Raj Kumar and anr. Vs. Kailon Devi - Court Judgment

SooperKanoon Citationsooperkanoon.com/634744
SubjectCivil;Family
CourtPunjab and Haryana High Court
Decided OnJul-20-2009
Judge Sabina, J.
Reported in(2010)157PLR107
AppellantRaj Kumar and anr.
RespondentKailon Devi
DispositionAppeal dismissed
Cases ReferredKailo Devi v. Ram Chander
Excerpt:
- sabina, j.1. vide this judgment, rsa nos. 5020, 5021 and 5152 of 2003 would be disposed of as the civil suits, out of which the said appeals had arisen, were consolidated and were disposed of vide common judgment.2. raj kumar and giani ram filed a suit against kailo devi for declaration and permanent injunction. kailo devi filed a suit against ram kumar and others for declaration and permanent injunction. both the said suits were consolidated by the trial court vide order dated 13.8.2001 as the matter involved in both the suits was common. the present appeals have arisen out of the said suits.3. the case of the parties as noticed by the trial court in paras no. 2 to 8 of its judgment is as under:2. briefly the fact of the case titled raj kumar v. kailo devi is that the agricultural land measuring 54 kanals 5 marlas being 1085/5424 share of total land measuring 271 kanals 4 marias comprised in khewat no. 12, khatoni no. 18 to 26 is situated within the revenue estate of village karah sahib, district kurukshetra vide jamabandi for the year 1995-96. this land was previously owned by ram chander son of inder singh who was married to banti devi. both ram chander and banti devi had expired issueless.3. it is further averred that ram chander had three brothers namely lal singh, dayal singh, ram singh and one sister dayalo. all these brothers and sister had already expired prior to the death of ram chander and the plaintiffs are the natural heir of deceased ram chander. the defendant kailo devi is the wife of hawa singh of gaddar patti devi garh road, kaithal and her daughter namely rekha devi was born from the loins of hawa singh. kailo devi is the daughter of dayal singh's wife's uncle and she used to visit the house of her cousin sister during life time of ram chander and at that occasion, illicit relations developed between ram chander and defendant. after the death of ram chander the defendant kailo devi has started alleging herself to be heir of deceased ram chander, on the basis of will dated 11.6.1996 but the same is null void on the following grounds:(a) the will dated 11.6.1996 is a result of manipulation and deceased ram chander never executed any will with his free consent.(b) that there was no occasion to execute the will in favour of the defendant by excluding the natural heirs including the plaintiffs as the plaintiffs were serving deceased ram chander during his life time.(c) the will dated 11.6.1996 is bad due to in competency mental weakness of testator.4. it is further averred that the will dated 11.6.1996 does not confer any right, title or interest in the suit land to the defendant. the plaintiffs requested the defendant to admit their claim but in vain. hence, the cause of action arose to the plaintiffs and present suit has been filed in which a decree for declaration is sought to the effect that the plaintiffs and other natural heirs of deceased ram chander are the owners in possession of the suit land and the defendant has got no right by virtue of alleged will dated 11.6.1996 in the suit land and the will dated 11.6.1996 is null and void and not binding on the plaintiffs. the plaintiffs have also sought a decree for permanent injunction restraining the defendant from interfering in any manner with the possession of plaintiffs over the suit land or to alienate the same.5. notice of this suit was given to the defendant, who appeared and filed the written statement. in her written statement, besides taking preliminary objections on the grounds of maintainability, concealment of true fact etc. it is further averred that the plaintiffs are not the natural heirs of ram chander. kailo devi is the real cousin sister of smt. chhoto, mother of plaintiff no. 2. ram chander was known to defendant on account of the near relation with the sister-in-law of deceased ram chander. the defendant was turned out by her first husband hawa singh and in the year 1994 the defendant had intimate relation with ram chander and defendant entered to second marriage with ram chancier according to rites and custom and started to live in the company of deceased ram chander as his wife. in the voter list prepared in the year 1996, the defendant has been shown to be the wife of ram chander alias chander. ram chander is order to reward the services rendered by defendant executed a will in her favour and bequeathed all his movable or immovable property.6. the will dated 10.6.1996 is a registered will and was executed by deceased ram chander in a sound disposing state of mind. rest of the allegations of the plaint were specifically denied by the defendant and prayed for dismissal of the present suit.7. the brief facts of the case titled kailo devi v. ram kumar etc. is that kailo devi, the plaintiff is the owner in possession of the agricultural land measuring 54 kanals 5 marlas being 1085/5424 share of total land measuring 271 kanals 4 marls comprised in khewat no. 12, khatoni nos. 18 to 26 in all 47 kittas, is situated at village karah sahib, tehsil pehowa, district kurukshetra as per jamabandi for the year 1995-96.8. it is further averred that ram chander alias chander who was the husband of kailo devi, was the owner in possession of this land, who expired on 16.3.1998. ram chander executed a will in favour of kailo devi and bequeathed the suit land in kailo devi. the suit filed kailo devi v. ram chander was filed for permanent injunction restraining the defendant from interfering in any manner in the peaceful possession of kailo 'devi over the suit land. in the written statement, the will in favour of kailo