As per case facts, the plaintiffs appealed against the dismissal of their suit seeking possession of ancestral land. They challenged a Will executed by Bishan Singh in favor of Smt. ...
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No. 109 of 1992 (O&M)
Surmukh Singh and others
.......... Appellants
Versus
Smt. Debo and others
.......... Respondents
1 The date when the judgment was reserved 17.04.202 6
2 The date when the judgment is pronounced 06.07.2026
3 The date when the judgment is uploaded on the
website
06.07.2026
4 Whether only operative part of the judgment is
pronounced or whether the full judgment is
pronounced
Full
5 The delay, if any, of the pronouncement of full
judgment, and reasons thereof.
Not applicable
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Argued By:-Mr. Ashok Kumar Khubbar, Advocate
for the appellants-plaintiffs.
Mr. S.P. Laler, Advocate with
Mr. Shubham Saroha, Advocate
for respondent Nos. 4 & 5-defendant Nos. 4 & 5.
****
HARKESH MANUJA, J.
The plaintiffs are in appeal. First appeal filed by the
plaintiffs was also dismissed by the learned First Appellate Court. For the
sake of convenience, the parties are referred to as per their status in the
Civil Suit.
RSA No. 109 of 1992 (O&M) -2-
[2] By way of present appeal, challenge has been laid to the
judgment and decree dated 17.07.1991 passed by the Court of learned
Additionl District Judge, Ambala (hereinafter to be referred as “First
Appellate Court”), whereby an appeal filed at the instance of appellants-
plaintiffs against the judgment and decree dated 07.12.1987 passed by the
Court of learned Additional Senior Sub Judge, Jagadhri (hereinafter to be
referred as “trial Court”), dismissing their suit for possession of the suit
land, was dismissed; thereby affirming the judgment and decree passed by
the learned trial Court.
FACTS
[3] Briefly stating the facts, one Bishan Singh alias Bishna was
owner of agricultural land measuring 23 bighas 19 biswas comprised in
Khewat No. 117, Khasra Nos. 628 to 631, 869/633, 634, 635 situated in
Village Sankhera, Tehsil Jagadhri (hereinafter referred to as “suit
land”), which was allegedly ancestral in his hands qua the plaintiffs and
their deceased father-Beli Ram. It was pleaded in the plaint that the said
Bishan Singh was unmarried and died issueless on 24.08.1979 and was
real brother of deceased-Beli Ram (father of plaintiffs). It was further
pleaded that Bishan Singh executed a Will about 40 years before
institution of the suit in favour of his nephews/defendant Nos. 2 & 3,
namely, Hukam Chand and Kuldip Chand and later on, Bishan Singh
executed a Will of his property in favour of his alleged wife-Smt. Debo
(defendant No. 1); Bishan Singh also suffered a consent decree in the Civil
Court in respect of the suit land in favour of defendant No. 1. It was
further pleaded that the deceased-Bishan Singh was not having sound
RSA No. 109 of 1992 (O&M) -3-
mind at the time of alleged Will in favour of defendant No. 1, therefore, he
was not capable of executing a valid Will and making any valid transfer by
way of decree etc. of the suit land, however, half of the suit land had
wrongly been mutated in the name of defendant No. 1 on the basis of a
consent and collusive decree. The plaintiffs challenged the validity of the
Will in favour of defendant No. 1, the Will in favour of defendant Nos. 2
& 3 as well as the decree suffered by Bishan Singh in favour of defendant
No. 1 on the ground that Smt. Debo was not the legally wedded wife of
Bishan Singh and the suit land being ancestral in his hands, he had no right
to bequeath or transfer the same in favour of any person as he was a Jat by
Caste and governed by General Custom of Zamindra, according to which
no proprietor could alienate his immovable property in the presence of
collaterals. During pendency of the suit, defendant No. 1 (Smt. Debo)
transferred some portion of the suit land in favour of defendant Nos. 4 &
5, namely, Zora Singh and Nasib Singh respectively and the validity of
that sale was also challenged in the amended plaint; hence the suit was
filed.
[4] Upon notice, defendant No. 1 (Smt. Debo) filed written
statement while pleading that Bishan Singh contracted a Karewa marriage
with her about five years before his death and the Will executed by Bishan
Singh on 15.03.1976 as well as the decree suffered by him in her favour
are valid.
