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                                           NON-REPORTABLE

              IN THE SUPREME COURT OF INDIA

               CIVIL APPELLATE JURISDICTION

                CIVIL APPEAL NO.3885 OF 2007

Vidya Wanti & Anr.                                 ... Appellants

                  Versus

Durga Dass                                         ... Respondents

                           JUDGMENT

AFTAB ALAM,J.

1.    The 1/5th share of one Amar Nath (deceased), measuring to an

area of 73 kanals 1 marla, situate in the Revenue Estate of Nadala,

Tehsil Bholath, District Kapurthala is the subject-matter of dispute

between the parties. On the one side is the plaintiff-respondent Durga

Dass, the younger brother of Amar Nath, who claimed the latter’s

share in the land on the basis of a will, dated August 20, 1987 said to

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have been executed in his favour.        On the other side are the

defendant-appellants Vidya Wanti (widowed wife) and Santosh

Kumari (daughter) of the deceased Amar Nath. They claimed the

share in the land by devolution.

2.    The land (in which the 1/5th share of Amar Nath is the subject-

matter of dispute) was taken in the name of Badri Dass, the father of

Amar Nath and Durga Dass and two other brothers and a sister. As a

matter of fact, Badri Dass had made an application for the purchase of

land from the Government of India, Department of Rehabilitation

under the provisions of the Displaced Persons (Compensation and

Rehabilitation) Act, 1954. He died sometime in the year 1958 before

any action was taken on his application. Long after his death, the

conveyance deed, dated March 6, 1965 for the land came in the name

of the deceased-applicant and on March 19, 1965 the transfer of the

land was registered in the name of Badri Dass. The mutation in the

revenue records was of course made in the names of Amar Nath,

Durga Dass and the two other sons and a daughter of Badri Dass,

namely, Diwan Chand, Gurbux Lal and Sumtra Rani.

3.    After the death of Amar Chand on March 26, 1988, a dispute

arose between the parties over the mutation of his 1/5th share in the

total land. Durga Dass claimed mutation of Amar Nath’s share in his

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favour on the basis of a will executed by him on August 20, 1987 in

his favour. The wife and the daughter of Amar Nath contested his

claim for mutation. They stated that Amar Nath had not executed any

will in favour of his younger brother Durga Dass and asserted that the

will, dated August 20, 1987 was fake and fictitious. In the mutation

proceedings, the other two brothers Diwan Chand and Gurbux Lal

apparently supported the wife and the daughter of their deceased

brother Amar Nath and filed affidavits stating that the Will relied

upon by Durga Dass was a fictitious document.            The Assistant

Collector, 1st Grade, Bholath, rejected the claim of Durga Dass and

directed that the name of the deceased Amar Nath be substituted in

the revenue records by his widowed wife and daughter. Durga Dass

took the revenue proceedings in appeal but, on being unsuccessful

there, he finally filed a suit for declaration of his title and

confirmation of possession in regard to the 1/5th share of Amar Nath

in the total area of the land.

4.    His case was that though the conveyance deed came in the

name of the father, Badri Dass, because the application was made by

him, it was he (the plaintiff) alone who paid the consideration money

and completed all the formalities for registration of the transfer deed.

His other brothers, including Amar Nath, had no concern with the

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land. In the revenue records, the land was recorded in the names of

all the four brothers and the sister simply because the deed of

conveyance was registered in the name of their deceased father. He

claimed that the land had remained all along under his exclusive

cultivating possession and the other brothers and/or the sister had no

interest in it. His further case was that in recognition of the actual

facts Amar Nath executed the will on August 20, 1987 bequeathing

his 1/5th share to him (the plaintiff) so that his heirs may not claim his

share in the land by devolution due to any misunderstanding.

5.       The defendants resisted the plaintiffs’ suit on grounds already

noted above. In the written statement filed on their behalf the will

dated August 20, 1987, forming the basis of the plaintiffs claim, was

described as fake and fictitious. In addition, it was stated that Amar

Nath was an educated man and apprehending some trouble from the

plaintiff he, before his death, executed a legally valid registered will

in favour of the defendants. Curiously, however, apart from making a

mention of a later will no details in regard to its contents were stated

in the written statement nor was the will produced before the trial

court.

6.       In support of his case, the plaintiff examined three witnesses

including himself. He also produced the will dated August 20, 1987

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both in original and as a certified copy. He also produced copies of

some revenue records in support of his claim of exclusive possession

over the land in question.