devi was disputed and it was averred that neither kailo devi is the owner of the suit land nor is in possession over the same and prayed for dismissal of the present suit.4. on the pleadings of the parties, following issues were framed by the trial court:1. whether the plaintiffs are the owner in possession of the suit land as alleged? opp2. whether the plaintiffs are entitled to relief of permanent injunction as prayed for? opp3. whether the impugned will dated 11.6.1996 is illegal and void? opd4. whether the suit of the plaintiff is not maintainable in the present form? opd5. whether the plaintiffs have no locus standi to file the present suit? opd6. relief.5. after hearing learned counsel for the parties, i am of the opinion that the present appeals deserve to be dismissed.6. the controversy involved in these cases is as to whether deceased ram chander @ chander had executed the will in question dated 11.6.1996 in favour kailo devi. the only argument raised by learned counsel for the appellants is that the will in question had not been duly proved by the propounder. the attesting witness examined by the propounder to prove execution of the will had failed to support the case of the propounder kailo devi.7. admittedly, ram chander @ chander was owner in possession of the suit land. he was married to banti devi. three brothers and sister of testator ram chander predeceased him. the defendants in a suit filed by kailo devi and plaintiffs raj kumar and giani ram in a suit filed by them against kailo devi, are nephew of testator ram chander. chhotto devi was wife of dayal singh (father of plaintiff giani ram). bohti devi, sister of chhotto, was married to ram singh, father of sher singh and amar singh (defendant nos. 11 and 12 in the suit filed by kailo devi). kailo devi was cousin sister of chhotto devi and bohti devi and used to visit chhotto devi. consequently she (kailo devi) developed intimacy with the testator. in the written statement filed by the defendants, in the suit filed by kailo devi, in preliminary objection no. 3, it has been averred as under:that the present plaintiff is in fact wife of one hawa singh of patti gaddar devi garh road kaithal. the present plaintiff even blessed with a daughter namely rekha devi from the loins of said hawa singh of patti gaddar kaithal.that the present plaintiff is the daughter of dayal singh's wife uncle (brother of ram chander deceased) and she had been visiting off and on to her said cousin sister (dayal singh's wife) in the life time of ram chander. at that occasion the illicit relations developed between ram chander and present plaintiff. now taking illegal benefit of that occasion the plaintiff had started claiming herself to be wife of deceased ram chander which in fact, she is not as such.8. ram chander executed the will in question in favour of kailo devi and hence, both the suits were filed in which the question for consideration was as to whether the will executed by ram chander in favour of kailo devi was a genuine will.9. 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.10. in the present cast, the will in question is a registered document. a perusal of the will ex.p-1 reveals that the executant had been treating the beneficiary as his wife. it has further been averred in the will that he was being looked after by kailo devi and hence, after his death his entire property should be inherited by kailo devi. the said will bears the thumb impression of executant ram chander and was attested by satpal and ronki ram. it was scribed by jai kumar. the intimacy between the executant and the propounder is not in dispute. kailo devi was cousin of chhotto and bohti devi, who were wives of brothers of the executant. in these circumstances, she developed intimacy with ram chander and consequently he executed the will in favour of kailo devi. the endorsement on the will was made by the sub registrar that the contents of the will were read over to the executant has a presumption of truth. dw4 ronki ram, one of the attesting witnesses of the will, appeared in the witness box and deposed that he had thumb marked a document at the instance of ram chander. the age of the said witness was mentioned as 81 years when his statement was recorded on 8.10.2001 and it appears that he could not give the details with regard to execution of the will. however, dw-5 jai kumar, who was the scribe of the will, had in fact, proved the will. the said witness had deposed that he had scribed the will dated 10.6.1996 and had made an entry at sr. no. 105 in his register. he had scribed the will at the instance of ram chander in favour of kailo devi. thereafter, it was read over to him in the presence of ronki ram and satpal. the will was then thumb marked/signed by the executant and the witnesses in his presence. although a scribe cannot be treated as an attesting witness but in the present case, the scribe has categorically deposed with regard to the execution of the will and thus, his statement cannot be treated to be that of merely a scribe as the will after it was scribed by him was duly executed in his presence.11. hence, the will in question, which was duly executed by the executant, cannot be said to be surrounded by suspicious circumstances as the executant, who was not having any child of his own, had executed the will in favour of kailo devi, whom he was treating as his wife. the executant had died on 16.3.1998, whereas, the will in question was executed on 11.6.1996.12. in these circumstances, the courts below had rightly held that the will in question was duly proved to have been executed by executant ram chander in favour of kailo devi and was a genuine will. i do not find any illegality or irregularity in the impugned judgments which may give rise to any substantial question of law for consideration of this court in these second appeals.accordingly, the present appeals stand dismissed.
Judgment:

