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2010 DIGILAW 980 (PNJ)

Parmod Kumar v. Joginder Singh

2010-02-24

RAKESH KUMAR GARG

body2010
Judgment Rakesh Kumar Garg, J. 1 For the reasons mentioned in the application, delay of 65 days in refiling this appeal is condoned. CM stands disposed of. CM No. 11366-C of 2005 2 This is an application for condonation of delay of 9 days in filing this appeal. Notice of the application was given vide order dated 16.7.2007. No reply has been filed. For the reasons mentioned in the application, which have remained unrebutted, delay of 9 days in filing this appeal is condoned. CM stands disposed of. RSA No. 4229 of 2005 3 This is plaintiff-s second appeal challenging the judgment and decrees of the Courts below whereby their suit for joint possession of suit land with consequential relief of declaration to the effect that the Will dated 17.12.1982 and mutation No. 340 sanctioned on the basis of the aforesaid Will were null and void, was dismissed. 4 As per the pleadings, Sadhu Ram and Puran Singh, sons of Deva Singh were recorded as owners of land measuring 65 manals 8 marlas as detailed in the suit. Sadhu Ram died issueless on 24.6.1991. Puran Singh (father of Joginder Singh-defendant No. 1 and Mohinder Singh Prcdecessor-in-interest of plaintiff-appellants), was living with Mohinder Singh during his lifetime. After Mohinder Singh-s death, the plaintiffs were providing all necessities of life to Puran Singh and in a family settlement, he suffered a decree in Civil Suit No. 764 of 1993 titled as Parmod Kumar v. Puran Singh and plaintiffNo. 1 became owner in possession of the land earlier owned and possessed by Puran Singh. After Mohinder Singh-s death, plaintiffNo. 1 became exclusive owner in possession of land measuring 32 kanals 14 marlas i.e half share of the suit land which was situated towards western side of the land of Joginder Singh. Land measuring 32 kanals 14 marlas was possessed by Jognder Singh whereas he was legally entitled to retain land measuring 16 kanals 7 marlas being half share of land measuring 32 kanals 14 marlas. Joginder Singh in collusion with Revenue Authorities and on the basis of a false and fabricated Will dated 17.12.1982 allegedly executed by Sadhu Ram got mutation No. 340 sanctioned in favour of defendants No. 2 and 3. The aforesaid Will was illegal null and void and was liable to be set aside as Sadhu Ram never put his thumb impressions on the Will in the presence of witnesses. The aforesaid Will was illegal null and void and was liable to be set aside as Sadhu Ram never put his thumb impressions on the Will in the presence of witnesses. The property in the hands of Sadhu Ram was ancestral and he was not competent to Will away the same. The plaintiffs being LRs of Sadhu Ram were entitled to inherit the same to the extent of half share. Possession of the defendants on land measuring 16 kanals 7 marlas was illegal and unauthorised on the basis of false and fabricated documents. Revenue record which was wrong was not binding on the rights of the plaintiffs. The defendants were requested to hand over the vacant possession of the suit land but in vain. Hence, this suit. 5 Upon notice, the suit was contested by the defendants. They filed joint written statement raising various preliminary objections. On merits, the defendants submitted that Sadhu Ram died issueless and executed a valid Will in favour of defendants No. 2 and 3 voluntarily while in full senses. The Will was scribed on 27.9.1982 and was registered on 17.12.1982. Puran Singh was residing with the plaintiffs as well as defendants alternatively. There was no family settlement as alleged. [Defendant No. 1 had already obtained a decree for permanent injunction against Puran Singh from alienating the suit property. Dcfendant-Joginder Singh filed an application for his impleadment in the aforesaid suit but the plaintiffs fraudulently filed Suit No. 764 of 1993 without disclosing the factum of pendency of earlier suit and obtained a collusive decree which was challenged by defendant No, 1 and was pending adjudication. Mutation of the land was rightly attested in favour of defendants No. 2 and 3. The will was genuine and no fraud was played on Sadhu Ram. The revenue entries in favour of the defendants were also correct. All other allegations of the plaintiffs were denied and dismissal of the suit was prayed. 6 After hearing learned counsel for the parties and going through the record, the trial Court decided issues No. 1 to 3,4 to 9 in favour of defendants whereas issues No. 5 to 8, 10 and 11 were answered against the defendants being not pressed. Consequently, the suit was dismissed. 6 After hearing learned counsel for the parties and going through the record, the trial Court decided issues No. 1 to 3,4 to 9 in favour of defendants whereas issues No. 5 to 8, 10 and 11 were answered against the defendants being not pressed. Consequently, the suit was dismissed. 