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2003 DIGILAW 1538 (PNJ)

Nachhattar Singh v. Jangir Singh

2003-11-12

K.C.GUPTA

body2003
Judgment K.C.Gupta, J. 1. The Regular Second Appeal has been instituted by the defendant, Nachhattar Singh and another, against judgment and decree dated 25.5.2001 passed by Additional District Judge, Sangrur (Camp at Barnala), whereby the appeal was accepted with cost and judgment and decree dated 27.9.1997 passed by the Civil Judge (Junior Division), Barnala, was set-aside and the suit of respondent No. 1, Jangir Singh, for joint possession of land except land comprised in Khasra Nos. 453/7(8-0), 453/3/2, 4/2, 859/3(2-0), 6(2-0), 397/1/3(3-8) and 2/6(4-0) was decreed. 2. Briefly stated, the facts are that Bhan Singh was the owner in possession of the suit land and he expired on 4.9.1995 at Village Sehna (Sub Division Barnala), Jangir Singh, respondent No. 1 (plaintiff) is the son of Gurdit Singh. Gurdit Singh and Bhan Singh were real brothers and were sons of Partap Singh. In fact, Partap Singh had four sons from the loins of Smt. Ram Kaur, namely, Gurdit Singh, Chand Singh, Jawala Singh and Bhan Singh. 3. It was next averred that Bhan Singh was unmarried and he died issueless. Jangir Singh, respondent No. 1, being his brothers son, was the only legal heir to succeed to his property and, thus, he became owner of the suit property after the death of Bhan Singh. However, the appellants and respondent Nos. 2 to 4 (defendant Nos. 1 to 5) illegally and forcibly took possession of the land in dispute, to which they were not entitled. With these allegations, the suit for possession of the suit land was filed. 4. The appellants and respondent Nos. 2 to 4 contested the suit. They took certain preliminary objections that Jangir Singh, respondent No. 1 (plaintiff) had no locus standi to file the suit, that the suit was not maintainable in the present form; that respondent No. 1 was estopped by his act and conduct to file the suit; that the suit was bad for misjoinder and non-joinder of necessary parties and that the suit was time barred. On merits, they denied the allegations of respondent No. 1 and stated that Bhan Singh was the owner of the suit land and he had given the suit land to them through family settlement and also transferred it in their favour through decree dated 19.7.1990 passed in civil suit No. 115 dated 17.2.1990. On merits, they denied the allegations of respondent No. 1 and stated that Bhan Singh was the owner of the suit land and he had given the suit land to them through family settlement and also transferred it in their favour through decree dated 19.7.1990 passed in civil suit No. 115 dated 17.2.1990. They next stated that Bhan Singh resided with Nand Kaur, widow of Chand Singh and also with his nephew i.e. defendant Nos. 1 to 4 and they served him with dedication and performed his last ceremonies on his death. They next stated that the name of Bhan Singh was entered in the ration card alongwith them and in lieu of the service rendered by them, Bhan Singh executed registered will dated 9.1.1987 of his free will in favour of Nand Kaur, widow of Chand Singh, who was the sister-in-law of Bhan Singh. They next stated that after the death of Partap Singh, his widow Ram Kaur lived with Babu Singh @ Bhjaja Singh as his wife, who was real brother of Partap Singh and out of the said wedlock, Hardam Singh and Nand Kaur were born and in the presence of Hardam Singh, Jangir Singh was not the natural heir of Bhan Singh. They denied the other allegations of respondent No. 1. Consequently, the following issues were framed:- "1. Whether the plaintiff is entitled to joint possession in the suit land as alleged in the plaint? OPP 2. Whether the plaintiff has no locus standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Whether the defendants are entitled to special costs of Rs. 5000/- as the suit is frivolous in the knowledge of the plaintiff? OPD 7. Relief." The parties adduced their evidence. 5 After hearing learned counsel for the parties, the Civil Judge (Junior Division), Barnala, vide judgment dated 27.9.1997, dismissed the suit of respondent No. 1, Jangir Singh by holding under issue No. 1 that Bhan Singh lived with the appellants and other respondents (respondent Nos. OPD 7. Relief." The parties adduced their evidence. 