KURA RAM Vs. RATTNI

JUDGEMENT

(1.) This appeal has been preferred by plaintiff Kura Ram against the judgment and decree of learned Additional District Judge who allowed the appeal of the defendant and dismissed the suit of the plaintiff. The plaintiff initially filed a suit for declaration to the effect that he is owner-in-possession of the property in dispute on the basis of a Will alleged to have been executed in his favour by Shrimati Manbhari who was her maternal grandmother. Shrimati Manbhari had two daughters, namely, Rattni and Chhoto. Kura Ram is son of Chhoto. During the pendency of the suit before the trial court plaintiff filed an application for amendment of the plaint in order to seek relief of possession of part of the property alleging that defendant Rattni had taken possession of part of' the property during the pendency of the suit. The said amendment of the plaint was allowed by the trial Court but while passing the decree seems to have overlooked the fact that the plaint had been amended by the plaintiff seeking relief of possession with regard to part of the property in dispute. The learned trial court decreed the suit holding that Shrimati Manbhari had executed a valid Will dated 14th January, 1974 in favour of the plaintiff. Being aggrieved of the judgment and decree of the learned trial Court, defendant filed appeal before the learned Additional District Judge, Jind. The learned Additional District Judge though held that the Will propounded by the plaintiff bears the thumb impression of Shrimati Manbhari, the execution of the Will is shrouded by suspicious circumstances and propounder having failed to explain the suspicious circumstances, the Will set up by the plaintiff cannot be said to be a genuine document.-Thus, the finding of the learned trial Court was set aside and the suit of the plaintiff was dismissed.

(2.) The learned counsel for the appellant has contended that once the learned lower appellate Court has returned a finding that the Will bears the thumb impression of Shrimati Manbhari and the execution of the Will having been proved by the attesting witnesses, namely, Surat Singh and Zile Singh, there was no reason for holding that the Will is not a genuine document. The learned counsel further submitted that the defendant has nowhere taken up the plea in the written statement that the Will is shrouded by suspicious circumstances and thus the first appellate court was not justified in taking into consideration the suspicious circumstances. Merely because the plaintiff happened to be present at the time of execution of the Will is not sufficient to hold that he took prominent part in the execution of the Will. In support of his argument, he has relied upon judgments of this court reported in Kartar Kaur v. Gurbax Singh,1970 72 PunLR 69 and Charan Singh v. Balwant Singh, 1975 RajdhaniLR 88.

(3.) After giving my thoughtful consideration to the entire matter, I find that there is no force in the contentions of Shri Jang Bahadur Singh, Advocate, learned counsel for the appellant. It is correct that plaintiff has proved on the record that the alleged Will dated 14th January, 1974 bears the thumb impression of Shrimati Manbhari but the Will is shrouded by suspicious circumstances and the propounder has failed to discharge the heavy onus of explaining the suspicious circumstances surrounding the execution of the Will. Admittedly, Shrimati Manbhari at the time of alleged execution of the Will was more than 80 years old and she died either on 15th or the night intervening 15th and 16th of January, 1974 as it has come on the record that she was cremated on 16th January, 1974 at 7.30 A.M. Both the attesting witnesses, Surat Singh and Zile Singh have admitted in their statements that Kura Ram had accompanied them to Jind and was present at the time when Shrimati Manbhari is stated to have executed the Will in favour of the plaintiff. In order to reach Jind, testator along with plaintiff and the attesting witnesses had travelled from the village by train as Jind is quite at a distance from the village. Propounder who was present at the time of execution of the Will has nowhere explained as to why the Will was not executed at Safidon Tehsil head-quarters which is nearer to the village. A reading of the Will shows that no reason whatsoever has been given for excluding defendant who was another daughter of the deceased. There is nothing on the record to show that the defendant ever had any strained relations with the deceased though in the evidence an effort has been made to show that she having married out of the caste, was deprived of the property by the deceased but this explanation cannot be accepted as no such reason has been given by the deceased in the Will. Both the attesting witnesses have stated that they had gone to the office of the Sub-Registrar to get the Will registered but the Sub-Registrar was not available and as such the Will was got attested through a Notary Public. The plaintiff in his state ment has taken a contrary position in saying that the Sub-Registrar had demanded a sum of Rs. 1,000/- before agreeing to register the Will. The very fact that the deceased died after one day of the execution of the Will and the haste shown by the plaintiff to get a Will executed from Shrimati Manbhari in his favour clearly creates a reasonable doubt with regard to the geniusiness of the Will propounded by the plaintiff. If the propounder himself takes active part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the suspicion by clear and satisfactory evidence. In the present case the plaintiff who is the sole beneficiary under the Will, took prominent part at the time when the Will is alleged to have been executed by the deceased. Moreover, dying of deceased on the very next day also gives an indication that the testator's mind was not free and this is the reason why the dispositions made in the Will are unnatural and unfair. The defendant is being deprived of the property without any rhyme or reason.