KARTAR KAUR AND ANR.versusMILKHO AND ORS.

                      KARTAR KAUR AND ANR.                                  A
                                    v.
                         MILKHO AND ORS.

                          OCTOBER 29, 1996

         [K. RAMASWAMY AND K. VENKATASWAMI, JJ.]                            B

      Indian Succession Act, 1925: Section 63.

        Will-Genuineness of-Challenged-Testator, by registered Will,
bequeathed his property in favour of his sister depriving his widow and C
daughter in toto--Testator conveyed property in favour of his sister's son
 by subsequent sale deeds-Trial Court found Will was shrouded with several
suspicious circumstances and that sale deeds were handiwork ofdefendants
as part of conspiracy-Trial court decreed plaintiffs suit for declaration
that they were joint owners of property-First Appellate Court without
dealing with some ofthe important suspicious circumstances which touched D
root ofthe matter, reversedjudgment and decree oftrial court-High Court
dismissed second appeal in limine-On appeal Held: Propounder failed to
dispel suspicious circumstances beyond reasonable doubt and trial court
justified in doubting genuineness of Will-Both Will as well as sale deeds
formed part of conspiracy hatched by defendants to deprive plaintiffs of
 their rightful succession-Though trial court in absence ofprayer for setting E
 aside sale deeds did not grant same, but technicalities could not stand in
 the way ofrendering complete justice to parties while excersingjurisdiction
 under Arts. 136 and 142 by Supreme Court-Accordingly, Will and sale
 deeds not valid and binding on plaintiffs-Constitution of India, 1950,
 Arts. 136 and 142.
                                                                            F
      The testator, by a registered Will, bequeathed his property in
favour of his sister {Respondent No. I) depriving his widow and
daughter {appellants) in toto. Subsequently, the testator executed sale
deeds conveying the property in favour of his sister's son {Respondent
No. 2). The appellants filed a suit for a declaration that they were the    G
joint owners of the property in question. The trial court found that
the sale deeds were !Jie handiwork of the respondents as part of the
conspiracy to deprive the appellants of their rightful succession.
Accordingly, the trial court decreed the appellant's suit. However,
the trial court in the absence of a prayer for setting aside the sale
deeds did not grant the same. The first Appellate Court without dealing      H
                                    121


                                                                    •
    122                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A with some of the important suspicious circumstances which touched
    the root of the matter, reversed the judgment and decree of the trial
    court. The High Court dismissed the second appeal in limine. Being
    aggrieved the appellants preferred the present appeal.

          Allowing the appeal, this Court
B
         HELD : 1.1 The trial Court was justified in doubting the
    genuineness of the Will and rendering a finding that propounder has
    not dispelled the suspicious circumstances beyond a reasonable doubt.
    Both the Will as well as the sale deeds formed part of a conspiracy
    hatched by the defendants to deprive the appellants of their rightful
C   succession to the estate of the deceased. [128-F, 129-E]

         Bhagwan Kaur v. Kartar Kaur, [1994] 5 SCC 135, Smt. Jaswant
    Kaurv. Smt. Amrit Kaur and Ors., AIR(l977) SC 74 and H Venkatacha/a
    Iyengar v. B.N Thimmajamma and Ors., [1959] Supp. I SCR 426, relied
D   on.

         Bindeshri Prasad and Anr. v. Mst. Baisakhi Bibi and Ors., AIR
    (1920) PC 7~, referred to.

          1.2. Though the trial court in the absence of a prayer for setting
E   aside the sale deeds, did not grant the same, but technicalities cannot
    stand in the way of rendering complete justice to the parties while
    exercising jurisdiction under Articles 136 and 142 of the Constitution
    of India. Accordingly, the Will and the two sale deeds executed by the
    deceased in favour of Respondent No. 2 are not valid and binding on
F   the appellants. [129-F, H]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 13390 of
    1996.

G        From the Judgment and Order dated 14.1.94 of the Punjab and
    Haryana High Court in R.S.A. No. 1638 of 1993

            B.S. Malik and Mahabir Singh for the Appellants.

