KARTAR SINGH Vs. JASWANT SINGH

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') against the judgment of reversal dated 18.1.1982 passed by the District Judge, Gurdaspur. The judgment and decree dated 7.6.1980 passed by Sub-Judge ist Class, Batala was reversed and the suit of the plaintiff-respondent Jaswant Singh was decreed.

(2.) BRIEF facts of the case necessary for deciding the controversy raised in this appeal are that one Pala Singh died on 14/15.9.1965. He was survived by his widow Kartar Kaur defendant-respondent 9, one son Atma Singh defendant- respondent 10 and five daughters defendant-respondents 11 to 15, namely, Balkar Kaur, Piar Kaur, Amar Kaur, Balbir Kaur and Mohinder Kaur. Plaintiff- respondent 1 Jaswant Singh (now represented by his legal representatives) is the husband of Balkar Kaur daughter of Pala Singh whose estate is the subject-matter of litigation in the instant appeal. It is further pertinent to point out that Kartar Singh defendant-appellant is the husband of Smt. Amar Kaur who is defendant-respondent 13 in the instant appeal. The whole controversy in this case relates to the will dated 9.9.1965 Ex. P-1 set up by plaintiff-respondent 1 and the will dated 5.8.1963 Ex. D-1. The controversy was set in motion by filing Civil Suit No. 199 dated 14.9.1977 by plaintiff- respondent 1 for possession of land measuring 80 Kanlas 12 Marlas situated in Village Machhrala, Tehsil Batala. The claim was founded on registered will dated 9.9.1965 and the date of death of Pala Singh also became controversial as it was alleged by plaintiff-respondent 1 that he had died on 15.9.1965 and the defendant-appellant took the stand that the date of death is 7.9.1965. The defendant-appellant placed reliance on a registered will dated 5.8.1963 alleged to have been executed in their favour. The issues with regard to period of limitation was also raised along with another question as to whether the judgment and decree passed in Civil Suit No. 143 of 1974 filed by Amar kaur, Balbir Kaur and Mohinder Kaur defendant-respondents 13 to 15 was binding on the defendant-respondents 13 to 15 was binding on the defendant-appellant who had appeared as general power of attorney of defendant-respondents 13 to 15.

(3.) IN so far as the Will dated 5.8.1963 Ex. D-1 propounded by the defendant- appellant was concerned, the learned District Judge found that the document was surrounded by numerous suspicious circumstances. The first suspicious circumstance found by the learned District Judge is that Pala Singh had never lived at Village Kharal. The attesting witnesses belong to village Kharal. The testator had been residing at Village Khairabad where he died. The attesting witness of the will Ex. D-1 could not be considered as a co-villager of the testator and the defendant-appellant who set up the will hails from Village Kharal. The whole property of Pala Singh is stated to be situated at Village Kharal and the defendant-appellant is intended to be nominated and constituted to be the sole heir of Pala Singh to the exclusion of other heirs. It is factually incorrect. Pala Singh owned property at other places. No reference has been made to the property left by Pala Singh situated at Village Jallowal. Pala Singh has appointed and constituted the defendant-appellant as his general attorney. However, the defendant-appellant abused his authority and made certain transfers of land belonging to Pala Singh which led to the revocation of his general power of attorney vide revocation deed dated 1.2.1965 registered on 2.2.1965. It is recited in the deed that Pala Singh is left with no faith in defendant-appellant Kartar Singh as he had been squandering away his property. On account of the conduct of defendant- appellant, there was no reason for Pala Singh to continue or execute the will dated 5.8.1963 Ex. D-1 alleged to be executed in favour of the defendant- appellant. It is further clear that the will Ex. D-1 was suppressed by the defendant-appellant when he was pursuing the civil suit in the Courts at Hoshiarpur and the plaintiff-respondent 1 who was defending that suit had set up the will Ex. P-1 dated 9.9.1965. It was obligatory on the part of defendant-appellant 2 to make a reference to the will Ex. D-1 when he filed replication. The scribe of the will was neither known to the testator nor to the attesting witness. On the basis of aforementioned suspicious circumstances the will Ex. D-1 has been found to be a fictitious document.