MOHINDER KAUR Vs. WASSAN SINGH KUNDAN SINGH

JUDGEMENT

(1.) THE litigation between the parties, out of which this second appeal has arisen, concerns the inheritance of Kundan Singh, deceased. On April 13, 1957, he executed a will, Ex. P-4, of his property, movable and immovable, in favour of his two sons Wassan Singh, plaintiff, and Gurdial Singh, deceased. The will was scribed by Jaswant Singh and attested by two panchas of the village, namely, ujagar Singh and Dayal Singh. The evidence of these witnesses, which is not open to any criticism whatsoever, has been that the testator was in a disposing mind, when the will was read over to him he understood it, and, while he thumb-marked the will in their presence, they signed it in his presence. The genuineness of the thumb-mark on the will has never been questioned by anybody during the whole of the proceedings. The evidence or the witnesses led by the contesting defendants, who in the trial Court were the two daughters and widow of Kundan singh. deceased, was of witnesses from different places and witnesses were found not reliable by the trial Court, as also by the first appellate Court, and so also by my learned brother, Narula J. , when he heard this second appeal in the beginning the two Courts below have held the will to have been duly proved and genuine. A few suspicions circumstances of no substance were referred to before those Courts but were found bv the same not in the least derogating from the veracity of the testimony of the scribe and the two attesting witnesses of the will and from the genuineness of the will. My learned brother has agreed in his order of reference with such an appraisal of the testimony on the record. So the will of Kundan singh, deceased, has been duly proved and its genuineness has also been proved. It is in the wake of this that next to no argument has been urged at the hearing of this second appeal on this aspect of the matter. In other words, the due execution of the will and its genuineness has not been a matter of controversy at the hearing of this appeal before this Bench.

(2.) IN the will Kundan Singh, deceased, recited that he had two sons, two daughters, and his wife. He then said that he had incurred expenses in connection with the marriages of his daughters and had already given them sufficient amount of property. Then he said that he had given property in the shape of cash and ornaments and the like to his wife. However, because of the new law of succession obviously referring to the Hindu Succession Act, 1956 (Act 30 of 1956), which came into force on June 17, 1956, he said, his daughters and wife might start litigation with his sons in regard to his inheritance, so he proceeded to bequeath the whole of his movable and immov-able property to his two sons. The Courts below nave taken that he did so in fifty fifty shares, and though, if both of his sons were alive and claiming under this will, that might be the effect but no such thing is stated in the will itself. All that is said in the will is that the testator was bequeathing his movable and Immovable property to his two sons and he has taken particular care to repeat at the end of the will that he was excluding his daughters and wife from any share of his property after his death.

(3.) THE testator's second son, Gurdial Singh, murdered him on May 24, 1962, some five years after the execution of the will. When the suit giving rise to this second appeal was instituted by his son, Wassan Singh, plaintiff, to obtain declaration that under the will, Exhibit P-4, he alone was entitled to the whole of the inheritance left by his deceased father, Gurdial Singh was under trial. But he had been convicted by the time there was an appeal in the first appellate Court, after the trial Court had decreed the suit of Wassan Singh, plaintiff, by the two daughters and widow of the testator. In that appeal Gurdial Singh the second son of the testator, was shown as a party respondent. The death sentence passed on Gurdial singh by the Sessions Court was confirmed in the High Court and consequently gurdial Singh was hanged before the decision of the first appeal by the daughters and the widow of the testator. So Gurdial Singh's widow Mohindar Kaur was impleaded as is legal representative in the first appeal. The learned Judge in the first appeal affirmed the decree of the trial Court and hence. dismissed the appeal. The two Courts below proceeded on the basis that the will. Exhibit P-4, was the genuine will of Kundan Singh. deceased, and that as one of his sons, Gurdial singh, had murdered him, he could not inherit under the will so that the whole of the property to which the will relates passes to his surviving son, Wassan Singh, plaintiff, as the female heirs such as daughters and widow have been expressly excluded from inheritance by the terms of the testator's will. The claim of the wife of Gurdial Singh, murderer, was also denied.