            D.V. Sehgal, A.V. Palli, Mrs. Rekha Palli and Atul Sharma for the
H Respondents.
           KARTAR KAUR v. MILKHO [VENKATASWAMI, J.)                         123


      The Judgment of the Court was delivered by                                   A
      VENKATASWAMI. J. Leave granted.

      Heard counsel on both sides at length.

      Even at the outset we would like to express our unhappiness over the         B
disposal of the second appeal in two words 'No merit. Dismissed' by the
Punjab and Haryana High Court especially when the controversy related
to the genuineness of a will which is not a mere question of fact, but a
mixed question of fact and law. The High Court should have gone into the
matter in detail and its failure to do so made us to go through the entire
records by ourselves.                                                              C

       The appellants are the plaintiffs in a suit for declaration that they are
the joint owners in respect of I /3rd share of the land measuring in all 429
kanal 7 marlas as entered in the jan,abandi for the year 1983-84 situated in
the area of village Kahneke. The plaintiffs also prayed for a further              D
declaration that mutation No. 3030 dated 2.6.1986 sanctioned by the
Assistant Collector I st grade, Barnala was illegal and ineffective against
the rights of the plaintiffs and consequently, relief sought for was to restrain
the first defendant in the suit (the first respondent herein) from alienating
the suit land on the strength of mutation No. 3030.
                                                                                   E
      The admitted facts are that the husband of the first appellant, namely,
Atma Singh was entitled to I/3rd share of the total suit lands. The balance
2/3 belongs to his two brothers, namely, respondents 3 and 4 herein. The
second appellant is the daughter of first appellant through the said Atma
Singh. It appears that the appellants were living separately from Atma             F
Singh. It is claimed by the first respondent who is the sister of Atma
Singh that the said Atma Singh by a registered will dated June 14, 1979
bequeathed all his pr-0perties in her favour depriving the appellants in
toto. Naturally, the appellants moved the trial court challenging the
genuineness of the said wiJJ. It is specifically challenged that the said
Atma Singh being an illiterate ·person, the will was made by impersonation         G
and the alleged thumb impression was not that of said Atma Singh. The
said Atma Singh died 7 years after the will. In resisting the suit, the first
respondent claimed that the will was genuine one and the deceased Atma
Singh out of love and affection and in view of services rendered by her
has bequeathed his estate in preference to his wife and daughter. It is also
brought on record that after the execution of the said wiJI, the said Atma         H
    124                      SUPREME COURT REPORTS [1996] SUPP. 8 S.CR.


A Singh has said to have executed two sale deeds in favour of the second
    respondent who is none other than the son of the first respondent when he
    was a minor. It is further claimed by the first respondent that her brother
    Atma Singh brought up the second respondent as his adopted son and the
    second respondent lived with Atma Singh from his childhood.

B          The first appellant as first plaintiff apart from examining herself as
    a witness also examined two other independent witnesses to support her
    case that the will was forged one. It is an admitted fact that one
    of the attesting witnesses was the fourth respondent herein (brother
    of the testator) and another attestor was from different village and cousin
    of the first respondent. It is also not clear when the genuineness of the will
C   was seriously challenged why the original will was not produced, but only
    the certified copy was marked as D.W.6-A. Likewise the sale deeds in
    favour of the second respondent also were not produced in original, but
    certified copies alone were rnarked on the side of defendants.

          The learned trial Judge who had the benefit of observing the
D demeanour of the witnesses found that the propounder has not satisfactorily
  discharged the onus of proving the genuineness of the will especially when
  the will was attached with number of suspicious circumstances coupled
  with an unnatural bequest. The trial court found that one of the attesting
  witnesses, namely the cousin of the first respondent was not from the
  same village in which the testator was living. This fact assumed importance
  while noticing the attesting witnesses to sale deeds who belong not only to
  the same village, but also living nearer to the testator. That made the trial
  court to think that the said attestor was deliberately procured. The trial
  court also pointed out that D. W. 6, the attesting witness hailing from
  different village while giving evidence clearly remembered the fact that
  he came to the petition writer straightaway from his village and also gave
  the time as 11.00 A.M. when the will was written, could not remember
  even roughly the year and month or the date of the will. Likewise he
  could not disclose the names of persons who joined the last rites of Atma
   Singh although he asserted that the said rites of the deceased were not
G performed by his widow and daughter, but were performed by his sister,
   the first respondent herein. The trial court also noticed that the first
   respondent was married 25 years ago in a neighbouring village and she
   has got 4 children and her husband living and that being the position, the
   question of her rendering any service to Atma Singh was not believable.
   Another strong circumstance pointed out by the trial court to doubt the
H genuineness of the will was that after the execution of the will and having
                KARTAR KAUR v. MILKHO [VENKATASWAMI,J.]                       125


