Tejwant Singh v. Karamjit Kaur @ Kamaljit Kaur & Ors.

about ½ share of the land and four defendants sold another ½ share of the land to one Labh Singh, who has already settled his claim with the plaintiff and is not a contesting party. The total land in question is about 47 Bighas 02 Biswas, over which Harbans Singh is in possession. Surjan Singh, father of Gurbant Singh had died on 24.12.1989. The plaintiff Gurbant Singh staked his claim on the basis of the Will executed by Surjan Singh on

11.12.1989 giving equal shares to Amar Kaur, her sons and daughters. In July, 1995, Nirmal Singh, Dalip Kaur, Bant Kaur and Amar Kaur entered into agreement to sell their land to Tejwant Singh. In the year 1998, they also separately executed General Power of Attorney as well as Registered Will in favour of Tejwant Singh (applicant). As such, Tejwant Singh, on the death of Nirmal Singh on 28.07.2000, started claiming himself as legal representative and moved application for his impleadment as such, on the basis of the Will and Power of Attorney dated 16.06.1998 and agreement to sell dated 16.07.1995. The case had sufficient rounds of litigation and ultimately, the High Court directed to settle as to who are the legal representatives of Nirmal Singh. Thereafter, Amar Kaur died on 10.12.2001. The petitioner Civil Revision No.3209 of 2009 [ 3 ] again moved an application on 04.02.2004 for impleading him as legal representative, on the basis of the Will and General Power of Attorney dated 18.09.2000 as also the agreement dated 24.07.1995. On the other hand, Karamjit Kaur, widow and Harmeet Singh, minor son of Nirmal Singh claimed themselves to be the legal representatives of Nirmal Singh, being his natural heirs and moved application for this purpose on 30.8.2000. Similarly, on the death of Amar Kaur, Gurbant Singh being the son, Bant Kaur and Dalip Kaur, being the daughters and Kamaljit Kaur alias Karamjit Kaur being the widow of Nirmal Singh, Harmeet Singh being the son of Nirmal Singh (son of Amar Kaur) moved the application for impleading them as legal representatives of Amar Kaur on the basis of natural succession. Both the applications were contested by the rival parties. In the application filed on the death of Amar Kaur, the following issues were framed:- “1. Whether Amar Kaur executed a Will dated 18.9.2000 and also power of attorney in favour of applicant Tejwant Singh? OPA

2. Whether Amar Kaur executed an agreement to sell dated

24.07.1995 in favour of the applicant Tejwant Singh? OPA

3. Whether Amar Kaur has executed a Will dated

03.02.1991 in favour of Gurbant Singh and Nirmal Singh? OPR” Civil Revision No.3209 of 2009 [ 4 ] In the application filed on the death of Nirmal Singh, following issue was framed:- “1. Whether Tejwant Singh is LR of Nirmal Singh?” It is pertinent to mention here that vide order dated 12.11.2003, learned Civil Judge (Sr.Divn.), Rupnagar observed Tejwant Singh to be not the LR of Nirmal Singh on the basis of the Will dated 16.08.1998 and the said Will purported to have been executed in his favour was discarded. Since, the petitioner had not produced the agreement dated

24.07.1995/04.08.1997 and the power of attorney dated 16.06.1998, therefore, he moved the application for producing these two documents, but the Trial Court vide order dated 12.11.2003 dismissed the application, which invited the petitioner to file two revision petitions bearing Nos.491 and 492 of 2004 against the two orders dated 12.11.2003 and 21.11.2003, passed by the Court, respectively. This Court after hearing the aforesaid revision petitions allowed the same vide order dated 30.03.2005 and directed the Trial Court to consider the aforesaid two documents i.e, general power of attorney and the agreement, as referred to above, in both the cases. Since the order impleading the LRs was set aside by this Court, while accepting the revision petitions and it had ordered the Trial Court to determine the LRs by holding an enquiry, therefore, the Trial Court invited both the parties to lead evidence. I will take up the matter with regard to determining of the legal representatives of Amar Kaur and Nirmal Singh, separately, one by one. Re. Legal Representatives of Amar Kaur : Firstly, in the case of death of Amar Kaur, Tejwant Singh – Civil Revision No.3209 of 2009 [ 5 ] petitioner is stated to be a proposed vendee under the agreement dated