[4.1] Defendant Nos. 2 & 3, namely, Hukam Chand (minor) and
Kuldip Chand (minor) respectively filed a written statement admitting the
material averments of the plaint, whereas defendant Nos. 4 & 5, namely,
RSA No. 109 of 1992 (O&M) -4-
Zora Singh and Nasib Singh respectively filed a joint written statement
wherein they pleaded that they are bona fide purchasers of half (1/2) share
of the suit land for a valuable consideration of Rs. 30,000/- without any
notice, therefore, their rights are protected under Section 41 of the
Transfer of Property Act 1882.
[5] Replication controverting the averments made in the written
statements was filed. On the basis of pleadings of the parties, the trial
Court framed the following issues vide orders dated 03.03.1981 &
19.02.1985:-
“1. Whether the suit property was ancestral in the hands
of Bishan Singh qua the plaintiff? OPP
2. Whether the plaintiff and Bishan Singh were
governed by custom? If so, what that custom is?
OPP
3. Whether Bishan Singh could not execute Will of his
property as alleged? OPP
4. Whether defendant No. 1 is widow of Bishan Singh
and Bishan Singh had executed a valid Will in her
favour? OPD 1
5. Whether the decree in question in respect of half of
the property of Bishan Singh in favour of defendant
No. 1 is null and void as alleged? OPP
6. Whether the plaintiff is estopped from alleging that
Bishan Singh had no right to execute a Will? OPD 1
6 A). Whether the defendants No. 4 and 5 are bonafide
purchaser for valuable consideration and are
protected under section 41 of the T.P. Act? OPD
6 B). Whether the plaintiffs are estopped from filing the
present suit as alleged? OPD
6 C). Whether the present suit is barred under order 2 rule
2 CPC as alleged? OPD
RSA No. 109 of 1992 (O&M) -5-
6 D). Whether the suit is not maintainable as
alleged?OPD
7. Relief. ”
[6] The trial Court, vide its judgment and decree dated
07.12.1987, dismissed the suit of the appellants-plaintiffs.
[7] Aggrieved thereof, the appellants-plaintiffs filed the first
appeal, which also came to be dismissed with costs vide judgment and
decree dated 17.07.1991 passed by the learned First Appellate Court.
Hence, the present Regular Second Appeal.
CONTENTION(S):
ON BEHALF OF THE APPELLANT(S)-PLAINTIFF(S):
[8] Impugning the aforementioned judgments and decrees dated
07.12.1987 and 17.07.1991, learned counsel for the appellants-plaintiffs
submitted that though a plea was set up by defendant No. 1-respondent
No. 1 (Smt. Debo) with respect of she having performed Karewa marriage
with Bishan (since deceased), however, he pointed out that Bishan was a
Jat by caste, whereas respondent No. 1 happened to be of Rajput
community and as such, there was no question of any Karewa ceremony
performed between her and the deceased-Bishan. In support, learned
counsel placed reliance upon a decision dated 11.01.2017 passed by this
Court in RSA No. 1625 of 1994, titled “Karan Singh (since deceased)
through his LRs and others Versus Bhagwani (since deceased) through
her LRs”. Relevant portion from the aforesaid decision dated 11.01.2017
is extracted hereunder:-
“ ……….Counsel for the appellant is not in a position to
substantiate plea of the defendant (Lado) that she could
RSA No. 109 of 1992 (O&M) -6-
perform Karewa with Mir Singh as Karewa marriage
permitted under customary law can be performed only with
a relative of previous husband. This apart, counsel for the
appellants has not referred to any document or text on
customary law permitting Karewa between a male Jat with
a female of some other caste in District Sonepat. That being
so, no error much less illegality can be noticed in the
findings of Courts that alleged marriage of Lado with Mir
Singh was not valid. The mere entry in the records by the
election staff for the purpose of preparing the voter list is
not a sufficient evidence of marriage. As a matter of fact,
marriage was required to be proved in accordance with the
provisions of the Hindu Marriage Act or under the
customary law which the defendant miserably failed to do.”
[8.1] Further, learned counsel for the appellants-plaintiffs pointed
out that in an earlier Civil Suit No. 368, dated 28.08.1979 titled as
“Hukam Chand Versus
Debo”, respondent No. 1 Debo appeared as DW-
1 and stated that she was previously married to one Chattar Singh and
similarly the brother of Debo, namely, Sunder appeared as DW-2 and
deposed that his sister-Debo was married to one Tulsi Ram. Learned
counsel also submitted that both the statements of Debo who appeared as
DW-1 and Sunder who appeared as DW-2 were proved on record as
Exhibit P-12 & Exhibit P-13. He thus submitted that once, Debo
previously married and there was no evidence available on record with
respect to his divorce with the previous husband, her pleadings with
respect to Karewa marriage with Bishan were not established.
