Rajesh Bindal, J.@mdashOne of the defendants is before this court impugning the judgments and decrees of the courts below, whereby the suit filed by respondent No. 1-plaintiff for declaration to the effect that he is co-sharer in the property in dispute was decreed.
2. In the case in hand, estate of Nasib Kaur is in question. She died on 5.6.1993 survived by three sons and three daughters. Prior to her death, the entire property owned by her husband-Chhaja Singh was divided amongst all the legal heirs, namely, Nasib Kaur, three sons and three daughters equally, i.e., 1/7th share each. In the case in hand, the issue is regarding 1/7th share of the property inherited by Nasib Kaur. In the suit filed by respondent No. 1-plaintiff on 19.7.2000, it was claimed that he being one of the legal heirs is entitled to 1/6th share of the property left by Nasib Kaur-deceased, she being survived by three sons and three daughters. The suit was contested by the appellant only as Amarjit Singh-defendant, other brother of the appellant, was ex-parte. The daughters had not been impleaded as party. In his defence, the appellant pleaded that the entire property standing in the name of Nasib Kaur-deceased was bequeathed by her vide registered Will dated 4.12.1992 executed in favour of the appellant and his brother-Amarjit Singh. Both the courts below found that the alleged Will produced by the appellant was surrounded by suspicious circumstances, hence, the same was rejected and the property was directed to be divided equally amongst all the legal heirs.
3. Learned counsel for the appellant, while assailing the findings recorded by both the courts below, submitted that Nasib Kaur was of sound mind at the time of execution of the Will. She had clearly mentioned in the Will dated 4.12.1992 that respondent No. 1-plaintiff had been living separately since long. He has separate source of income. He will not be entitled to any share in the property owned by her. The entire property will be divided amongst the appellant and Amarjit Singh, as they had been looking after her well. He further submitted that in the Will, it was clearly stated that out of three daughters, two were already married, on whose marriage sufficient amount has already been spent, whereas one of the daughters is unmarried. Two sons, in whose favour the entire property had been bequeathed by Nasib Kaur-deceased, will be responsible to perform the marriage of their third sister. Further, learned counsel submitted that the Will in question was a registered document. The same was required to be accepted as such. For getting the Will registered, Nasib Kaur had gone to Tehsil. The Will was scribed by Shangara Ram, Deed Writer. It was witnessed by Bikkar Singh and Gurmit Singh. The appellant was not able to produce either of the two witnesses to the Will as Bikkar Singh died and Gurmit Singh was in a state where he could not make a statement. Son of Bikkar Singh was produced, who identified the signatures of his father on the Will.
4. While impugning the findings recorded by the courts below, learned counsel for the appellant submitted that original Will could not be produced as the same was not traceable. It was not handed over by deceased-Nasib Kaur to the appellant. Certified copy thereof was produced in court. The witness from the office of Registrar was summoned, who had proved the fact that certified copy produced by the appellant was as per the record. That was sufficient proof of the Will. Thumb mark of the executant of the Will was duly proved by the appellant while appearing as DW2. Learned counsel further submitted that in the circumstances, the presumption available u/s 60 of the Registration Act, 1908 was available. For proving a Will, totality of the circumstances has to be seen and not in isolation.
5. On the other hand, learned counsel for respondent No. 1-plaintiff submitted that nothing has come on record as to how the appellant came in knowledge of the Will once it is admitted that the same was not handed over to him by Nasib Kaur-deceased. It is not pleaded or otherwise the case is not that he had accompanied Nasib Kaur at the time of execution of the Will. It was only when question was put to him in his cross-examination that he admitted accompanying Nasib Kaur at the time of execution of the Will. He was an interested party. The scribe of the Will, who was one of the important witnesses considering the fact that both the witnesses to the Will had not appeared in the witness box, was not examined. Statement of son of the witness to the Will, who expired, was also not relevant as he was not merely proving a document. Due execution of the Will was to be seen. The onus to prove the Will was on the appellant as he had projected the same. Having failed, the suit filed by respondent No. 1-plaintiff was decreed. He further submitted that though in the Will, at one place, it was mentioned that Nasib Kaur-deceased had three daughters and all are married, however, in the next line, it was mentioned that one of the daughters was unmarried and the beneficiaries of the Will were to perform her marriage, but nothing has been produced on record by them as to whether she was married, if yes, when and by whom. It was further submitted that both the courts below have recorded a finding of fact regarding the Will being surrounded by suspicious circumstances, which does not call for any interference by this court. The appeal deserves to be dismissed.
6. Heard learned counsel for the parties and perused the paper book.
7. As has already been noticed above, the issue under consideration is regarding inheritance of the estate of Nasib Kaur-deceased. She was survived by three sons and three daughters. Respondent No. 1-plaintiff filed a suit claiming joint ownership of the entire property to the extent of 1/6th share. The appellant and Amarjit Singh were impleaded as defendants in the suit. Amarjit Singh was ex-parte. The appellant in defence projected a Will dated 4.12.1992 executed by Nasib Kaur-deceased in favour of Amarjit Singh and the appellant, namely, Sarabjit Singh. She died on 5.6.1993. Both the courts below found that the Will was surrounded by suspicious circumstances. I do not find that the appellant has been able to make out a case for interference in the judgments and decrees of the courts below. The issue is as to whether the Will was surrounded by suspicious circumstances or not. There are many aspects for that. The original Will was not produced by the appellant before the court. His own pleaded case is not that he had accompanied Nasib Kaur at the time of execution of the Will, rather, in his cross-examination, he stated that he was present at the time of execution of the Will. That create suspicion as he was one of the beneficiaries and admittedly Nasib Kaur was living with him and Amarjit Singh. Further, if Nasib Kaur-deceased was of sound mind and the Will had been read over to her before she put her thumb mark thereon, the same would not have contained wrong facts regarding her daughter. Admittedly, she had three daughters. At one place in the Will, it is mentioned that all three are married, whereas in the next line it is mentioned that only two of them were married and one is yet to be married. Amarjit Singh and Sarabjit Singh were given the responsibility to perform her marriage.
8. Learned counsel has not referred to any material on record to show as to when third sister of the appellant was married and who performed the same. None of the two witnesses to the Will was produced. May be for good reason as one of them had died and the other was claimed to be not in the state of mind to get his statement recorded, but still the appellant failed to produce the important witness, namely, scribe of the Will-Shangara Ram, Deed Writer. His register has not been produced.
9. In the light of the aforesaid circumstances and other material on record, which has aptly been discussed by both the courts below, in my opinion, the finding of fact recorded by both the courts below that the Will in question was surrounded by suspicious circumstances does not suffer from any illegality. No substantial question of law arises.
10. Accordingly, the appeal is dismissed. Consequently, the accompanying applications are also dismissed.
