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TMI Blog1976 (10) TMI 161X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a son Gurbachana Singh. Gurbachan died during the life-time of his father Gobinder Singh, leaving behind his widow Joginder Kaur who died in 1971. Gurbachan Singh and Joginder Kaur gave birth to two children, a son Surjit Inder Singh and a daughter Palvinder Kaur. Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons. On May 22, 1956 which was about a year and a half after the death of Sardar Gobinder Singh, his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance @ Rs. 1000/- per month or in the alternative a one-half share in the properties left by her husband. Her co-wife s grandson Surjit Inder Singh was the defendant to the suit. He filed his written statement on January 5, 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate. On these pleadings the trial court struck issues in the suit on February 1, 1957. At the end of her evidence on August 17, 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one-half share in her husband s estate. The hearing of the suit was adjourned by the learned trial Judge to August 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the custom by .which the parties were governed, a sonless widow was entitled to a one-half share in the estate of her husband, as an equal sharer with the male progeny born of a co-wife. That the parties were governed in this matter by customary law was openly conceded in the trial court, the point of dispute being restricted on this point to the question as to what in fact was the custom. It was common ground before us that if the will goes, the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh. Aggrieved by the judgment of the trial court, the defendant Surjit Inder Singh filed First Appeal No. 315 of 1964 in the High Court of Punjab and Haryana. During the pendency of the appeal, the defendant died on October 22, 1968 and his widow Amrit Kaur, her three sons, and his sister Palvinder Kaur were brought on the record as his legal representatives. They are respondents 1 to 5 to this appeal. By its judgment dated March 12, 1975 the High Court set aside the judgment the trial court, allowed the appeal and dismissed the plaintiff s suit. The High Court has held, or appears to have held, that the will was duly established. Since the wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. 3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal to the sale price. The amount was to be deposited in approved securities, Dalip Kaur being entitled only to the interest thereon. On her demise, the house or the amount in deposit was to vest absolutely in the defendant. Paragraph 5gave to Dalip Kaur the right of residence in a part of the house. at Sangrur, paragraph 6 gave to her the right to use during her life-time the jewellery and ornaments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life-interest. Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them, she would be entitled to receive from him an annual sum. of Rs. 5,000 for her maintenance. This amount was to constitute a charge on a land at Karmsar, District Lyallpur. Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898, that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia, that after Jaswant Kaur s marriage Gulab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh. The will is alleged to have been made on November 26, 1945 but it did not see the light of day till August 20, 1957. Being an ambulatory document, it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15, 1954. But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legatee himself, for over 21/2 years after the testator s death. The testator had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954, no one bothered to go through his papers which would reflect the state and extent of his property. The explanation of the defendant that he hit upon the will by chance while going through some papers of his grand-father is therefore patently lame and unacceptable. There is an ominous significance in the date on which the defendant ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for production of the will nor in his evidence did he give the haziest details of the discovery. We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will. The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer. No evidence at all has been led as to who drafted the will and who typed it out. The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant. The will has been attested by two persons called Dinshaw H.M. Framjee and Pali Ram. It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document. Dinshaw Framjee was a trader in Simla and Pali Ram was his servant. Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla, that he did not know for how long he was staying in Simla before the attestation of the will, that he was unable to state whether he had met Gobinder Singh after the attestat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er that will. The will is unnatural and unfair in more than one respect. At the time that the will is alleged to have been made, the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter-in-law Joginder Kaur, being the widow of the testator s predeceased son Gurbachan Singh who was also born of Dalip Kaur. Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur. The will contains not even a fleeting reference either to the testator s daughter or the widowed daughter-in-law or to the granddaughter Palvinder Kaur. It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them. If that be so, it was usually unnecessary to refer to the appellant Jaswant Kaur who also, it is common ground, has been married happily. The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason; that She had brought disgrace to the Sibia family and that her behaviour was such as would not even bear mention in the will. Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e will was published, Gulab Kaur and her daughter would have created some trouble. This argument, in the context of the various facts adverted to above, has to be rejected. The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defendant and from the executors, one of whom was highly placed and the other of whom is the defendant s father-in-law. Frankly, though with respect, it surprises us that the High Court should have accepted the will as genuine. It observes: It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will. We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will. But to say that there is nothing in the case to excite the court s suspicion and to accept the will as genuine on that premise is wholly ununderstandable. The High Court does not refer to a single circumstance out of the many that we have discussed and the operativ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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