[8.2] Furthermore, learned counsel for the appellants-plaintiffs
submitted that since in the present case, it was concurrently recorded by
the Courts below that the subject property was ancestral in nature at the
RSA No. 109 of 1992 (O&M) -7-
hands of Bishan (since deceased) and he being Jat from District Rohtak
was governed by the customary law, therefore, he could not have created
an intestate document with respect to the said property under the
customary law.
[8.3] Besides it, learned counsel for the appellants submitted that
the Will dated 15.03.1976 proved on record as Exhibit D-1 was
surrounded by the following suspicious circumstances and thus was
required to be discarded:-
(i) one of the attesting witnesses, namely, Lal Chand who
appeared as DW-2 was not resident of Village Sankhera,
Tehsil Jagadhri, District Ambala (now District Yamuna
Nagar) to which Bishan was permanent resident and the
subject property belonged, whereas Lal Chand was resident of
Village Ganoli.
(ii) At the time of execution of Will dated 15.03.1976, the
beneficiary Debo herself was accompanying the testator-
Bishan alongwith her brother Sunder and thus influenced the
testator.
ON BEHALF OF RESPONDENT NOS. 4 & 5-DEFENDANT NOS. 4 & 5 / PURCHASERS
[9] On the other hand, learned counsel for respondent Nos. 4 & 5-
purchasers while relying upon judgment and decree dated 15.02.1985
passed in Civil Suit No. 368 of 1979 titled “Hukam Chand and another
Versus Smt. Debo Devi”, contended that a specific issue about the validity
of the Will dated 15.03.1976 was framed therein and the findings were
recorded in favour of respondents-defendants while upholding the validity
RSA No. 109 of 1992 (O&M) -8-
of execution of the said Will in her favour by the deceased-Bishan.
Learned counsel pointed out that in the aforesaid Civil Suit No. 368 of
1979, the plaintiffs-Hukam Chand and Kuldip Chand being minors were
represented through Beli Ram i.e. their real uncle and thus, the said Beli
Ram was estopped by his own act and conduct about assailing the validity
of the execution of Will dated 15.03.1976 in favour of respondent No. 1-
defendant No. 1 by the deceased-Bishan.
[9.1] Learned counsel further submitted that in the given facts and
circumstances, it was not disputed that half of the holdings owned and
possessed by the deceased-Bishan were transferred in favour of respondent
No. 1-Debo by virtue of judgment and decree dated 22.03.1978 passed in
Civil Suit No. 397 of 1977 titled as “Debo Devi Vs Bishna”. He also
pointed out that in the judgment and decree dated 22.03.1978 which was
proved on record as Exhibit D-8 and Exhibit D-9, respondent No. 1-
defendant No. 1 (Debo) was shown as wife of Bishan and this fact was
never denied or disputed by the deceased-Bishan. He thus submitted that
once, the deceased-Bishan admitted respondent No. 1-Debo as his wife,
the appellants-plaintiffs were having no cause of action to dispute the
relationship between the deceased-Bishan and Debo.
[9.2] Learned counsel for respondent Nos. 4 & 5 also submitted
that once, it was established on record that Bishan and Debo were residing
together since long and Debo used to serve Bishan, it was a valid cause for
the deceased-Bishan to execute the registered Will dated 15.03.1976 in
favour of Debo (respondent No. 1) irrespective of the fact that the
matrimonial relationship or Karewa marriage between them was proved or
RSA No. 109 of 1992 (O&M) -9-
not. In support, learned counsel placed reliance upon a decision dated
09.03.2022 rendered by the Hon’ble Apex Court in Civil Appeal No. 1731
of 2009, titled “Mohinder Singh (D) Thr. LRs & Ors. Versus
Mal Singh
(D) Thr. LRs & Ors.”. Relevant portion from the said decision dated
09.03.2022 is extracted hereunder:-
“9. In our view, the whole approach of the trial Court and First
Appellate Court in this third round is completely fallacious. If one
may say the reasoning is based only on a social belief that the man
staying with a woman, who is not his wife and giving his property
to her is something immoral and improper and she should not be
the beneficiary of gift deed even if the donor stands by the gift
deed.
10. If one may say, even the belief of the original plaintiffs and
now the appellants before us is predicated on this prejudice that
they have an inherent right to get the benefit of the properties as
being the brothers of the deceased and the lady who stayed with
him, wife or not, is not entitled for the same. It is in these
circumstances that one of the issues framed originally was also
whether Pritam Kaur enjoyed the status of a wife or not. In our
view, if the donor is making a gift out of his own free will and
volition and is the exclusive owner of the properties, it is nobody's
concern as to whom he gives the properties to.”
