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2000 DIGILAW 511 (PNJ)

Gurmohinder Singh v. N. S. Behla

2000-05-11

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. (Oral) - Unsuccessful plaintiff has filed the present appeal and has been directed against the judgment and decree dated 24.1.2000, passed by the Additional District Judge, Amritsar, who affirmed the judgment and decree dated 19.8.1997, passed by the Civil Judge (Senior Division), Tarn Taran, who dismissed the suit of the plaintiff-appellant Manjinder Singh son of Chanan Singh, brother of the plaintiff, and Chanan Singh son of Aroor Singh. 2. The case set up by the plaintiff before the trial Court was very short that the property in question belonged to Kartar Kaur d/o Dial Singh, mother of the plaintiff and defendant No. 1. Mutation of inheritance of Kartar Kaur was attested in favour of the plaintiff and defendant No. 1. The land is still joint and has not been partitioned. Defendant No. 1, without getting the suit land partitioned, wanted to alienate the specific khasra numbers in favour of defendant No. 2, for which he has no right. 3. The suit was contested by the defendants. Defendant No. 1 stated that the suit for injunction was not legally maintainable as the suit land had already been sold by his son to the sons of defendant No. 2. Defendant No. 1 also took the plea that Kartar Kaur was the owner of the land. She executed a Will in favour of Harvinder Singh, son of defendant No. 1, who became the owner of the property by virtue of the Will. 4. Defendant No. 2 also filed a separate written statement and stated that Harvinder Singh had sold the property vide registered sale deed dated 27.5.1994 to his sons, Jorattan Singh, Jit Singh and Pritam Singh for a consideration of Rs. 1,13,000/- and the possession was also delivered to them. Defendant No. 2 also took the stand that the suit of the plaintiff was not legally maintainable and that the suit is bad for non-joinder of the necessary parties. 5. The plaintiff filed replication to the written statements of the defendants in which he reiterated his allegations made in the plaint while denying those of the written statements. The plaintiff also denied the factum of any will executed by Kartar Kaur in favour of son of defendant No. 1 and from the above pleadings of the parties, following issues were framed by the trial Court :- "1. The plaintiff also denied the factum of any will executed by Kartar Kaur in favour of son of defendant No. 1 and from the above pleadings of the parties, following issues were framed by the trial Court :- "1. Whether the plaintiff is owner of suit land after the death of deceased Kartar Kaur as alleged in para No. 1 of the plaint ? OPP 2. Whether the suit land is joint khata and is not partitioned between plaintiff and defendant No. 1 ? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP 4. Whether Kartar Kaur original owner of suit land executed will bequeathing the suit land in favour of Harvinder Singh ? OPD 5. Whether the land in dispute is sold to Chanan Singh ? OPD 6. Whether the suit in its present form is not maintainable ? OPD 7. Relief." 6. The parties led evidence in support of their case and, finally, vide judgment and decree dated 19.8.1997, the trial Court dismissed the suit of the plaintiff. 7. Aggrieved by the judgment and decree of the trial Court, the plaintiff filed an appeal before the first appellate court, who dismissed the appeal, for the reasons given in paras 11 and 12 of the impugned judgment, which read as under :- "11. From the bare perusal of the will Ex.D2 it is revealed that reason for executing the will has been given. It is mentioned that Arvinder Singh beneficiary is living with the executant Kartar Kaur and is serving him. It is further mentioned that daughter of Kartar Kaur has been married and amount has been spent on her marriage. She is leading peaceful life. It is further mentioned that Gurmohinder Singh is living separately and is not serving her. The will has been proved by the DW3. This witness has been cross-examined at length but nothing could be brought on the file to discard his testimony, so far as the submissions made by the learned counsel for the appellant to the effect that since natural heirs have been ignored and as such the will is suspicious document, that submission cannot be accepted. The will is always executed to disinherit the legal heir. Factum of the registration of the will dispels of the suspicious circumstance. The registration of document is a solemn act and has its sanctity. The will is always executed to disinherit the legal heir. Factum of the registration of the will dispels of the suspicious circumstance. The registration of document is a solemn act and has its sanctity. The sale deed Ex.D1 though executed during the pendency of the appeal could not be said to be illegal as Arvinder Singh defendant No. 1 being owner was fully within his right to execute the sale deed. 12. In view of the above discussion, finding of the learned trial Court on issues No. 1 to 3 does not call for any interference and the same stands affirmed." 8. I have heard counsel for the appellant and with his assistance have gone through the record of this case and am of the opinion that the present appeal is liable to be dismissed in limine without notice to the respondents. 9. Counsel for the appellant argued at the first instance that the frame of the suit was for a simple injunction vide which the plaintiff prayed that the defendant No. 1 should not sell any specific khasra numbers as the property was joint and, in these circumstances, the only issue which arose between the parties was as to whether the property was joint or not and whether the plaintiff is a co-owner with defendant No. 1. The counsel submitted that the other issues were redundant and any findings given by the courts below on these issues cannot be considered as binding on the plaintiff. 10. I do not subscribe to the argument of the counsel for the appellant. It is the basic law that the issues are framed when the parties are on issue on a particular question of law and facts. Specific stand of defendant No. 1 was that there was a will executed by his mother Kartar Kaur in favour of his son. This aspect of the case was challenged by the plaintiff in his replication and, in these circumstances, it was the duty on the part of the court to frame an issue with regard to the will. Specific stand of defendant No. 1 was that there was a will executed by his mother Kartar Kaur in favour of his son. This aspect of the case was challenged by the plaintiff in his replication and, in these circumstances, it was the duty on the part of the court to frame an issue with regard to the will. It was equally incumbent upon defendant No. 1 to have stated above the will otherwise if he had not taken the plea at the first instance regarding the will, perhaps an adverse inference would have been drawn against the legate under the will that the will has not been disclosed at the earlier instance and the will is surrounded by suspicious circumstances. 11. It was, then, submitted by the counsel for the appellant that the will, Ex. D-2, has not been legally proved and suspicious circumstances surrounding the will have not been removed by the propounder of the will. The counsel submitted that, in fact, the propounder/beneficiary of the will was not a party to the suit. The findings on this issue, rather, have debarred the plaintiff for all times to come to contest the will. 12. The argument is not, again, acceptable to the court. The defendant No. 1 in his written statement has stated about the title of this property by stating that the property belongs to Kartar Kaur, mother of the plaintiff and defendant No. 1, and she during her life time, had bequeathed the property in favour of son of defendant No. 1. This aspect of the case was challenged by the plaintiff, who was given full opportunity to cross-examine the attesting witness, who was examined in defence by defendant No. 1 in support of his case. The recital of the will shows that Kartar Kaur wanted to bequeath the property in favour of her grand son by ignoring the plaintiff. She was the full-fledged owner of the property and, therefore, the property has been bequeathed by her. There were no suspicious circumstances surrounding the will. The onus was discharged by the defendant and, in these circumstances, the suit of the plaintiff was rightly dismissed by the courts below. 13. No merit. Dismissed. Revision dismissed.