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2000 DIGILAW 103 (PNJ)

Sohan Singh And Anr. v. Bakhshish Kaur And Ors.

2000-01-31

IQBAL SINGH

body2000
Judgment Iqbal Singh, J. 1. Plaintiff Gurmail Singh alias Gholi (since deceased and represented by respondent Nos. 1 to 3 in this appeal) filed the present suit for declaration with the consequential relief of injunction in respect of the property in dispute against Taro widow of Rawal Singh (since deceased and represented by the appellants in this appeal) and others. In other to understand the facts of the case, the pedigree table of the parties to the suit is given as under:- Daulu | ------------------------------------------------------------------------- | | | Ran Singh Ishar Singh Inder Singh (Dalip (died 18/19 Kaur widow) years ago) -------------------------------------------------------------------------------- | | | | | Rawal Singh Gurmail Babu (died Chanan Kaur | (Taro widow) alias 18/19 years (dead) Gurdas | Gholi ago) Singh (dead) Tej Kaur (Dead) Teja Singh -------------------------------------------------------------------------------- | | | | | | | | Malkiat Sohan Bilu Biro Surinder Manjit | Singh Singh (son) (dau- Kaur Kaur | (son) (son) ghter (daughter) | ---------------------------------------- | | | Surjit Iqbal Manjit Singh Singh Kaur (son) (son) (daughter) 2 Ishar Singh as well as Babu died issueless and wifeless about 18/19 years ago. Ran Singh and Rawal Singh had pre-deceased Ishar Singh and Babu. Thus, estate of Babu and Ishar Singh devolved upon the plaintiff. Chanan Kaur and Tej Kaur being the nearest heirs of both these deceased. Chanan Kaur died about three years ago and Tej Kaur died about nine years ago, leaving behind defendant Nos.2 and 3 and defendant Nos.4 to 7 as their legal heirs, respectively. Dalip Kaur is widow of Inder Singh and defendant Nos. 9 to 12, who are sons and daughters of deceased Rawal Singh, are co-sharers in the suit property. It has been pleaded that defendant No.l got mutation No.5531 sanctioned in her name regarding the share of Ishar Singh in the suit property on the basis of forged and fictitious will dated 13.4.1962 on 19.6.1987. Similarly, she got mutation No.5532 sanctioned in her name regarding the share of Bar5"wn the suit land on the basis of a forged and fictitious Will dated 25.6.1966 vide order dated 19.6.1987. It has been averred in the plaint that both these mutations were sanctioned wrongly in the absence of the plaintiff by marking his presence at the time of sanctioning of the mutations although he was never present at that time and was having no notice of the same. It has been averred in the plaint that both these mutations were sanctioned wrongly in the absence of the plaintiff by marking his presence at the time of sanctioning of the mutations although he was never present at that time and was having no notice of the same. Thus, these mutations do not affect the ownership rights of the plaintiff regarding his share in the estate of deceased Ishar Singh and Babu and is owner in possession of his share. On coming to know about the sanctioning of the mutations in the name of defendant No.l, the plaintiff contacted and asked her to admit his case, but to no effect. Hence, the present suit was filed. 3. Notice of the suit was given to the defendants. Only defendant Nos. 1, 8, 9, 10, 11 and 12 came forward to contest the claim of the plaintiff. They filed a joint written statement. It was admitted by them that Ishar Singh and Babu died issueless and wifeless in the year 1969. Denying the other averments in the plaint, it was pleaded that Ishar Singh executed a valid Will according to law with sound disposing mind in favour of Smt. Taro, defendant No.1 on 13.4.1962. Similarly, Babu executed a valid Will dated 25.6.1966 in favour of defendant No. l with sound disposing mind. Defendant No. 1 entered into possession of the suit land left by them and the mutations have correctly been sanctioned in her favour. The plaintiff never raised any objection at the time of said mutations. It was also pleaded that suit of the plaintiff is time barred. 