Sabina, J.

1. Vide this judgment, RSA Nos. 5020, 5021 and 5152 of 2003 would be disposed of as the civil suits, out of which the said appeals had arisen, were consolidated and were disposed of vide common judgment.

2. Raj Kumar and Giani Ram filed a suit against Kailo Devi for declaration and permanent injunction. Kailo Devi filed a suit against Ram Kumar and others for declaration and permanent injunction. Both the said suits were consolidated by the trial Court vide order dated 13.8.2001 as the matter involved in both the suits was common. The present appeals have arisen out of the said suits.

3. The case of the parties as noticed by the trial Court in paras No. 2 to 8 of its judgment is as under:

2. Briefly the fact of the case titled Raj Kumar v. Kailo Devi is that the agricultural land measuring 54 Kanals 5 Marlas being 1085/5424 share of total land measuring 271 Kanals 4 Marias comprised in Khewat No. 12, Khatoni No. 18 to 26 is situated within the revenue estate of village Karah Sahib, District Kurukshetra vide jamabandi for the year 1995-96. This land was previously owned by Ram Chander son of Inder Singh who was married to Banti Devi. Both Ram Chander and Banti Devi had expired issueless.

3. It is further averred that Ram Chander had three brothers namely Lal Singh, Dayal Singh, Ram Singh and one sister Dayalo. All these brothers and sister had already expired prior to the death of Ram Chander and the plaintiffs are the natural heir of deceased Ram Chander. The defendant Kailo Devi is the wife of Hawa Singh of Gaddar Patti Devi Garh Road, Kaithal and her daughter namely Rekha Devi was born from the loins of Hawa Singh. Kailo Devi is the daughter of Dayal Singh's wife's uncle and she used to visit the house of her cousin sister during life time of Ram Chander and at that occasion, illicit relations developed between Ram Chander and defendant. After the death of Ram Chander the defendant Kailo Devi has started alleging herself to be heir of deceased Ram Chander, on the basis of Will dated 11.6.1996 but the same is null void on the following grounds:

(a) the Will dated 11.6.1996 is a result of manipulation and deceased Ram Chander never executed any Will with his free consent.

