GURO Vs. ATMA SINGH

JUDGEMENT

(1.) The question for consideration in this appeal relates to the genuineness of a will said to be executed by one Ganga singh whereby he bequeathed all his property to his distant cousin, Atma singh, respondent 1, the grandson of the brother of the grandfather of ganga Singh. Ganga Singh had a brother Ranga Singh and a sister Banti. Both, Ranga Singh and Banti had died during the life time of Ganga singh. Smt Guro, the appellant herein, is the daughter of Banti. At the time of his death, on 10/10/1968, Ganga Singh was having one- third share in land measuring 148 kis. 11 mis. in village Dall, Tehsil Patti, district amritsar. On 2/10/1968, Ganga Singh is said to have executed the will in question whereby he bequeathed his entire property to respondent 1. After the death of Ganga Singh, proceedings regarding mutation of the lands in his share were initiated and in those proceedings respondent I sought mutation in his favour on the basis of the will. The appellant sought mutation as the nearest heir, being daughter of Ganga singh's sister. The Assistant Collector, I Grade, Patti sanctioned the mutation in favour of the appellant and did not accept the will on the ground that it was not beyond suspicion. Thereafter respondent 1 filed suit for declaration wherein he claimed one-third share of Ganga Singh on the basis of the will dated 2/10/1968. The said suit was contested by the appellant who disputed the genuineness of the will. Respondent I did not accept the claim of the appellant and disputed that she is the daughter of the sister of the testator, Ganga Singh. The Sub-Judge, I class, Patti by his judgment dated 25/07/1972 decreed the said suit of respondent I on the view that the execution of the will by Ganga Singh was duly proved and at the time of the said execution, the testator was in a sound state of mind. The Sub-Judge, however, found that the appellant is the daughter of Ganga Singh's sister Banti. On appeal, the Additional district Judge, amritsar, by his judgment dated 22/09/1973, reversed the decree of the Sub-Judge and dismissed the suit of respondent I, and found that the will was not proved to be a genuine document executed by Ganga Singh inasmuch as there were certain features which threw suspicion with regard to its valid execution. The High court of punjab and Haryana, by judgment dated 28/10/1982, allowed the second appeal filed by respondent 1 and while setting aside the judgment and decree of the appellate court, restored the judgment of the trial court on the view that the will had been validly executed. Feeling aggrieved by the said decision of the High court, the appellant has filed this appeal.

(2.) In the will, the testator, Ganga Singh has stated that he had no issue nor he had any sister and that he had one brother who also died andhe is the owner of the property and the land situated in village Dall. The testator has further stated that he has been ill for a long time and has become blind and was now seriously ill and there is no hope for his survival. He has further stated that after his death, Atma Singh, son of mangal Singh, son of Bahadur Singh would be owner of his property because he was his real brother and he would be really entitled. The scribe of the will was Manohar Lal, a shopkeeper in Dall, and there is thumb impression of the testator. It has been attested by five persons, namely, Kehar Singh, Sarpanch Lambardar, Dall, Surjan Singh, Chanan singh, Sardara Singh and Hazara Singh. In order to prove the will respondent I examined the scribe Manohar Lal (Public Witness 1 and two attesting witnesses Kehar Singh (Public Witness 2 and Surjan Singh (Public Witness 3.

(3.) With regard to proof of a will the law is well settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Where, however there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last will of the testator. (S. Venkalachala lyengar v. B. N. Thimmajamma, Rani Purnima Devi v. Kumar Kilagendra Narayan Dev, Jaswant Kaur v. Amrit Kaur.