     regard to the claim of the propounder that the testator brought up her son       A
     as his own son could not have sold the lands under two sale deeds for
     consideration and still further if at all he had decided to deprive his wife
     and daughter succeeding to his estate, he could have in normal course
     bequeathed the properties in favour of the second respondent and not in
     favour of the first respondent. The sale deeds in favour of the second
     respondent, according to the trial court, were the handiwork of defendants       B
     who have prepared the fictitious will of Atma Singh and subsequently
     becoming apprehensive that the will may not be upheld as a genuine one
     and the properties. conveyed under the sale deed could at least be saved.


           One other circumstances brought to our notice by the learned counsel
     for the appellant was that in the will the name of the daughter was given        C
     by the testator as Balwinder Kaur whereas her real name is Karamjeet
     Kaur. If really Atma Singh had given instructions to prepare the will, he
     could not have given the name of his daughter wrongly and there is nothing
     in the records to show that the second appellant was also known as
     Balwinder Kaur. Taking all these factors into consideration, the trial court     D
     decreed the plaintiffs, suit declaring that the plaintiffs are the true owners
     of I/3rd share in the suit land being the share of Atma Singh and the
     mutation No. 3030 dated 2.6.1986 was null and void and ineffective against
     the rights of the plaintiffs in the suit land. The trial court also restrained
     the defendants from alienating the suit land, namety I/3rd share of the
     plaintiffs.                                                                      E

            The aggrieved respondents Nos. l and 2 preferred the appeal to the
      Additional District Judge, Barnala who has reversed the judgment and
      decree of the trial court after meeting some of the circumstances pointed
      out by the trial court to suspect the genuineness of the will. The lower
      Appellate Court has not dealt with all the aspects pointed out by the trial     F
     .court while reversing the judgment.

          The important aspect that has been dealt with by the trial court for
     doubting the genuineness of the will was that propounder had not established
     beyond reasonable doubt that the disputed thumb impression of Atma Singh         G
..   was really that of Atma Singh by comparing the same with his standard
     thumb impression or atleast with the thumb impressions appearing on the
     two sale deeds said to have been executed by the same Atma Singh in
     favour of second respondent herein. The Trial Court held as follows:

               "Merely because the will is a registered document is not               H
    126                    SUPREMECOURTREPORTS [1996] SUPP. 8 S.CR.


A             sufficient to hold the same to be a genuine one. In this case the
              same had not been executed by Atma Singh as the defendants
              have not proved that it bears the thumb impression of Atma
              Singh, how it would have any effect even if it was got registered
              five years prior to the death of Atma Singh. D.W.11 Milkho
              does not know as to when Atma Singh had executed the will in
8             her favour but to the utter surprise the mutation regarding the
              inheritance of Atma Singh was got entered only on 25.12.1985
              i.e., only three days after the death of Atma Singh, as is clear
              from the copy of mutation Ex. D.5 and Milkho produced the
              will before Assistant Collector II grade, Tapa on 23.1.1986."

C        This aspect goes to the root of the matter; nonetheless this has not
    been touched by the lower Appellate Court.

           One other aspect connected with this pointed out by the trial court
    was regarding the conspiracy suggested in the cross examination which
    has been initially accepted, but subsequently denied by the witnesses. The
D   trial court observed as follows:-

              ''D.W. 6 Bhag Singh could not deny the question put to him
              that he and Mal Singh had talked with the husband of Milkho
              that they would prepare a will impersonating Atma Singh by
              producing some other person and that when the land is mutated
E             in favour of Milkho, they would get the same transferred in
              their favour and only after having expressed ignorance to the
              whole question deposed again that it is not correct. In the way,
              I find that the will is shrouded with suspicious circumstances
              which have not been dispelled by the propounder of the same."
F
          This has not been referred to at all by the lower Appellate Court.