5 After hearing learned counsel for the parties, the Civil Judge (Junior Division), Barnala, vide judgment dated 27.9.1997, dismissed the suit of respondent No. 1, Jangir Singh by holding under issue No. 1 that Bhan Singh lived with the appellants and other respondents (respondent Nos. 2 to 4) and served him and in lieu of the service rendered by them, Bhan Singh had executed valid will in favour of Nand Kaur and had also transferred his land by way of decree in favour of the appellants and respondent Nos. 2 and 3 and the said decree was a valid decree and as such Issue No. 1 was decided against respondent No. 1. Under Issue No. 2, it was held that respondent No. 1 had no locus standi to file the suit; under Issue No. 3, it was held that the suit was not maintainable in the present form; under Issue Nos. 4 and 5, it was held that respondent Nos. 2 to 4 and the appellants had failed to prove that respondent No. 1 was estopped by his act and conduct to file the suit and further that the suit was bad for non-joinder of necessary parties. Consequently, these issues were decided against the appellants and respondent Nos. 2 to 4. Issue No. 6 was not pressed during the arguments and as such, this issue was decided in favour of respondent No. 1. Consequently, the suit was dismissed with costs. 6. Aggrieved by the said judgment and decree, the plaintiff (respondent No. 1) filed an appeal, which was accepted by Additional District Judge, Sangrur (Camp at Barnala) vide judgment dated 25.5.2001, by holding that the appellants and respondent Nos. 2 to 4 had failed to establish that Bhan Singh had executed any will during his life time in favour of Nand Kaur. He further held that the decree passed in Civil Suit No. 115 dated 17.2.1990 was null and void for want of registration and result of fraud and mis-representation and if the will and the decree are ignored, then respondent No. 1 had preferential right to inherit the property of Bhan Singh, being brothers son. It was held that the suit was within time as during the life time of Bhan Singh, respondent No. 1 had no right to challenge the impugned decree. 7. It was held that the suit was within time as during the life time of Bhan Singh, respondent No. 1 had no right to challenge the impugned decree. 7. Aggrieved by the said judgment and decree dated 25.5.2001, the present appeal has been instituted by Nachhattar Singh and Gurcharan Singh, some of the defendants. 8. I have heard Mr. Arun Jain, Advocate, for the appellants, Mr. Ashok Singla, Advocate, for respondent No. 1, Mr. Sudhir Pruthi, Advocate, for respondent Nos. 2 to 4 and carefully gone through the file. 9. It is an admitted fact that Partap Singh was married to one Ram Kaur and Partap Singh had four sons from the loins of Ram Kaur, namely, Gurdit Singh, Chand Singh, Jawala Singh and Bhan Singh, Jangir Singh, respondent No. 1 (Plaintiff) is the son of Gurdit Singh son of Partap Singh. So, he is the brothers son of Bhan Singh. It is further stated that after the death of Partap Singh, Ram Kaur started living with Babu Singh @ Bhaja Singh as his wife, who was the real brother of Partap Singh and from the loins of Babu Singh @ Bhaja Singh, Ram Kaur had given birth to one son, Hardam Singh and one daughter, Nand Kaur and Hardam Singh was still alive. The further case of the appellants is that Bhan Singh used to reside with them and they used to serve him with devotion and out of love and affection, he had executed valid will dated 9.1.1987, Ex.D-1, in favour of Nand Kaur wife of Chand Singh son of Partap Singh. 10. Now, the first question to be seen is whether the said will has been duly proved. According to Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act, the will is required to be attested by two witnesses and one attesting witness is required to be produced for proving its due execution. The said will had been attested by Pala Singh, Lambardar and Gurdial Singh. However, none of the attesting witnesses had been examined to prove its due execution. It is not the case that both the witnesses are dead or are not capable of giving evidence or their whereabouts are not known. The said will had been attested by Pala Singh, Lambardar and Gurdial Singh. However, none of the attesting witnesses had been examined to prove its due execution. It is not the case that both the witnesses are dead or are not capable of giving evidence or their whereabouts are not known. The appellants, in order to prove its due execution, had examined one Clerk from the Office of Sub Registrar as DW-3, DW-2 scribe of the will had also been examined. However, both these witnesses cannot be held to have proved due execution of the will. Thus, it cannot be held that Bhan Singh had executed a valid will in favour of Smt. Nand Kaur, during his life time. Thus, the will has to be ignored. 