[9.3] Learned counsel further contended that the submission made
on behalf of the appellants-plaintiffs that as per custom in the district, the
deceased Bishan being Jat could not have bequeathed his share in the
ancestral property was wholly misplaced in view of the law laid down by
this Court in case titled “Nathu Ram and others Versus
Jug Lal (Died)
and represented by his LRs Atma Ram son of Jug Lal”, reported as 1981
PLR 754. In support, he placed reliance upon para-3 thereof which is
extracted hereunder:-
“ 3. It is then urged on behalf of Jug Lal that the parties
are governed by special custom as contained in the Riwaj-
e-am of Ambala district because the parties belong to
RSA No. 109 of 1992 (O&M) -10-
Tahsil Thanesar, which at one time was part of Ambala
and, therefore, the special custom of Ambala would govern
the parties. My attention has been invited to Question No.
69 of the Riwaj-e-am of Ambala district, which is as
follows:-
"If a proprietor by verbal or written direction disposes
of his property after his death ?
Ans. The replies given are as a rule curiously wide of
the mark and are in themselves quite sufficient
evidence of the fact that wills are never made, and
that the nature of a will is not understood. If their
recorded statements could be trusted, a majority of the
tribes would agree that wills either oral or written
could be made so as to defeat the rights of the heirs. It
was abundantly clear at attestation that nothing was
further from this intention. The only tribe having any
custom on the point are the Sayyads. They agree that
a will is legal whether oral or written but they only
allow its limited application to special articles and a
small portion of the property, and do not recognise its
effect as regards immovable property so to defeat the
heirs. A few other Muhammadans appear to
understand what is meant by executing a will, but say
that none ever is executed unless with the intention of
making it quite sure that the property shall descend
according to custom and not by Muhammadan Law.
The Hindu tribes without exception agree that a will is
unknown and all that they meant by their recorded
replies was that where a man had assigned a part of
his property to any particular heir during his lifetime,
and where this assignment had been made publicly
and with the consent of the collaterals, effect would be
given to his wishes after his death. This practically
amounts to a gift made during life, and the only
proper answer to the question is that wills are entirely
unknown.
RSA No. 109 of 1992 (O&M) -11-
1918. Wills and legacies are unknown as far as
ancestral immovable property is concerned."
Then, my attention was invited to Question No. 70, which is
with regard to gifts of ancestral property, the answer to
which is that gifts were opposed to custom prevalent among
Jats. The point for our consideration is not of gifts but gifts
in respect of a sonless proprietor and no such special
custom has been shown. Accordingly, Question No. 70 and
the answer thereto would not have any bearing on the
decision of this case. Therefore, we have to fall back upon
the general custom which clearly makes a provision for a
gift by a sonless proprietor to a near agnate for services
rendered. In the present case, Amar Nath was a near
agnate as also a person who had rendered services to Raja
Ram and, therefore, Raja Ram could validly make a gift in
his favour.”
No other point was raised by the parties.
DISCUSSION AND REASONING
[10] Having heard learned counsel for the parties and gone through
the paper-book/record, I am unable to find substance in the submissions
made by the appellants.
VALIDITY OF THE WILL
[11] It is well-settled principle of law that a Will is required to be
proved in the manner contemplated under Section 63 of the Indian
Succession Act, 1925 read with Section 68 of the Indian Evidence Act,
1872 and that suspicion, if any, surrounding its execution must be real and
substantial, not fanciful or speculative. The Hon'ble Supreme Court in
RSA No. 109 of 1992 (O&M) -12-
Murthy v. C. Saradambal reported as 2022 (3) SCC 209 while referring to
the previous judgments on proof of will stated that:
“….In fact, the legal principles with regard to the proof of a will are
no longer res integra. Section
63 of the Indian Succession Act, 1925
and Section 68 of the Evidence Act, 1872, are relevant in this
regard. The propounder of the will must examine one or more
attesting witnesses and the onus is placed on the propounder to
remove all suspicious circumstances with regard to the execution of
the will…..”
[11.1] A perusal of the record shows that DW-2, namely, Lal Chand,
who, after identifying the original Will, deposed that it was scribed at the
instance of Bishan by Geeta Ram at Jagadhri, was read over and explained
to him, that Bishan thereupon, affixed his thumb-impression (a valid mode
of execution under Section 63(a)) and that DW-2 himself signed as
attesting witness in Bishan's presence; the document also being attested by
an Advocate. This testimony was independently corroborated by the
notarial endorsement of Shri B.R.S. Caushish, Advocate and Notary,
appearing on the document itself.