           Yet another important aspect ignored by the lower Appellate Court
    relates to the following observations of the Trial Court:
G
              "The ultimate beneficiary of the will is not defendant Milkho,
              rather it is the defendants Mal Singh and Gurdev Singh who
              have been reaping the fruit of the land in suit. It has been stated
              by DW I 2 Gurudev Singh that Darshan Singh has come into
              possession of the land and which is cultivated by him on a Theka/
H
               KART AR KAUR v. MILKHO [VENKA TASWAMI, J.]                        127


               share crop basis. DW 7 Mal Singh also stated that Darshan Singh          A
               is in possession of the house and land of Atma Singh. It has
               nowhere been stated by the witness that his brother cultivates
               the land on behalf of Milkho on a share crop basis, Gurdev
               Singh cultivating it for himself."

           Yet other important circumstances are that it was claimed that the           B
    testator had brought up the second respondent as his adopted son. If that
    be so why should he not execute the will in his favour as adopted son and
    an adoption deed executed and registered? Instead why he had preferred
    to execute the will in favour of his sister, first respondent? Having executed
    the will why did he execute sale deeds in favour of second respondent, a
    minor? Why did he not make a reference to the registered will in the sale           C
    deeds subsequently executed? These are all tell tale crucial circumstance
    casting unchangeable clouds hovering around the genuineness of the will
    and the burden is always on the propounder to explain and prove to satisfy
    the conscience of the court but miserably failed to do so.



-         This Court in Bhagwan Kaur v. Kartar Kaur reported in [1994] 5
    sec 135 has observed that 'decision on due execution of will, strictly
    speaking, is not pri1narily arriving at a finding of fact, as it has an admixture
                                                                                        D

    of law due to the specific requirements of Section 63 of the Indian
    Succession Act, 1925 towards due execution.'
                                                                                        E
          In Bindeshri Prasad and another v. Mst Baisakha Bibi and others
    reported in AIR(1920) PC 70 it has been held 'in a suit by heirs of a
    deceased person to declare that the alleged will of the deceased whereby
    they are deprived of the succession to his estate, is ~ forgery the burden of
    establishing without reasonable doubt that the will propounded is of the
    deceased is upon those propounding the will.'                                       F

           In Smt. Jaswant Kaur v. Smt. Amr it Kaur and others AIR( 1977) SC
    74, this Court held that 'in cases where the execution ofa will is shrouded
    in suspicion, its proof ceases to be a simple lis between the plaintiff and
    the defendant. What, generally, is an adversary proceeding becomes in               G
    such cases a matter of the court's conscience and then the true question
    which arises for concideration is whether the evidence led by the propounder
    of the will is such as to satisfy the conscience of the court that the will was
    duly executed by the testator. It is impossible to reach satisfaction unless
    the party which sets up the will offers a cogent and convincing explanation
    of the suspicious circumstances surrounding the making of the will.'                H
    128                      SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A        In H Venkatachala Iyengarv. B.N Thimmajamma and others, [1959)
    Suppl.I SCR 426 this Court observed as follows:-


              "The mode of proving a will docs not ordinarily differ from
              that of proving any other document except as to the special
              requirement of attestation prescribed in the case of a will by
B             s.63 of the Indian Succession Act. Proof in either case cannot
              be mathematically precise and certain and so the test should be
              one of satisfaction of a prudent mind in such matters. The onus
              must be on the propounder and in absence of suspicious
              circumstances surrounding the execution of the will, proof of
              testamentary capacity and signature of the testator as required
c             by law may be sufficient to discharge the onus.           ·

              Where, however, there are suspicious circumstances, the onus
              would be on the propounder to explain them to the satisfaction
              of the Court before the will can be accepted as genuine. If the
              caveator alleges undue influence, fraud or coercion the onus
D             will be on him to prove the same. Where are no such pleas but
              the circumstances give rise to such doubts, it is for the propounder
              to satisfy the conscience of the Court.

