Punjab & Haryana HC Upholds Will in Favour of Woman Who Cohabited With Testator, Rejects Caste-Based Karewa Marriage Challenge
The High Court dismissed a second appeal challenging a 1976 Will and a consent decree, holding that long cohabitation and service rendered to a sonless proprietor suffice to sustain a testamentary disposition under general custom, regardless of whether a valid Karewa marriage was proved.
The High Court of Punjab & Haryana at Chandigarh, in a Regular Second Appeal that had remained pending since 1992, dismissed the suit of the appellants-plaintiffs who had sought possession of agricultural land in Village Sankhera, Tehsil Jagadhri. Justice Harkesh Manuja, sitting singly, affirmed concurrent judgments of the trial Court dated 7 December 1987 and the First Appellate Court dated 17 July 1991, both of which had rejected the plaintiffs’ challenge to a Will executed in 1976 by the deceased Bishan Singh in favour of Smt. Debo, and to a consent decree of 1978 by which half the suit land had passed to her. The court found no illegality, perversity, or error of law warranting interference. The decision turns on the proof of Wills under Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, the presumption of marriage from long cohabitation under Section 114 of the Evidence Act, and the general customary entitlement of a sonless proprietor to provide for a person who has rendered service to him.
The Dispute Before the High Court
Bishan Singh alias Bishna owned agricultural land measuring 23 bighas 19 biswas comprised in Khewat No. 117, Khasra Nos. 628 to 631, 869/633, 634 and 635, situated in Village Sankhera, Tehsil Jagadhri. The plaintiffs — Surmukh Singh and others — claimed that this land was ancestral in the hands of Bishan Singh qua themselves and their deceased father Beli Ram, who was the real brother of Bishan Singh. They pleaded that Bishan Singh was unmarried, died issueless on 24 August 1979, and had no right to bequeath or transfer the property.
According to the plaint, Bishan Singh had executed two Wills at different points in time: an earlier one in favour of his nephews Hukam Chand and Kuldip Chand (defendant Nos. 2 and 3), and a later one dated 15 March 1976 in favour of Smt. Debo (defendant No. 1), whom the plaintiffs refused to accept as his legally wedded wife. The plaintiffs also challenged a consent decree passed in Civil Suit No. 397 of 1977 on 22 March 1978, by which half the suit land had been transferred in Debo’s favour during Bishan Singh’s lifetime. They alleged that Bishan Singh lacked a sound mind at the time of the Will, that Debo was not his wife, and that, being a Jat governed by the general custom of Zamindars, he could not alienate ancestral immovable property in the presence of collaterals.
During the pendency of the suit, Smt. Debo sold a portion of the suit land to Zora Singh and Nasib Singh (defendant Nos. 4 and 5) for a consideration of Rs. 30,000. They defended as bona fide purchasers without notice, claiming protection under Section 41 of the Transfer of Property Act, 1882. Defendant Nos. 2 and 3, being minors, admitted the material averments of the plaint through their written statement.
The trial Court framed issues covering the ancestral character of the property, the governing custom, the validity of the Will, Debo’s status as Bishan Singh’s widow, the validity of the decree, estoppel, and whether the suit was barred under Order 2 Rule 2 of the Code of Civil Procedure. Both Courts below dismissed the suit, and the plaintiffs filed the present Regular Second Appeal.
The Legal Issues Raised
Before Justice Harkesh Manuja, three broad challenges were pressed on behalf of the appellants-plaintiffs.
First, that no valid Karewa marriage could have been performed between Bishan Singh, a Jat, and Smt. Debo, who belonged to the Rajput community. Counsel relied on a 2017 decision of the same court in Karan Singh (since deceased) through his LRs v. Bhagwani (since deceased) through her LRs (RSA No. 1625 of 1994), which had held that Karewa under customary law can only be performed with a relative of the previous husband and that no text or document recognised inter-caste Karewa between a Jat male and a woman of another caste in District Sonepat.
Second, that in an earlier Civil Suit No. 368 of 1979 titled Hukam Chand v. Debo, Smt. Debo herself appeared as DW-1 and stated she was previously married to one Chattar Singh, while her brother Sunder appeared as DW-2 and deposed that Debo was married to one Tulsi Ram. Both statements were proved on record as Exhibit P-12 and Exhibit P-13. Since Debo’s prior marriage was thus established and there was no evidence of a valid divorce, the plea of Karewa marriage with Bishan remained unproved.