[11.2] The Hon'ble Supreme Court in V. Kalyanaswamy (D) by LRs
versus L. Bakthavatsalam (D) by LRs, 2020 SCC OnLine SC 584 relying
upon Kashibai W/o Lachiram v. Parwatibai W/o Lachiram 1995(6) SCC
213 authoritatively clarified the scope of Section 68 of the Evidence Act:
where one attesting witness is examined under Section 68, that witness
must depose not merely to his own act of attestation but must also prove
the attestation by the other attesting witness, this being distinguishable
from Section 69 (applicable only when witnesses are unavailable), where
RSA No. 109 of 1992 (O&M) -13-
proof of one witness's signature alone suffices. Since DW2, Lal Chand
deposed that the Will was also attested by Shri B.R. Caushish, Advocate,
in whose presence Bishan affixed his thumb-impression and DW-2 signed-
thereby covering attestation by both witnesses through the one witness
examined, as Kalyanaswamy’s case (supra) requires. The relevant portion
of Kalyanaswamy’s case is extracted hereunder:-
" 69. The further question is, as posed by us, whether despite the fact that
both the attesting witnesses were dead, the matter to be proved under
Section 69 of the Evidence Act, is the same as a matter to be proved
under Section 68 of the Evidence Act. In other words, under Section 68 of
the Evidence Act, in the case of a Will covered under section 63 of the
Indian Succession Act, it is indispensable that at least one attesting
witness must not only be examined to prove attestation by him but he
must also prove the attestation by the other attesting witness [See
1995(6)SCC 213]. This Court has taken the view that while it is open to
prove the will and the attestation by examining a single attesting witness,
it is incumbent upon him to prove attestation not only by himself but also
attestation by the other attesting witness. "
[11.3] As regards the non-examination of scribe, the law has never
treated his examination as mandatory; his function is confined to
preparation of the document and is distinct in nature and purpose from that
of an attesting witness, a distinction the Supreme Court itself drew while
elaborating Section 68 in Civil Appeal No. 14286-14286 of 2024 (@SLP
(C) No. 23721 of 2022) titled as Chinu Rani Ghosh v. Subhash Ghosh
explaining that the object of attestation by a witness is wholly different
from that of attestation by a scribe or draftsman. The relevant paragraph
thereof is extracted hereunder:-
RSA No. 109 of 1992 (O&M) -14-
“16. On a perusal of Will (Ext.C), which is a testament of Smt. Kanaki
Bala Ghosh dated 15.05.1995, it is no doubt clear that in the insofar as
the witnesses columns are concerned, the names of the Shri. Gopal
Devnath, Shri. Nilmohan Sarkar and Shri. Maran Dev Nath have been
noted. As far as the scribe of the said testament is concerned, the name of
Shri. Subajit Roy has been noted. We may at this stage itself state that the
object and purpose by which a Will is attested by a witness is quite
distinct from the object and purpose by which a scribe would attest a
Will; an attesting witness would attest a Will on the request made by the
testator for the purpose of due execution of the Will and in accordance
with section
63 of the Succession Act. But the object and purpose with
which a scribe or for that matter, a draftsman of the Will would attest the
Will is not the same. Therefore, in the instant case, the evidence of Shri.
Subajit Roy (DW-2) cannot be construed as that of an attesting witness.”
Once DW-2's testimony independently establishes due
execution and attestation by both attesting witnessses and stands
corroborated by the notarial endorsement on the document, the omission to
separately examine the scribe does not detract from the sufficiency of
proof under Section 63 of the Succession Act read with Section 68 of the
Evidence Act. Thus, from the deposition of DW-2, Lal Chand validity of
Will dated 15.03.1976 (Ex.D-1) in terms of Section 63 of the 1925 Act
read with Section 68 of the 1882 Act was duly proved on record.
[12] The Hon'ble Supreme Court, in Murthy’s case (supra), held
that a Will, like any other document, is to be proved by satisfying the
ordinary rules of evidence and the propounder must additionally remove
all legitimate suspicions before the document can be accepted as the last
Will of the testator. The relevant extract thereof is reproduced hereunder:-
“….. In the above noted case, this Court has stated that the
following three aspects must be proved by a propounder:-
RSA No. 109 of 1992 (O&M) -15-
"(i) that the will was signed by the testator in a sound and disposing
state of mind duly understanding the nature and effect of disposition
and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his signature as required
by law, courts would be justified in making a finding in favour of
propounder, and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be removed by
cogent, satisfactory and sufficient evidence to dispel suspicion. In
other words, the onus on the propounded can be taken to be
discharged on proof of the essential facts indicated therein….."