7.    The will which was, according to the plaintiff, executed by

Amar Nath on August 20, 1987 is a simple document. It started with

the testator stating that he was about 70 years old and was in good

health but no one knew when his end would come. He further stated

that his father was the owner of approximately 9 acres of land in

Nadala Rakba under Conveyance Deed dated March 19, 1965 but the

consideration money for the sale was paid by his real brother Durga

Dass and registration was also done by him. After the death of their

father the land was mutated in the names of all his legal heirs, though

Durga Dass alone was in possession of the land and the rest of them

were not remotely concerned with the land. He further stated that by

that will he bequeathed his share in the land to his real brother Durga

Dass and after his death Durga Dass would be the owner of his share.

He proceeded to say that he was executing the will to avoid any

dispute after his death between his brother and his legal heirs. He

concluded by stating that he was making the will in full senses and he

had got the contents of the will read over to him and was signing it as

his testament. The will was signed by Amar Nath in Urdu.

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8.    The will was written by Varinder Kumar and it was witnessed

by Tara Singh and Jagat Singh-Nambardar. Before the trial court,

Varinder Kumar was examined as PW-1. He deposed that he had

scribed the will as desired by Amar Nath and he had written it as per

his dictation. After it was scribed, it was read over to the executant

and he signed it in their presence. He further stated that it was

attested by Jagat Singh-Nambardar and Tara Singh, the marginal

witnesses. The will also bore his signature.

9.    One of the witnesses of the will Tara Singh was examined as

PW-2. He stated that the testator had signed it before him and Jagat

Singh-Nambardar and then on being asked by the testator he and

Jagat Singh-Nambardar had also put their signatures on it as marginal

witnesses. He also proved the will.

10.   Both PW-1 and PW-2 were cross-examined at length but they

remained firm in their deposition.

11.   The plaintiff, of course, examined himself and fully supported

his case.

12.    On the other hand, on behalf of the defence, the daughter of

Amar Nath was examined as DW-1. She indeed stated before the

court that his father never executed any will in respect of the suit

property during his life time. She also said that the will set up by the

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plaintiff was forged and fictitious and it was not executed by his

father. She also said that it did not bear the signature of his father and

his father Amar Nath was in Delhi on August 20, 1987. Beyond this

no steps were taken to show to the court that the signature on the will

dated August 20, 1987 was not of Amar Nath.                In regard to

possession, in her examination-in-chief she said that she and her

mother were in symbolic possession as owners of the suit land which

was cultivated by the plaintiff. In cross examination she plainly

admitted that Durga Dass was in cultivating possession of the suit

land since before the death of his father.

13.   On a careful examination of the materials on record, the trial

court accepted the plaintiff’s case and decreed the suit.            The

defendants took the matter in appeal. The Appellate Court allowed

the appeal, reversed the decree of the trial court and dismissed the

plaintiff’s suit. The Appellate Court took the view that the will relied

upon by the plaintiff was shrouded in suspicious circumstances. It

was executed in Nadala though the testator lived in Delhi. It was

written by someone who was not a professional scribe though

professional scribes were easily available in Nadala.         It was left

unregistered even though the registration office was at a very short

distance from Nadala and Durga Dass being an educated person

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would fully know the value and importance of registration of a

document and most importantly he had no reason to disinherit his

wife and daughter.

14.   The plaintiff after losing in the First Appellate Court took the

matter in Second Appeal before the High Court. The High Court

framed the questions arising in the second appeal and proceeded to

examine them on the basis of the materials on record and the relevant

case law. The High Court returned the finding and came to hold that

the circumstances cited by the lower appellate court to hold that the

will was suspicious and the plaintiff had failed to dispel the suspicion

were quite unfounded.

15.   We have carefully gone through the order passed by the High

Court and we are unable to see any infirmity therein so as to warrant

any interference by this court under Article 136 of the Constitution.

16.   However, in fairness to Mr.S.K.Bagga, learned senior counsel

appearing on behalf of the appellants, it needs to be noted that he

canvassed the case of the appellants-defendants very strongly. He

relied upon each of the circumstances alluded by the first appellate

court for holding that the will dated August 20, 1987 was suspicious

and unreliable.   Apart from that he also invited our attention to

another registered will executed by Amar Nath on March 22, 1988

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(Amar Nath died on March 26, 1988). Mr.Bagga submitted that in

the registered will dated August 20, 1987 he bequeathed one shop

which was allotted to him by the Ministry of Rehabilitation to one of

his nephews but left other properties to his wife and daughter. In this

will, he specifically bequeathed his 1/4th share in the land of Nadala to

his daughter Santosh Kumari and expressly excluded his nephews

from any share in that land. This deed has been produced for the first

time before this Court and, therefore, we are not inclined to look into

it.

17.   The decision of the High Court on the materials before it

warrants no interference. We find no merit in the appeal. It is

accordingly dismissed.

                                             ..........................J.

                                             [P.P.Naolekar]

                                             .........................J.

                                             [Aftab Alam]

New Delhi,

May 09, 2008.