HARDIAL KAUR Vs. HAZUR SINGH

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment of the learned Additional District Judge, Faridkot dated 28. 9. 1984 in Civil Appeal No. 275 of 1982.

(2.) THE defendant is the appellant.

(3.) THE only point that is to be decided in this appeal is whether the Will set up by Hardial Kaur dated 20. 2. 1977 is proved to have been validly executed by Kapur Singh. There cannot by any dispute that the burden to prove that the Will has been executed by Kapur Singh is on the propounder i. e. Hardial Kaur, appellant. Admittedly, the Will was executed after the deceased was admitted to Dr. Goyal's Hospital. It is also in evidence that after the execution of the Will and that on the next date i. e. 1. 3. 1977 the deceased was removed to Ludhiana where he died on 6. 3. 1977. According to the plaintiffs-respondents, Kapur Singh was not in sound and disposing state of mind at the time or the execution 0f the alleged will as he was seriously ill. The Will was attested by Jugraj Singh and Nidhan Singh, who were examined as PW-2 and DW-3 respectively, DW-3, who was examined by the appellant deposed that the Will was produced before the Sub Registrar at his office. He further deposed that the Will was scribed at the clinic of Dr. Goyal as Kapur Singh was suffering from ailment. The evidence of this witness was disbelieved by the Courts below on the ground that, in the earlier suit filed by the appellant against him, he stated that the Will was presented before the Sub Registrar at his office. In the evidence in this suit, he stated that Dr. Goyal was not present at the time when the Will was drawn up, whereas in the earlier suit, he stated that Dr. Goyal declared that the testator is fit to execute the Will. In view of the contradictory stand taken by DW-3, both the Courts below did not place any reliance on his evidence. The other attestor of the Will namely Jugraj Singh was examined by the plaintiffs as PW-2. According to him, Kapur Singh remained ill for two months prior to death and he was admitted in Dr. Goyal's Hospital and he visited Dr. Goyal's Hospital two or three times to see Kapur Singh, but no Will was executed in his presence. He further deposed that Hardial Kaur and her brother Harbans Singh were sitting in the Hospital and they got the thumb impressions of Kapur Singh on white papers. He categorically stated that he did not attest the document in the presence of Kapur Singh. The appellant has also not examined Dr. Goyal in whose Hospital the Will was said to been executed. In the Death certificate issued by the Ludhiana Hospital, the cause of death was shown due to Cardio Respiratory Arrest and the disease has been shown as Ruptured Amoch Alatu. Thus, it is clear that the deceased was suffering from serious ailment before his death. The Will was said to have been executed on 28. 2. 1977 while Kapur Singh died at Ludhiana Hospital on 6. 3. 1977. The evidence of Jugraj Singh, who was examined as PW-2 clearly shows that the testator was not in sound and disposing state of mind.