In P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan
Nambiar reported as AIR 1995 SUPREME COURT 1852 the Hon’ble
Apex Court held that it is the duty of the propounder of the Will to remove
all the suspected features, but there must be real, germane and valid
suspicious features and not fantasy of the doubting mind which means that
not every circumstance an objector chooses to characterize as doubtful.
[12.1] In the present case, the mere fact that one attesting witness,
Lal Chand (DW-2), happened to be a resident of a neighbouring village
rather than the village where the testator resided, is not by itself a
suspicious circumstance sufficient to displace the presumption of due
execution attached to a registered Will, particularly when there is no
allegation, much less proof, of any disqualification of that witness to attest
the document. Similarly, the presence of the beneficiary or her relatives at
or about the time of execution does not, without more, amount to undue
influence. The aforesaid view finds support from the observations of the
Hon’ble Apex Court in Pentakota Satyanarayana & Ors vs Pentakota
RSA No. 109 of 1992 (O&M) -16-
Seetharatnam & Ors 2005 (8) SCC 67 relying upon Sridevi & Ors vs.
Jayaraja Shetty & Ors, (2005) 2 SCC 784 held that it is settled by a
catena of decisions that any and every circumstance is not a suspicious
circumstance. Even in a case where active participation and execution of
the Will by the propounders/beneficiaries was there, it has been held that
that by itself is not sufficient to create any doubt either about the
testamentary capacity or the genuineness of the Will. Mere presence of the
beneficiary at the time of execution would not prove that the beneficiary
had taken prominent part in the execution of the Will. The onus to prove
the will is on the propounder and in the absence of suspicious
circumstances surrounding the execution of the will proof of testamentary
capacity and the proof of signature of the testator as required by law not be
sufficient to discharge the onus. In case, the person contesting the Will
alleges undue influence, fraud or coercion, the onus will be on him to
prove the same and that as to what suspicious circumstances which have to
be judged in the facts and circumstances of each particular case. No such
proof of undue influence, fraud or coercion was brought on record by the
appellants-plaintiffs thus, mere opportunity to influence is not equivalent
to proof of actual exercise of undue influence or coercion. Thus, the Will
dated 15.03.1976 (Ex.D-1) by Bishan Singh in favour of Smt. Debo is held
to be valid in law.
STATUS OF SMT. DEBO AS WIFE
[13] As regards the status of Debo as the wife of Bishan Singh, it
is significant that in the judgment and decree dated 22.03.1978 passed in
Civil Suit No. 397 of 1977 (Exhibits D-8 and D-9), Debo was described
RSA No. 109 of 1992 (O&M) -17-
and recorded as the wife of Bishan Singh, and that decree, by which half
of the suit land stood transferred in her favour, was suffered by Bishan
Singh himself during his lifetime without demur. Bishan Singh never
disputed the description of Debo as his wife in the decree of 1978, nor did
he ever seek to have that decree set aside on the ground that she was not
his wife or that the decree was obtained by fraud or collusion. That decree
attained finality long ago and was never put in issue by way of any
independent challenge, appeal, or application for its setting aside; it cannot
now be permitted to be assailed collaterally in these proceedings, more so
when half the suit land has already passed out of the estate of Bishan
Singh by virtue of that decree.
[14] Even from the perusal of the record and as also noted by the
learned Courts below, PW1, namely, Beli Ram admitted in his deposition
that Smt. Debo had been visiting the house of Bishan for a long period and
had been serving him. The deposition of DW3, namely, Karan Singh also
supported that the Bishan and Debo used to reside together as husband and
wife. This supports the proposition that Bishan and Debo had been
residing together for a long period of time as also proved by Smt. Debo in
her oral as well as documentary evidence which raises strong presumption
of marriage arising from long cohabitation. In Kattukandi Edathil
Krishnan and another versus Kattukandi Edathil Valsan and others,
(2022) 16 SCC 7, the Court held that where a man and a woman have
lived together for long years as husband and wife, a presumption arises in
favour of a valid marriage under Section 114 of the Evidence Act, and that
RSA No. 109 of 1992 (O&M) -18-
although the presumption is rebuttable, a heavy burden lies on the party
seeking to deny the marital status.
[15] In this view of the matter, the submission of learned counsel
for the appellants-plaintiffs, founded upon the decision of this Court in
Karan Singh’s case (supra) that no valid Karewa marriage could be
performed between persons of different castes, does not require
independent examination on facts, since the matter has already attained
finality between the parties qua the decree of 1978 as well as qua the Will
of 1976. Even otherwise, as held by the Hon'ble Supreme Court in case of
Mohinder Singh (supra), a testamentary disposition by a sonless
proprietor in favour of a person who has rendered services to him and
resided with him does not necessarily stand or fall on proof of a valid
matrimonial tie; long cohabitation and rendition of personal service
constitute sufficient and valid consideration in law for such a disposition,
independent of the question of marriage which was duly admitted by the
appellants.
