ATMA SINGH Vs. GURO & OTHERS

JUDGEMENT

(1.) This appeal is on behalf of Atma Singh whose suit for obtaining a declaration that he was in possession of the agricultural land left by Ganga Singh on his death on October 10, 1968, was decreed by the Sub- Judge First Class, Patti, by judgment dated July 25, 1972, but was dismissed, on an appeal preferred by Guro defendant No. 1, by the Additional District Judge by Judgment dated Sept. 22, 1973. The plaintiff-appellant had claimed his right to the property on the basis of the Will executed by Ganga Singh in his favour on October 2, 1968. The Will being unregistered, the revenue authorities had sanctioned a mutation in favour the revenue authorities had sanctioned a of defendant No. 1, who was Gang Sing's sister's daughter and on that account she was made a party to the suit. The plaintiff also impleaded all the near collaterals of Ganga Singh and none out of them contested the suit.

(2.) Ganga Singh's grandfather is Taba Singh who had a brother named Bahadur Singh. There were two sons of Bahadur Singh, Mangal Singh and Ram Singh. Atma Singh the plaintiff, is the son of Mangal Singh. Ram Singh had a son named Ghasita, and his sons Bachittar Singh, Gurcharan Singh and Ranjit Singh and his daughter Guro find a mention in the record of the case-Said Guro is a different person from Guro defendant No. 1 who gave evidence as DW, but the record of the evidence does not bear the number of DW though some of the DWs have been numbered, Ranga Singh a brother of Ganga Singh, predeceased him and his property was also succeeded to by Ganga Singh.

(3.) The only point for determination in this appeal is whether the Will, Exhibit P-1, is a genuine document. The plaintiff produced its scribe Manohar Lal PW-1, a petty shopkeeper of village Dall where the land in dispute is situated. It is in the Urdu language and is thumb-marked by Ganga Singh. Out of the attesting witnesses, Kehar Singh PW 2, a lambardar and sarpanch of the village, and Surjan Singh PW 3, a member panchayat, appeared. The other attesting witnesses to the Will are Sarda Singh, a Ramgarhia of the village, Chanan Singh, a member panchayat of the village, and Hazara Singh a cultivator of the village. Ganga Singh was Ramgarhia by caste and for that reason Sarda Singh seems to have been associated in the execution of the Will. The trial Court found that the Will had been executed while Ganga Singh was in full control of his senses. The lower appellate Court mainly relied upon H. Venkatachala Iyengar v. B.N. Thimmayamma and others, 1959 AIR(SC) 443, so as to find some suspicious circumstances for holding that the Will could not be relied upon by Atma Singh for basing his claim to the estate of the deceased. There is, however, no clear finding on this point whether the thumb impression existing on the Will is that of Ganga Singh or not. There is also no finding whether Ganga Singh was not in his senses when the Will purported to have been executed. As may as six reasons are discernible from paragraph 7 of the judgment of the lower appellate Court for disbelieving the Will. One of them is that the Will is unregistered. When a Will is not a compulsorily registerable document, no prejudice could be shown to an unregistered Will. Had it been registered it would have been more easy for the legatee to prove the same. The Will cannot be disbelieved merely on the ground of non-registration. Two more reasons flow from the so-called incorrect statements made in the Will itself. There is a recital in the Will that the testator had no issue and no sister. It is at present undisputed that Ganga Singh had a sister Banti. The Will cannot be read in such a manner as to make this kind of recital that he has never had a sister. All that he was saying was that at the time of the execution of the Will no sister was living. Even if this interpretation were to be given that he was denying the factum of his fever having any sister it seems to be excusable as it appears from the statement of Guro defendant No. 1 her-self made on March 22, 1973, that her mother died 40 years back. Ganga Singh himself died at the age of 45 years and may thus be having no recollection of his deceased sister. At the utmost it can be said that he was anticipating a claim to his property by Guro as the daughter of his sister and that for helping Atma Singh he got this fact recited in the Will that he no sister by the name of Banti. The making of an intentionally wrong statement in the Will cannot cast any doubt on the contents of those part thereof by which a specified property is bequeathed to the legatee. Anyway, the legatee cannot be made to suffer by some untruthfulness on the part of the testator. Another wrong statement made in the Will relied upon by the lower appellate Court for disbelieving the Will itself is that the testator mentioned therein that Atma Singh was his real brother though he was related to him only as a cousin. It was Atma Singh who had been keeping Ganga Singh with him and had also been rendering services to him. Ganga Singh wanted to show affection to him by calling him his real brother in the Will. He could thereby mean that he had as much love for Atma Singh as for a real brother. The Court narrates this to be the fourth reason that Guro being a natural heir no reason was being given in the Will for excluding her. Firstly, he did not want to admit to be his sister and he could hardly admit Guro as being the next heir. Secondly, there is no evidence to show that Guro ever rendered any services to Ganga Singh and, on the other hand, Atma Singh had been serving him. Under these circumstances sufficient reason can be found as to why Guro was excluded for bequeathing the property too Atma Singh. Manohar Lal PW 1 admitted this fact that Ganga Singh was a literate person and that in spite of his being so his thumb-impression was obtained. The extent of his literacy is at all not apparent from the record. This is at all not the case of defendant No. 1 that the thumb-impression on the Will had been obtained after Ganga Singh had actually died. There is no evidence to show that he was not in his senses when the scribe asked him to put his thumb impression on the Will. The marking of the thumb-impression cannot, therefore, be any kind of suspicious circumstances invalidating the Will. And in that manner the fifth point also fails. The sixth point taken in the lower appellate Court against the appellant is that before the revenue authorities he had taken upon this position that the thumb-impression by Ganga Singh had been put in his presence. At the trail he said that he was not present at the time of the execution of the Will. This lapse on the part of Atma Singh may be due to faulty memory or, may be, he was trying to avoid this kind of criticism that he had tried to exercise some influence in getting the Will executed in his favour. When Ganga Singh had made his intention known in the presence of so may villagers it cannot be said that there was undue influence exercised by Atma Singh in getting the thumb-impression marked on the Will.