7 Feeling aggrieved with the impugned judgment and decree passed by the trial Court, the plaintiffs filed an appeal before the Lower Appellate Court which on reappraisal of evidence held that the suit land devolved upon Sadhu Ram on the death of his father Deva. He died issueless and was having no Class-I heirs at the time of his death. Thus, as per the principles of Hindu Law, he being the sole heir was entitled to dispose of his property as it was his self acquired property and therefore, there was no bar upon him to bequeath the said land by way of Will in favour of defendants No. 2 and 3. The Lower Appellate Court also noticed the evidence of DW-5 and DW-7 i e. the scribe and registration Clerk and keeping in view the totality of the circumstances, held that the Will was executed validly by Sadhu Ram in favour of defendants No. 2 and 3, and affirmed the findings of the trial Court. 8 Still not satisfied, the plaintiffs have filed the instant appeal. 9 Challenging the judgment and decrees of the Courts below, learned counsel for the appellants has vehemently argued that the land in dispute was ancestral in the hands of Sadhu Ram and he was not competent to Will it away in favour of anyone. It was further argued that the aforesaid Will has not been proved in accordance with law as none of the attesting witnesses has come forward to prove the Will yet the same has been taken to be a valid document and thus, the judgment and decrees of the Courts below are liable to be set aside. It was further argued that the aforesaid Will has not been proved in accordance with law as none of the attesting witnesses has come forward to prove the Will yet the same has been taken to be a valid document and thus, the judgment and decrees of the Courts below are liable to be set aside. On the basis of the argument, learned counsel for the appellants has submitted that the following "substantial questions of law arise in this appeal- "(i) Whether the findings given by the Courts below on issues are incorrect and suffers from material irregularities and illegality and therefore bad in law - (ii)Whether the Will dated 18.12.1981 is illegal, null and void and not binding on the rights of the appellant/plaintiff specifically when there is no authentic witness to prove it a valid document -" 10 On the other hand, learned counsel appearing on behalf of the respondents has supported the findings of the Courts below and has argued that in fact the appellants have no cause of action to file the present suit as in the presence of Joginder Singh, defendant No. 1, they can not claim the inheritance of Sadhu Ram in any manner and once that is so, they have no locus standi to challenge the Will in question. 11 I have heard learned counsel for the parties and perused the impugned judgment and decrees of the Courts below. 12 Undisputably, the suit land devolved upon Sadhu Ram on the death of his father Deva. Thus, the suit land was ancestral property in the hands of Sadhu Ram. Further, Sadhu Ram died issueless and was having no Class-I heirs at the time of his death. It is well settled that a sole surviving coparcenar is entitled to dispose of the coparcenary property as it was his separate property. Therefore, there was no legal bar on Sadhu Ram to bequeath the suit land by way of Will to Gurmail Singh and Prem Singh, respondents(defendants No. 2 and 3). Thus, the argument raised by the learned counsel for the appellants that Sadhu Ram was incompetent to Will away the suit land, being ancestral property in favour of defendants No. 2 and 3, is of no merit. Thus, the argument raised by the learned counsel for the appellants that Sadhu Ram was incompetent to Will away the suit land, being ancestral property in favour of defendants No. 2 and 3, is of no merit. 13 Even the argument raised by the learned counsel for the appellants that the Will in question has not been proved in accordance with law as no attesting witness has come forward to prove the same, is also not sustainable simply for the reason that admittedly, defendant No. 1 - Joginder Singh was alive at the time of death of Sadhu Ram and in his presence, the plaintiffs could not claim any right to inherit the property of Sadhu Ram who was admittedly his only surviving Class-II heir on the date of his death, and thus, the plaintiff-appellants had no locus standi to challenge the Will for the property in dispute. Even in the absence of Will, they could not claim the property in dispute by way of inheritance in the presence of Joginder Singh- defendant No. 1 who had a better right to inherit under the Succession Act and otherwise also, the Will in question is registered one and the registration certificate of the Registering Officer goes a long way to prove the execution of the Will and its contents, though the same is not a collusive. Thus, for the reasons aforesaid, I find no merit in this appeal. No sub-stantial question of law as argued by the learned counsel for the appellants arises in this appeal. Dismissed.