[16] Further, the conduct of appellants-plaintiffs does not help
their case. Beli Ram(the original plaintiff in present suit and father of
appellant no. 1 and 2) represented the minor defendant Nos. 2 & 3 in Civil
Suit No. 368 of 1979 (Ex. D3), a suit for permanent injunction against
Debo from alienating the part of the suit property. Though he did not sue
in his personal capacity and suit was for permanent injunction, the Court
framed the specific question regarding the Will dated (Ex. D1) and
effectively adjudicated upon it, holding the Will to be valid. Beli Ram
even appeared as PW-1 in the said suit thus, it cannot be said the
RSA No. 109 of 1992 (O&M) -19-
adjudication was not in his knowledge. The present appellants, claiming
an interest in the subject property through the same line as Beli Ram,
cannot disavow the evidentiary effect of his conduct and deposition in
those proceedings.
[16.1] Also, in Civil Suit No. 167 of 1981 Surmukh Singh, appellant
no.1, in the plaint (Mark-B), referred the suit property being acquired by
Debo as "was acquired by the vendor through inheritance from her
allegedly late husband namely Bishan." Validity of these documents was
not challenged by plaintiffs nor plaintiffs adduced any evidence to rebut
the truthfulness of these documents in the present case. A party that has, in
one proceeding, acknowledged the vendor's title as flowing through
inheritance from her husband cannot, in a subsequent proceeding, turn
around and deny both the Will and the marital relationship that underpins
that very title. The appellants cannot be permitted to approbate in one
proceeding and reprobate in another. Such wholly inconsistent conduct
does not inspire the confidence of this Court in the claims of the
appellants.
CUSTOMS AND ANCESTRAL CHARACTER OF THE
PROPERTY
[17] Assuming arguendo that the suit land was ancestral in the
hands of Bishan Singh qua the plaintiffs, the submission that a Jat
governed by custom could not at all alienate or bequeath such property in
derogation of the rights of collaterals does not assist the appellants-
plaintiffs to the extent claimed. As explained by this Court in Nathu
Ram’s case(supra), while will in respect of ancestral immovable property
may not find general recognition under custom, the general custom equally
RSA No. 109 of 1992 (O&M) -20-
and clearly permits a sonless proprietor to make a valid gift, or disposition
in the nature of a gift, in favour of a person who has rendered services to
him, such a person being treated analogously to a near agnate for that
limited purpose. Further, it is well-settled principle of law that the custom
must be established by clear and unambiguous evidence of usage, and that
general propositions about a tribe's incapacity to alienate ancestral
property admit of well-recognized exceptions, including alienation for
consideration in the nature of services rendered to a sonless proprietor. No
evidence was led by the appellants-plaintiffs to displace the existence of
such an exception, or otherwise to establish a rigid custom excluding it.
[17.1] Bishan Singh, admittedly issueless, was entitled under the
general custom to provide for a person, such as Debo, who had resided
with him and rendered service to him in his lifetime. The objection
founded purely on the customary incapacity to "will away" ancestral
property therefore does not, by itself, invalidate the disposition in
question, particularly when that disposition has, in any event, already been
given effect to and acted upon by way of the unchallenged decree of 1978
in respect of half the holding, and stands independently fortified by the
concurrent findings of the courts below. It is further noteworthy that the
validity of the decree dated 22.03.1978 transferring half the suit land to
Debo was never independently challenged in any proceedings whatsoever,
and therefore her title to that extent stands on an independent and
unassailable footing.
RSA No. 109 of 1992 (O&M) -21-
CONCLUSION
[18] For the reasons recorded above, I find no merit in the
contentions raised on behalf of the appellants-plaintiffs. The findings
recorded by the learned trial Court and affirmed by the learned First
Appellate Court do not suffer from any illegality, perversity, or error of
law warranting interference by this Court.
[19] Accordingly, the present Regular Second Appeal is dismissed
and the judgment and decree dated 17.07.1991 passed by the learned First
Appellate Court, affirming the judgment and decree dated 07.12.1987
passed by the learned trial Court, are upheld.
[20] Since, the main appeal has been decided, no orders are
required to be passed in the pending application(s) and the same shall
stand disposed off.