24.07.1995, so also her power of attorney as well as having a Will, both dated 18.9.2000, in his favour. To the contrary, Amar Kaur died leaving behind her natural heirs - (i) Gurbant Singh (son-plaintiff) (ii) Nirmal Singh (pre-deceased son-defendant No.1-now represented through Karamjit Kaur @ Kamaljit Kaur, his widow and Harmeet Singh, his son) (iii) Bant Kaur (daughter – defendant No.3) and (iv) Dalip Kaur (daughter – defendant No.4). In order to prove the issues in both the cases, applicant Tejwant Singh examined Gurmail Singh Lambardar (AW1), Sajjan Singh AW2), Bachan Singh (AW3), Dalip Kaur (AW4) and Amardeep Singh (AW5). To the contrary, respondents examined Trilochan Singh (RW1), Avtar Singh Sidhu (RW2), Gurmit Singh (RW3) and Ronak Singh (RW4). There is no denying a fact that Gurbant Singh, Bant Kaur, Dalip Kaur, Kamaljit Kaur and Harmeet Singh are the natural heirs of Amar Kaur. Notwithstanding the fact that Gurbant Singh had filed the suit against Amar Kaur, etc., yet no dispute is shown to have occurred between Amar Kaur on one side, Nirmal Singh, Dalip Kaur and Bant Kaur on the other side. There is nothing mentioned in the Will as propounded in favour of the petitioner dated 18.9.2000 about the natural legal heirs and no reasons for ignoring these natural heirs have been mentioned in the Will. It is settled by now that a Will is a solemn document for conferring the rights of a property, while deviating from the natural course of succession, but it is also equally settled that the propounder is to dispel the doubts and Civil Revision No.3209 of 2009 [ 6 ] circumstances as to why a turn for bestowing the property upon the collaterals or strangers was given by leaving the natural heirs. Ex.D4 is the copy of the Ration Card of Nirmal Singh son of Surjan Singh, in which the names of Karamjit Kaur as wife, Harmeet Singh as son and Amar Kaur as mother of Nirmal Singh have been recorded, from which an inference could be drawn that Amar Kaur had cordial relations with her son Nirmal Singh and was living with him. No such evidence has been brought on record if Amar Kaur had strained relations with her aforesaid son and daughters. It may further be observed that Nirmal Singh, pre-deceased Amar Kaur and while leaving behind his son and the widow. Therefore, it could not be expected from Amar Kaur to debar the widow and son of Nirmal Singh and bestowing the property upon a third person, who is stated to be a friendly friend, extending some financial help to the family. This is a major point, which could not be ignored while assessing the value of the Will in question. The deceased Amar Kaur being 80 years old, having feeble mind and body could be black-mailed, induced or exploited for the reason that the petitioner was extending financial help to them. The petitioner has pleaded the agreement dated 24.7.1995 executed by her six years prior to her death. Had there been any intention with regard to bestowing of the property in favour of the petitioner, then the deceased would have given it the shape of sale in favour of the petitioner instead of entering into agreement and that agreement may be in lieu of extending some financial help to the deceased. Both the witnesses to the Will appear to be highly interested to help the cause of the petitioner. Gurmail Singh Lambardar (AW1) had told a lie that he is not related to the Civil Revision No.3209 of 2009 [ 7 ] petitioner. Similarly, Sajjan Singh (AW2) has admitted that his son Parminder Singh is also a party in this case and he is the power of attorney of his son. Parminder Singh had purchased two Bighas and 12 Biswas of land, which they are cultivating for the last seven years. It is revealed from the testimony of the petitioner that the Will dated 18.9.2000 (Ex.AX) was not scribed by Mangal Sain, Deed Writer, but by one Harminder Singh. Though, the Will does not bear the name of the deed writer, but Harminder Singh has not been examined by the petitioner for the reasons best known to him. Since the Will (Ex.AX) is a registered document, therefore, it must have been entered in the register of the deed writer, before its presentation before the sub-Registrar, but neither the deed writer was examined, nor his Register was produced in the court to prove the entry of the Will, which also goes a long way to give rise to suspicion and, thus, the propounder of the Will must have dispelled the same. The petitioner appears to have not examined the deed-writer in order to conceal the truth. It is also pertinent to mention here that the petitioner himself did not appear in the witness box to support the Will and dispel the suspicious circumstances surrounding the Will, which is a major lacunae, weakening the root of the claim of the petitioner. In case of non- appearance of the party and withholding of the relevant witness/es, the Court could presume that it was so done intentionally, so as the truth may not come to fore. As such, in the instant case, adverse inference would be drawn under Section 114 of the Indian Evidence Act. Similar view was taken in Smt.Dilboo (dead) by LR's vs. Dhanraji (dead) 2000(4) RCR Civil-734. Civil Revision No.3209 of 2009 [ 8 ] Though, the petitioner claims himself to be a proposed vendee as well as the power of attorney of the deceased Amar Kaur, yet these two factors are also found missing in the Will. Though, it is mentioned in the Will that the petitioner had been extending some financial help and for that reason she was executing the Will, but it does not appeal to the reason that Amar Kaur would have bestowed her entire property in favour of the petitioner in return of the financial help. It is not mentioned in the Will, if he was extending such a great financial help, that she was not able to return or that property would not be sufficient for return of the financial help, or she could depute her sons/daughters to pay the loan extended by him, but the stranger could not be transferred the property by way of a Will by the executant (owner of sufficient property), who was under a little debt. It is not disclosed by the petitioner as to how much money, she was owing to him. The petitioner also did not produce any such document on the record, showing that Amar Kaur was under any debt and the agreement dated 24.07.1995 was only for a petty amount (Rs.2,92,000/-), which could be returned after selling a part of her property. It may further be mentioned that Amar Kaur had executed a Will dated 03.02.1991 in favour of Gurbant Singh, but the said Will does not find mention in the Will dated 18.09.2000. There is no evidence with regard to revocation of the earlier Will dated

