speaks of the mind of the deceased after his death. The executant of the Will is though never available for deposing as to under what circumstances, he has executed the Will. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will. A Will is required to be proved like any other document. Since the Will is required to be attested and as per Section 68 of the Indian Evidence Act, 1872, at least one attesting witness is required to be examined to prove due execution of the Will. The attesting witness is required to establish that the Will in question was executed by the testator in the presence of attesting witnesses and they had attested the same in the presence of the testator. In a case where the Will is a registered document then the endorsement made by the Sub Registrar that the Will had been thumb marked or signed by the executant in his presence after it was read over to the executant has a presumption of truth. It is also a settled proposition of law that in connection with Wills execution of which is alleged to be surrounded by suspicious circumstances, the test of satisfaction of judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances, the Court has to be fully satisfied that the Will has been validly executed by the testator.
17. In the present case, appellant Jagir Kaur had failed to prove the Will set up by her alleged to have been executed by Maya Singh on 1.11.1991. Learned Counsel for the appellant has not challenged the findings of the Courts below qua the Will dated 1.11.1991. The appellant has challenged the validity of the Will set up by Gurdial Singh in his favour. There is no dispute regarding the fact that the appellant is the widow of deceased Maya Singh and is getting pension after the death of Maya Singh and had also received cash emoluments of Maya Singh after his death.
18. In order to prove the due execution of the Will, Gurdial Singh examined Chanan Singh, attesting witness of the Will. The Will set up by Gurdial Singh is a registered document. Thus technically, Gurdial Singh had been successful in proving the due execution of the Will by examining one of the attesting witnesses of the Will. However, Gurdial Singh was also required to dispel the suspicious circumstances surrounding the Will.
19. A perusal of Will dated 16.5.1991, reveals that the fact that the wife of the executant Maya Singh was alive is not mentioned in the Will. It is also not mentioned in the Will as to why Jagir Kaur, wife of the executant, was not being given any share in the property owned by the executant or what effort he had made with regard to her maintenance after his death. There is no doubt that the executant could have denied any share in his property to his wife but he was expected to give some reason in this regard while executing the Will. In the Will, it has been stated that the executant did not have a son or a daughter but it is not mentioned that his wife was alive or was dead or whether he was married or un-married. Admittedly, appellant Jagir Kaur is the widow of executant Maya Singh. In case, they were not having good relations, the executant could have stated the same as a reason for disinheriting her from his property. Since the Will in question is silent in these aspects, it becomes a suspicious document.
20. Gurdial Singh is the nephew of the deceased. The deceased, after executing the Will in May, 1991, died in November, 1991. Although the Will was got registered yet in the facts and circumstances of the present case, the registration of the Will does not render the same to be a genuine document. In normal circumstances, a person is expected to make some arrangement for his wife after his death especially when he has no child. The executant could have given some explanation as to why he was excluding his wife from his inheritance. The executant could have said that after his death his nephew would look after his wife and he was bequeathing his property to his nephew Gurdial Singh or any other plausible reason. The complete silence on the part of the executant qua his wife, while executing the Will, renders the will a suspicious document and leads to the inference that the same had not been executed by the executant of his free disposing mind. Rather it leads to the inference that the propounder of the Will might have influenced the executant to execute the Will in his favour. In these circumstances, the Courts below erred in holding that the Will dated 16.5.1991 was a genuine document. Hence, the substantial question of law that arises in these appeals is answered accordingly.
21. The judgments relied upon by learned Counsel for the respondent fail to advance the case of Gurdial Singh-respondent as these are based on their own facts.
22. Accordingly, these appeals are allowed. The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the suit filed by Gurdial Singh stands dismissed, whereas, the suit filed by Jagir Kaur is decreed to the effect that Jagir Kaur is owner in possession of the suit land.