July 06, 2026 ( HARKESH MANUJA )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes
Whether Reportable Yes
In a significant ruling, the High Court of Punjab & Haryana at Chandigarh has delivered its judgment in the case of **Surmukh Singh and others Versus Smt. Debo and others (RSA No. 109 of 1992 (O&M))** on July 06, 2026, bringing a close to a protracted **property dispute**. This decision, which affirms the lower courts' findings, meticulously examines the **validity of will** in the context of customary law, marital status, and the principles governing property alienation. The detailed pronouncement by Hon'ble Mr. Justice Harkesh Manuja, available on CaseOn, provides crucial insights into the complexities surrounding testamentary dispositions and ancestral property rights.
The core of this appeal revolved around several critical legal questions:
The Court's decision was guided by established legal principles:
The Court found the Will dated 15.03.1976 to be validly executed. DW-2, Lal Chand, an attesting witness, clearly deposed that the Will was scribed at Bishan's instance, read over to him, and Bishan affixed his thumb impression in the presence of witnesses, including an advocate who also attested. The Court, citing Supreme Court precedents, clarified that the attestation by DW-2 effectively proved the attestation by both witnesses and that the non-examination of the scribe was not a fatal flaw.
Regarding alleged suspicious circumstances, the Court dismissed arguments that an attesting witness from a neighboring village or the beneficiary's presence during execution constituted undue influence. It emphasized that mere opportunity to influence is not proof of actual undue influence, and the onus to prove such fraud or coercion rested with the appellants, which they failed to discharge.
The pivotal point in Smt. Debo's status was a judgment and decree dated 22.03.1978 in an earlier Civil Suit, where she was explicitly described and recorded as Bishan Singh's wife. Bishan Singh himself never challenged this description or the decree that transferred half of the suit land to her. The High Court stressed that this decree, having attained finality, could not be collaterally assailed in the current proceedings.
Furthermore, evidence from the record, including admissions by PW1 (Beli Ram, the original plaintiff and father of appellants) and testimony from DW3 (Karan Singh), confirmed that Bishan and Debo had resided together for a long period, with Debo serving Bishan. This long cohabitation, supported by documentary and oral evidence, raised a strong presumption of marriage, consistent with the Supreme Court's ruling in Kattukandi Edathil Krishnan.
The appellants' reliance on Karan Singh's case regarding the invalidity of Karewa marriage between different castes was deemed inapplicable. The Court reasoned that the issue of marital status and the **validity of will** had already achieved finality through the 1978 decree and the 1976 Will. Moreover, even if a formal marital tie was not strictly proven, a testamentary disposition in favour of a person who rendered services and cohabited with the testator could be valid, as established in Mohinder Singh's case.
For legal professionals analyzing complex judgments like this, CaseOn.in offers 2-minute audio briefs that simplify the intricate details of rulings, allowing for quick comprehension and efficient analysis of specific points raised in such property disputes and will challenges.
Even assuming the property was ancestral, the Court referred to Nathu Ram's case, which indicates that while Wills of ancestral immovable property might not always be recognized under general custom, exceptions exist. Specifically, a sonless proprietor could make a gift or disposition for services rendered to a person, treating them as a near agnate for that purpose. The appellants failed to provide evidence displacing this exception or establishing a rigid custom that would exclude such a disposition. Coupled with the unchallenged 1978 decree that transferred half the land to Debo, her title to that extent stood on an independent and unassailable footing.
The Court also highlighted the appellants' inconsistent conduct. Beli Ram, father of the current appellants, had represented minors in an earlier suit where the Will's validity was specifically adjudicated and upheld. Later, in another civil suit, Surmukh Singh (appellant no.1) referred to the suit property as inherited by Debo from Bishan. Such contradictory stances undermined the credibility of the appellants' claims, reinforcing the principle that a party cannot approbate and reprobate.
The High Court found no merit in the contentions raised by the appellants-plaintiffs. The findings of the trial Court and the First Appellate Court were affirmed, as they did not suffer from any illegality, perversity, or error of law warranting interference. Consequently, the Regular Second Appeal was dismissed, and the judgments and decrees of the lower courts were upheld, validating the Will and Smt. Debo's claim to the property.
This judgment serves as a comprehensive guide on several critical legal fronts:
For legal professionals and students, understanding the interplay of these principles, as meticulously applied in this **property dispute** ruling concerning the **validity of will**, is crucial for navigating complex inheritance and property matters.
All information provided in this analysis is for informational purposes only and does not constitute legal advice. While efforts have been made to ensure accuracy, readers should consult with a qualified legal professional for advice pertaining to their specific circumstances.
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