(b) That there was no occasion to execute the Will in favour of the defendant by excluding the natural heirs including the plaintiffs as the plaintiffs were serving deceased Ram Chander during his life time.

(c) The Will dated 11.6.1996 is bad due to in competency mental weakness of testator.

4. It is further averred that the will dated 11.6.1996 does not confer any right, title or interest in the suit land to the defendant. The plaintiffs requested the defendant to admit their claim but in vain. Hence, the cause of action arose to the plaintiffs and present suit has been filed in which a decree for declaration is sought to the effect that the plaintiffs and other natural heirs of deceased Ram Chander are the owners in possession of the suit land and the defendant has got no right by virtue of alleged will dated 11.6.1996 in the suit land and the will dated 11.6.1996 is null and void and not binding on the plaintiffs. The plaintiffs have also sought a decree for permanent injunction restraining the defendant from interfering in any manner with the possession of plaintiffs over the suit land or to alienate the same.

5. Notice of this suit was given to the defendant, who appeared and filed the written statement. In her written statement, besides taking preliminary objections on the grounds of maintainability, concealment of true fact etc. It is further averred that the plaintiffs are not the natural heirs of Ram Chander. Kailo Devi is the real cousin sister of Smt. Chhoto, mother of plaintiff No. 2. Ram Chander was known to defendant on account of the near relation with the sister-in-law of deceased Ram Chander. The defendant was turned out by her first husband Hawa Singh and in the year 1994 the defendant had intimate relation with Ram Chander and defendant entered to second marriage with Ram Chancier according to rites and custom and started to live in the company of deceased Ram Chander as his wife. In the voter list prepared in the year 1996, the defendant has been shown to be the wife of Ram Chander alias Chander. Ram Chander is order to reward the services rendered by defendant executed a Will in her favour and bequeathed all his movable or immovable property.

6. The Will dated 10.6.1996 is a registered Will and was executed by deceased Ram Chander in a sound disposing state of mind. Rest of the allegations of the plaint were specifically denied by the defendant and prayed for dismissal of the present suit.

7. The brief facts of the case titled Kailo Devi v. Ram Kumar etc. is that Kailo Devi, the plaintiff is the owner in possession of the agricultural land measuring 54 kanals 5 marlas Being 1085/5424 share of total land measuring 271 kanals 4 marls comprised in Khewat No. 12, Khatoni Nos. 18 to 26 in all 47 Kittas, is situated at village Karah Sahib, Tehsil Pehowa, District Kurukshetra as per jamabandi for the year 1995-96.

8. It is further averred that Ram Chander alias Chander who was the husband of Kailo Devi, was the owner in possession of this land, who expired on 16.3.1998. Ram Chander executed a Will in favour of Kailo Devi and bequeathed the suit land in Kailo Devi. The suit filed Kailo Devi v. Ram Chander was filed for permanent injunction restraining the defendant from interfering in any manner in the peaceful possession of Kailo 'Devi over the suit land. In the written statement, the Will in favour of Kailo Devi was disputed and it was averred that neither Kailo Devi is the owner of the suit land nor is in possession over the same and prayed for dismissal of the present suit.

4. On the pleadings of the parties, following issues were framed by the trial Court:

1. Whether the plaintiffs are the owner in possession of the suit land as alleged? OPP

2. Whether the plaintiffs are entitled to relief of permanent injunction as prayed for? OPP

3. Whether the impugned Will dated 11.6.1996 is illegal and void? OPD

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiffs have no locus standi to file the present suit? OPD

6. Relief.

5. After hearing learned Counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed.

6. The controversy involved in these cases is as to whether deceased Ram Chander @ Chander had executed the Will in question dated 11.6.1996 in favour Kailo Devi. The only argument raised by learned Counsel for the appellants is that the Will in question had not been duly proved by the propounder. The attesting witness examined by the propounder to prove execution of the Will had failed to support the case of the propounder Kailo Devi.