4. On the pleadings of the parties, the trial Court framed the following issues besides that of relief:- "1. Whether the plaintiff is entitled to l/3rd share in the suit land? If so, its effect? OPP. 2. Whether the mutations No.5531 and 5532 sanctioned on 19.6.1987 are illegal and void? If so, its effect? OPP. 3. Whether Babu has executed a valid will dated 25.6.1966 in favour of defendant No.l in sound disposing mind? If so, its effect? OPD. 4. Whether Ishar Singh executed a valid will in sound disposing mind in favour of Taro defendant No.l on 13.4.1962? If so, its effect? OPD." Under issue No.1, the trial Court held that the plaintiff has total 2/15 shares in the suit property and decided this issue accordingly. If so, its effect? OPD. 4. Whether Ishar Singh executed a valid will in sound disposing mind in favour of Taro defendant No.l on 13.4.1962? If so, its effect? OPD." Under issue No.1, the trial Court held that the plaintiff has total 2/15 shares in the suit property and decided this issue accordingly. Issue No.2 was decided against the defendants and in favour of the plaintiff. Issue Nos.3 and 4 were discussed together and were also answered against the defendants and in favour of the plaintiff. In view of its findings on the afore-mentioned issues, the trial court decreed the suit of the plaintiff to the effect that he is owner to the extent of 2/15 shares only of the entire suit land measuring 85 kanals 5 marlas detailed and described in the heading of the plaint and the mutation Nos.5531 and 5532 are null and void. The plaintiff was further held entitled to the consequential relief of injunction restraining the defendant No.1 from alienating the share of the plaintiff in the suit land. 5 Aggrieved against the judgment and decree passed by the trial Court, the defendant-appellants went in appeal before the lower appellate Court and the same was also dismissed. 6. In this Regular Second Appeal, the defendant-appellants have challenged the judgment and decree passed by the lower appellate Court. 7. I have heard Mr. K.S. Dadwal, learned counsel for the appellants and Mr. Parveen Kumar, learned counsel for the respondents and have gone through the records of the. case. 8. Both the Courts below have returned concurrent findings of fact that the defendants have failed to prove the execution of the Will dated 13.4.1962 Exhibit D.1 and Will dated 25.6.1966 Exhibit D.2. It is also worthwhile to note that the testators of both these Wills had died in the year 1969 and the Wills were produced for the first time for mutation in the year 1987. This is a Suspicious circumstance which remains unexplained on the record. Gurnam Singh (DW2), was examined to prove the Wills Exhibit D.1 and D.2. He stated that Amar Singh (since deceased), who scribed both these Wills and also attested one of the Wills, was his grandfather in relation and that he identifies his (Amar Singhs) signatures as he had been seeing him writing and signing. Gurnam Singh (DW2), was examined to prove the Wills Exhibit D.1 and D.2. He stated that Amar Singh (since deceased), who scribed both these Wills and also attested one of the Wills, was his grandfather in relation and that he identifies his (Amar Singhs) signatures as he had been seeing him writing and signing. A scribe of the Will cannot be an attesting witness of the Will also unless he signs the documents with an intention of attesting the same. Mela Singh and Hazara Singh, attesting witnesses of the Will dated 13.4/1962 (Exhibit D.1) and Bhag Singh, attesting witness of the Will dated 25.6.1966 (Exhibit D.2) have died. Gurnam Singh (D.W.2) is not a real relation of Amar Singh (deceased) and has not stated anything as to how he is conversant with the handwritirig of Amar Singh. No effort was made by the defendants to prove the signature of the other attesting witnesses of both the Wills, namely, Bhag Singh, Hazara Singh and Mela Singh. Once the Wills stand discarded, the mutation Nos.5531 and 5532, which were sanctioned on the basis of the aforesaid wills become null and void and it has been rightly so held by both the Courts below. Thus, the plaintiff has rightly been held entitled to 2/15 shares in the suit property by way of inheritance to the estate of Daulu. The learned counsel for the appellants could not refer to anything from the record to point out that the findings arrived at by both the Courts below are not based on evidence or, in any way, are perverse requiring interference in Regular Second Appeal. For the aforesaid reasons, I do not find any merit in this appeal and the same is hereby dismissed.