              What are suspicious circumstances must be judged in the facts
E             and circumstances of each particular case. If the propounder
              takes a prominent part in the execution of the will which confers
              substantial benefits on him, that itself is a suspicious circumstance
              attending the execution of the will and in appreciating the
              evidence in such a case, the court should proceed with an open
              but nevertheless vigilant and cautious mind."
F
           In the light of these settled principles, we have carefully gone through
    the evidence and we find that the trial court was justified in doubting the
    genu;neness of the will and rendering a finding that propounder has not
    dispelled the suspicious circumstances beyond reasonable doubt. As pointed
G   out earlier, the lower Appellate Court while reversing the judgment of the
    trial court has simply overlooked or ignored many important aspects dealt
    with by the trial court. Unfortunately, the High Court without going through
    the matter dismissed the Second Appeal in two words.

          So far as the alienations by Atma Singh in favour of the second
H respondent are concerned, we have already noticed that the trial court on
           KARTARKAURv. MILKHO[VENKATASWAMl,J.]                          129


evidence has found that the sale deeds were the handiwork of the defendants     A
(respondents) as part of the conspiracy to deprive the appellants of their
rightful succession to Atma Ram's estate. In this connection, the trial Court
observed as follows:-

           "It only goes to show that it was the handiwork of defendants to
           have prepared a fictitious will of Atma Singh and being              B
           apprehensive that the will may not be upheld as a genuine
           document further manoeuvred to get the sale deeds executed
           regarding a substantial amount of land, i.e., 86 kanals I I marlas
           vide two different sale deeds in favour of Darshan Singh. The
           defendants kept the will in favour of a guarded secret from
           Atma Singh and that is why the same had not been got attested        C
           by an outsider i.e., a respectable of village Kahneka and only
           very close relatives of the defendant i.e., D.W.6 Bhag Singh
           and even defendant Mal Singh were made to attest the will. A
           conspiracy smacks to have been hatched by the defendants to
           grab the land of Atma Singh which would have otherwise been
           inherited by plaintiffs."                                            D

       It has also come in evidence of DWs I and 12 that the sale deeds
 were executed when the second appellant was only about five or six years
 old and that he was represented before the sub-Registrar by Gurdev Singh,
 respondent No. 3 herein. It was this Gurdev Singh, who was said to have        E
 handed over the sale consideration. Further it is seen that no mention was
 made about the alleged will in the subsequent sale deeds. All these things
 clearly go to show that ooth the will as well as the sale deeds formed part
 of a conspiracy hatched by the defendants to deprive the appellants of
their rightful succession to the estate of Atma Singh. The trial court was,
therefore, right in making such observation. However, the trial court in        F
the absence of a prayer for setting aside the sale deeds, did not grant the
 same. When these facts were pointed out to the learned Sr. ·counsel
appearing for the respondents, he submitted that no ground was taken in
the SLP concerning the sale deeds and no appeal was filed before the
lower appellate court against the adverse findings regarding the sale deeds     G
by the appellants. As we are satisfied that the sale deeds were part of the
conspiracy as mentioned above, we do not think that the technicalities can
stand in the way ofrendering complete justice to the parties while exercising
jurisdiction under Article 136 and 142 of the Constitution of India.
Accordingly, we hold that the two sale deeds in favour of the second
appellant are not valid and binding on the appellants.                          H
    130                     SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A         In the result, we hold that the alleged will said to have been executed
    by Atma Singh on 14.6. 79 is not true and binding on the appellant. Likewise
    the two sale deeds executed by Atma Singh in favour of the second
    respondent were also not valid and binding on the appellants. The appeal
    is accordingly allowed and the appellant> are entitled to 1/3 share of the
    land measuring in all 429 canals 7 marlas as entered in the jamabandi for
B   the year 1983-84 with mesne profits for 3 years prior to the date of the
    suit which the trial court should determine on an application within six
    months from the date oheceipt of the judgment above. There will be a
    decree accordingly. The appeal is allowed, however, there will no order as
    to costs.

c v.s.s.                                                       Appeal allowed.