7. Admittedly, Ram Chander @ Chander was owner in possession of the suit land. He was married to Banti Devi. Three brothers and sister of testator Ram Chander predeceased him. The defendants in a suit filed by Kailo Devi and Plaintiffs Raj Kumar and Giani Ram in a suit filed by them against Kailo Devi, are nephew of testator Ram Chander. Chhotto Devi was wife of Dayal Singh (father of plaintiff Giani Ram). Bohti Devi, sister of Chhotto, was married to Ram Singh, father of Sher Singh and Amar Singh (defendant Nos. 11 and 12 in the suit filed by Kailo Devi). Kailo Devi was cousin sister of Chhotto Devi and Bohti Devi and used to visit Chhotto Devi. Consequently she (Kailo Devi) developed intimacy with the testator. In the written statement filed by the defendants, in the suit filed by Kailo Devi, in preliminary objection No. 3, it has been averred as under:

That the present plaintiff is in fact wife of one Hawa Singh of Patti Gaddar Devi Garh Road Kaithal. The present plaintiff even blessed with a daughter namely Rekha Devi from the loins of said Hawa Singh of Patti Gaddar Kaithal.

That the present plaintiff is the daughter of Dayal Singh's wife uncle (brother of Ram Chander deceased) and she had been visiting off and on to her said cousin sister (Dayal Singh's wife) in the life time of Ram Chander. At that occasion the illicit relations developed between Ram Chander and present plaintiff. Now taking illegal benefit of that occasion the plaintiff had started claiming herself to be wife of deceased Ram Chander which in fact, she is not as such.

8. Ram Chander executed the Will in question in favour of Kailo Devi and hence, both the suits were filed in which the question for consideration was as to whether the Will executed by Ram Chander in favour of Kailo Devi was a genuine Will.

9. 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.

10. In the present cast, the Will in question is a registered document. A perusal of the Will Ex.P-1 reveals that the executant had been treating the beneficiary as his wife. It has further been averred in the Will that he was being looked after by Kailo Devi and hence, after his death his entire property should be inherited by Kailo Devi. The said Will bears the thumb impression of executant Ram Chander and was attested by Satpal and Ronki Ram. It was scribed by Jai Kumar. The intimacy between the executant and the propounder is not in dispute. Kailo Devi was cousin of Chhotto and Bohti Devi, who were wives of brothers of the executant. In these circumstances, she developed intimacy with Ram Chander and consequently he executed the Will in favour of Kailo Devi. The endorsement on the Will was made by the Sub Registrar that the contents of the Will were read over to the executant has a presumption of truth. DW4 Ronki Ram, one of the attesting witnesses of the Will, appeared in the witness box and deposed that he had thumb marked a document at the instance of Ram Chander. The age of the said witness was mentioned as 81 years when his statement was recorded on 8.10.2001 and it appears that he could not give the details with regard to execution of the Will. However, DW-5 Jai Kumar, who was the scribe of the Will, had in fact, proved the Will. The said witness had deposed that he had scribed the Will dated 10.6.1996 and had made an entry at Sr. No. 105 in his register. He had scribed the Will at the instance of Ram Chander in favour of Kailo Devi. Thereafter, it was read over to him in the presence of Ronki Ram and Satpal. The Will was then thumb marked/signed by the executant and the witnesses in his presence. Although a scribe cannot be treated as an attesting witness but in the present case, the scribe has categorically deposed with regard to the execution of the Will and thus, his statement cannot be treated to be that of merely a scribe as the Will after it was scribed by him was duly executed in his presence.

11. Hence, the Will in question, which was duly executed by the executant, cannot be said to be surrounded by suspicious circumstances as the executant, who was not having any child of his own, had executed the Will in favour of Kailo Devi, whom he was treating as his wife. The executant had died on 16.3.1998, whereas, the Will in question was executed on 11.6.1996.

12. In these circumstances, the Courts below had rightly held that the Will in question was duly proved to have been executed by executant Ram Chander in favour of Kailo Devi and was a genuine Will. I do not find any illegality or irregularity in the impugned judgments which may give rise to any substantial question of law for consideration of this Court in these second appeals.

Accordingly, the present appeals stand dismissed.