11. The further case of the appellant and respondent Nos. 2 to 3 is that they had filed Civil Suit No. 115 of 17.2.1990 against Bhan Singh in which Bhan Singh had appeared and had made a statement, admitting their claim on the basis of family settlement and consequently, judgment, Ex.D-2, was passed. Admittedly, the appellants and respondent Nos. 2 and 3 are the sons of Hardam Singh son of Babu Singh, who are not the members of family of Bhan Singh and as such, there is no question that they had effected family settlement with Bhan Singh during his life time. It has been observed by the Hon ble Apex Court in Bhoop Singh v. Ram Singh, (1996-1) P.L.R. 559, that where the compromise decree creates for the first time right, title or interest in immovable property of the value of Rs. 100/- or upwards in favour of any party to the suit, the said decree or order would require compulsory registration. Since, the appellants and respondent Nos. 2 and 3 did not have any antecedent title or interest in the suit land and the interest or title was created in their favour for the first time on the passing of the decree vide judgment Ex.D-2 regarding the property of the value of more than Rs. 100/-, so, it required compulsory registration. For want of registration, the said judgment, Ex.D-2 and decree Ex.D-3/A did not confer any valid title upon the appellants and respondent Nos. 2 and 3 regarding the suit land. 12. 100/-, so, it required compulsory registration. For want of registration, the said judgment, Ex.D-2 and decree Ex.D-3/A did not confer any valid title upon the appellants and respondent Nos. 2 and 3 regarding the suit land. 12. Counsel for the appellants further contended that the decree, Ex.D-3/A was passed in the year 1990 on the basis of family settlement, which was effected between Bhan Singh, appellants and respondent Nos. 2 and 3 and Bhan Singh did not challenge the same during his life time and further if respondent No. 1 was aggrieved by the said decree, he had to approach for the relief within prescribed period of limitation but since the decree was not challenged within the period of three years, so, the suit was time barred. In my opinion, the contention of learned counsel is not tenable. Respondent No. 1 had no right to challenge the decree in the presence of Bhan Singh, which had taken place on 4.9.1995 at village Senna. The present suit was filed on 21.10.1995 i.e. within three years from the death of Bhan Singh and, therefore, it is within time. 13. If the decree and the will are ignored, then respondent No. 1 had got preferential right to succeed to the property of Bhan Singh because he, being brothers son, is a Class-II heir and falls in Entry No. IV while Nand Kaur falls in Entry No. VI of Class-II heirs and according to Section 9 of the Hindu Succession Act, heirs falling in the 1st entry shall be preferred to those in the IInd entry and so on in case of succession to the property. Thus, respondent No. 1 is a preferential heir to succeed to the property of Bhan Singh. The appellants and respondent Nos. 2 and 3 do not come under the definition of Class-II heirs. Accordingly, I hold that respondent No. 1 has got preferential right to succeed to the property left by Bhan Singh and he is entitled to joint possession of the suit land and further respondent No. 1 has locus standi to file the suit and the suit is maintainable in the present form. He is not estopped by his act and conduct to file the suit. No evidence has been led as to how the suit is bad for non-joinder of necessary parties. This issue has not been pressed by the appellants. He is not estopped by his act and conduct to file the suit. No evidence has been led as to how the suit is bad for non-joinder of necessary parties. This issue has not been pressed by the appellants. Accordingly, these issues are decided against the appellants. In view of the above discussion, the appeal fails and the same is dismissed with costs.