03.02.1991. So far as the execution of the Will dated 03.02.1991 by Amar Kaur in favour of Gurbant Singh and Nirmal Singh is concerned, in order to fulfill the requirements of Section 63 of Indian Succession Act and Civil Revision No.3209 of 2009 [ 9 ] Section 68 of the Indian Evidence Act, the evidence is to be scrutinised to ascertain as to whether the legal heirs of Amar Kaur have been successful to discharge the onus to prove the due execution of the alleged will. Perusal of the alleged Will reveals that it was a settlement between Gurbant Singh, Nirmal Singh and Amar Kaur, etc., which was attested by seven persons. Tarlochan Singh (RW1) and the alleged scribe of the Will Avtar Singh Sidhu, Advocate (RW2) were examined to prove its due execution. Avtar Singh Sidhu stated that the document was scribed at the instance of Amar Kaur, Nirmal Singh and Gurbant Singh, wherein, Amar Kaur had mentioned that after her death, Gurbant Singh and Nirmal Singh shall become the owners of her share in equal shares. After scribing the same, it was read over to the parties, as well as to the attesting witnesses. He also stated that Amar Kaur after admitting its contents affixed her thumb impression on it. During cross-examination, Tarlochan Singh (RW1) stated that Amar Kaur with her own free will got executed the compromise Ex.D1 and she had stated that the said compromise may be treated as her Will. This witness also disclosed that Gurbant Singh and Nirmal Singh did not withdraw the cases pending in the Court as per the said compromise/Will Ex.D1. Avtar Singh Sidhu, Advocate (RW2) disclosed that Amar Kaur had sold away the property in dispute after the compromise. RW2 made it clear that he had only written the compromise between the parties. Thus, the evidence makes it clear that the document dated

03.02.1991 was not a Will but a kind of settlement among Amar Kaur, Gurbant Singh and Nirmal Singh. The conclusion is apparent that there was no will dated 03.02.1991 in favour of Gurbant Singh and Nirmal Singh, Civil Revision No.3209 of 2009 [ 10 ] but it was only a compromise among the three. As regards the agreement dated 24.07.1995 in favour of the petitioner, it may be mentioned that it neither confers any title in favour of the petitioner, nor such agreement could be made basis for impleading the petitioner as a legal representative. The agreement was only, subject to specific performance, which was never claimed by the petitioner and it is well settled by now that the agreement after a certain and stipulated period looses its life and cannot be made the basis for claiming ownership after the said certain and stipulated period. It is also noticed that the petitioner has not appeared in the witness box to prove the agreement. The original power of attorney dated 18.9.2000 has not been produced on record and merely a photocopy of it has been brought on record, which is also not duly proved. The petitioner has not himself appeared to prove this document. Any way, the power of attorney ceased to exist on the death of its executant. As such, all the three documents i.e, agreement dated 24.07.1995, the power of attorney and Will, both dated