Third, that the Will dated 15 March 1976 (Exhibit D-1) was surrounded by suspicious circumstances: one attesting witness Lal Chand (DW-2) was a resident of Village Ganoli and not of Village Sankhera where Bishan Singh permanently resided, and Debo herself accompanied Bishan at the time of execution of the Will along with her brother Sunder, thereby allegedly influencing the testator.
Respondent Nos. 4 and 5, the purchasers, countered that the Will’s validity had already been adjudicated in Civil Suit No. 368 of 1979, where Beli Ram — the father of the present appellants and the person who had represented the minor defendant Nos. 2 and 3 therein — appeared as PW-1 and the court specifically framed and decided the question of validity of the Will in Debo’s favour. They further argued that the consent decree of 1978, by which half the suit land was transferred to Debo with Bishan Singh himself describing her as his wife, had attained finality and could not be collaterally challenged. They also relied upon the Supreme Court’s decision in Mohinder Singh (D) Thr. LRs & Ors. v. Mal Singh (D) Thr. LRs & Ors. (Civil Appeal No. 1731 of 2009, decided 9 March 2022) for the proposition that even if the matrimonial relationship were not proved, a testamentary disposition by a person who was being served by another is valid irrespective of the nature of that relationship.
How the Court Reasoned
Validity of the Will
Justice Harkesh Manuja began by restating the settled legal position: a Will must be proved in the manner required by Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, and any suspicion surrounding its execution must be real and substantial, not fanciful or speculative. The court cited the Supreme Court’s exposition in Murthy v. C. Saradambal, reported as 2022 (3) SCC 209.
On the facts, DW-2 Lal Chand deposed that the Will was scribed by Geeta Ram at Jagadhri at Bishan Singh’s instance, was read over and explained to him, that Bishan Singh affixed his thumb-impression — a valid mode of execution under Section 63(a) — and that Lal Chand himself signed as attesting witness in Bishan’s presence. The Will was also attested by Shri B.R.S. Caushish, Advocate and Notary, whose endorsement appeared on the document itself. The court found that DW-2’s testimony covered attestation by both witnesses, satisfying the requirement laid down by the Supreme Court in V. Kalyanaswamy (D) by LRs v. L. Bakthavatsalam (D) by LRs, 2020 SCC OnLine SC 584: that the one attesting witness examined must depose not merely to his own attestation but also to that of the other attesting witness.
On the non-examination of the scribe, the court held that the examination of a scribe has never been treated as mandatory, because a scribe’s function is confined to preparing the document and is distinct from that of an attesting witness. It relied on the Supreme Court’s reasoning in Chinu Rani Ghosh v. Subhash Ghosh (Civil Appeal No. 14286-14286 of 2024 @ SLP(C) No. 23721 of 2022), which drew precisely that distinction. Once DW-2’s testimony established due execution and attestation, the omission to examine the scribe did not detract from the sufficiency of proof.
As to the alleged suspicious circumstances, the court held that the mere fact that Lal Chand (DW-2) resided in a neighbouring village rather than in Village Sankhera was not, by itself, a suspicious circumstance sufficient to displace the presumption of due execution attached to a registered Will, especially when there was no allegation of any disqualification of that witness. Similarly, the presence of the beneficiary or her relatives at or about the time of execution did not, without more, amount to undue influence. The burden of proving undue influence, fraud, or coercion lay on the party contesting the Will, and no such proof was brought on record. The court relied on the Supreme Court’s observations in Pentakota Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors., 2005 (8) SCC 67, read with Sridevi & Ors. v. Jayaraja Shetty & Ors., (2005) 2 SCC 784, and on P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, AIR 1995 SC 1852. The Will dated 15 March 1976 (Exhibit D-1) was accordingly held to be valid in law.
Status of Smt. Debo as Wife and the Finality of the 1978 Decree
On the question of Debo’s marital status, Justice Harkesh Manuja noted that in the judgment and decree dated 22 March 1978 passed in Civil Suit No. 397 of 1977 (Exhibits D-8 and D-9), Debo was recorded as the wife of Bishan Singh, and that decree by which half the suit land stood transferred to her was suffered by Bishan Singh himself during his lifetime without demur. Bishan Singh never disputed the description of Debo as his wife in the 1978 decree, never sought to have it set aside on the ground that she was not his wife, and never challenged it independently. The decree had attained finality long ago and could not be assailed collaterally in the present proceedings.
Beyond the decree, the court observed that PW-1 Beli Ram himself admitted in his deposition that Smt. Debo had been visiting Bishan Singh’s house for a long period and had been serving him, and that DW-3 Karan Singh supported the position that Bishan and Debo used to reside together as husband and wife. Relying on the Supreme Court’s decision in Kattukandi Edathil Krishnan and another v. 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, which can be rebutted only by satisfying a heavy burden. That burden was not discharged.
In these circumstances, the court held that the Karewa marriage argument, even if accepted in law, did not require independent examination on the facts: the matter had already attained finality between the parties through the 1978 decree and the Will of 1976. It further held, following the Supreme Court’s reasoning in Mohinder Singh, that a testamentary disposition by a sonless proprietor in favour of a person who has rendered service and resided with him does not stand or fall on proof of a valid matrimonial tie. Long cohabitation and rendition of personal service constitute sufficient and valid consideration for such a disposition in law.
The Conduct of the Appellants and Issue of Approbation
Justice Harkesh Manuja also addressed the conduct of the appellants’ predecessors as a distinct ground. Beli Ram, the father of the present appellants and their original predecessor in interest, represented the minor defendant Nos. 2 and 3 as their guardian in Civil Suit No. 368 of 1979, which was a suit for permanent injunction against Debo from alienating the suit property. Although that suit was not filed by Beli Ram in his personal capacity, the court therein framed the specific question of the validity of the Will dated 15 March 1976 and adjudicated it in Debo’s favour. Beli Ram appeared as PW-1 in those proceedings, and it could not be said that the adjudication was not within his knowledge.
Additionally, in Civil Suit No. 167 of 1981, the first appellant Surmukh Singh himself described the suit property in the plaint (Mark-B) as having been “acquired by the vendor through inheritance from her allegedly late husband namely Bishan.” The court observed that a party that has acknowledged the vendor’s title as flowing through inheritance from her husband in one proceeding cannot subsequently deny both the Will and the marital relationship that underpins that title. The appellants could not be permitted to approbate in one proceeding and reprobate in another.
Custom and Ancestral Character of the Property
The court assumed, for the sake of argument, that the suit land was ancestral in Bishan Singh’s hands qua the plaintiffs. Even on that assumption, the court held that the general custom did not bar all alienations by a Jat proprietor. Relying on this court’s earlier decision in Nathu Ram and others v. Jug Lal (Died) and represented by his LRs Atma Ram son of Jug Lal, reported as 1981 PLR 754, Justice Harkesh Manuja held that while Wills in respect of ancestral immovable property may not find general recognition under custom, the general custom 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 service to him, treating such a person analogously to a near agnate for that limited purpose.
No evidence was led by the appellants to displace the existence of that exception or to establish a rigid custom that excluded it. Bishan Singh, admittedly issueless, was entitled under the general custom to provide for Debo, who had resided with him and rendered service to him. The customary objection did not, by itself, invalidate the disposition — particularly when the unchallenged decree of 1978 had already given effect to the transfer of half the suit land, and the courts below had concurrently upheld the position.
Outcome
Justice Harkesh Manuja found no merit in any of the contentions raised by the appellants-plaintiffs. The findings of the trial Court and the First Appellate Court were held to be free from illegality, perversity, or error of law warranting interference in a Regular Second Appeal.
The Regular Second Appeal was dismissed. The judgment and decree dated 17 July 1991 of the Additional District Judge, Ambala (First Appellate Court), affirming the judgment and decree dated 7 December 1987 of the Additional Senior Sub Judge, Jagadhri (trial Court), were upheld. All pending applications in the appeal were disposed of as a consequence of the main appeal being decided. The judgment was reserved on 17 April 2026 and pronounced on 6 July 2026. It was marked as a speaking and reasoned judgment and as reportable.