18.9.2000 are too bleak documents to confer upon the petitioner any right to claim himself as legal representative/ legal heirs of Amar Kaur. Reg.Legal Representatives of Nirmal Singh : Now, coming to the question with regard to the legal representatives of Nirmal Singh, the petitioner claims himself to be his legal representative on the basis of the agreement to sell dated 04.08.1997 and the General Power of Attorney as also the Will, both dated 16.6.1998. To the contrary, Gurbant Singh claims himself to be the brother of Nirmal Civil Revision No.3209 of 2009 [ 11 ] Singh. Nirmal Singh also left behind Karamjit Kaur @ Kamaljit Kaur, his widow and Harmeet Singh, his son. As such, they are claiming on the basis of natural succession. As regards the Will purported to have been executed by Nirmal Singh in favour of the petitioner, the alleged Will dated 16.6.1998 appears to be a fake document, obtained under pressure from Nirmal Singh. He was just 50 years old at the time when the said document is alleged to have been executed by him. It was not the only Will dated 16.6.1998,, but a General Power of Attorney was also obtained from him on the said day. Nirmal Singh was neither old, nor ailing man or in such a condition that it was necessary for him to execute the Will, while depriving his own wife, son and mother. No reasons have been recorded for ignoring his own natural heirs and bestowing the whole property upon his family friend i.e, the petitioner are forthcoming from the mouth of any witness or any documents, produced on record. What to talk of compensating the natural heirs including his mother Amar Kaur in the Will, it is only mentioned that he is executing the Will, because the petitioner has financially helped him from time to time, but is not mentioned as to what financial help was given to him. Amardeep Singh, the witness to the Will, has not been examined, whereas other witness Gurmail Singh (AW1) appears to be a person easily available to the petitioner. He has been cited as witness on all the documents, allegedly executed by Amar Kaur and Nirmal Singh. No reasons for excluding the natural heirs have been assigned, therefore, the Will executed by Nirmal Singh, appears to be doubtful. To the contrary, by proving the Ration Card (Ex.D4) and the Civil Revision No.3209 of 2009 [ 12 ] Birth Certificate of Harmeet Singh (Ex.D5), it has been established that Karamjit Kaur and Harmeet Singh are the natural heirs of Nirmal Singh. On the death of Nirmal Singh, the ashes were immersed by Gurbant Singh, his brother. Mere fact that Gurbant Singh immersed the ashes of Nirmal Singh may not be sufficient to prove that he is the legal heir, but it is proved that he died at the house of Nirmal Singh and they all had cordial relations and the last rights were done by Karamjit Kaur. As regards the agreement, power of attorney and the Will, allegedly executed by Nirmal Singh, the suspicious circumstances are the same as in the case of Will allegedly executed by Amar Kaur. Neither any reason for depriving of the natural heirs has been given, nor there is mention about any financial liability, in lieu of which, it could have been so done. The agreement was only subject to specific performance, which was never claimed by the petitioner. Nothing has been brought on record by way of oral or documentary evidence, so as to give rise to an occasion for Nirmal Singh to deviate from his natural heirs and bestowing his property upon the petitioner. As a result of the above discussion, it would well be held that Gurbant Singh, Nirmal Singh along with Bant Kaur and Dalip Kaur are the legal representatives of deceased Amar Kaur. Since Nirmal Singh pre- deceased Amar Kaur, therefore, his natural heirs Karamjit Kaur @ Kamaljit Kaur and Harmeet Singh would represent her estate in place of Nirmal Singh. The petitioner Tejwant Singh has no right on the basis of the Will, power of attorney and the agreement to sell, allegedly executed by Amar Kaur. Similarly, he has also failed to establish himself as legal Civil Revision No.3209 of 2009 [ 13 ] representative of Nirmal Singh on the basis of alleged Will, power of attorney and the agreement. The net result is that the applications moved by the petitioner for impleading himself as legal representative of Nirmal Singh and Amar Kaur have rightly been dismissed by the Court below, while the applications moved by Gurbant Singh and Karamjit Kaur alias Kamaljit Kaur are allowed with the observation that natural heirs of Amar Kaur and Nirmal Singh would be their legal representatives, except Gurbant Singh, who is contesting the suit. Consequently, finding no merit in the revision petitions, the same are hereby dismissed. February 01, 2010 `gian' ( A.N.JINDAL ) JUDGE