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2013 DIGILAW 955 (PNJ)

Sukhdev Ram v. Tirath Ram

2013-07-29

VIJENDER SINGH MALIK

body2013
JUDGMENT Mr. Vijender Singh Malik, J.:- This is a regular second appeal brought by defendant, Sukhdev Ram against the judgments and decrees passed by learned Civil Judge [Junior Division], Bathinda dated 1.3.2011 and learned Additional District Judge [Fast Track Court] Bathinda dated 18.9.2012. 2. Tirath Ram, the plaintiff filed a suit for declaration that he is owner of 13/16 share in the suit land as per Will dated 4.11.2003 executed by Roop Ram. He also sought the relief of permanent injunction restraining the defendants from alienating the share of the plaintiff in the suit land which fell to him under the Will in question. 3. The plaintiff has claimed that Roop Ram, father of the plaintiff and defendant No.1 alongwith his brother Kishore Chand had been owner of the suit property. Defendant No.2 is the son of defendant No.1 while defendant No.3 is son of the plaintiff and defendant No. 4 is the grandson of defendant No.1. Long time back, family settlement was arrived at between Roop Ram and Kishore Chand with regard to the suit property. Kishore Chand has got 6 kanals land more than his share and land measuring 151 kanals fell to the share of said Roop Ram. Roop Ram in his life time effected a family settlement under which land measuring 29 kanals was given to defendant No.1. On an earlier occasion, defendant No.1 executed a registered sale deed in favour of defendant No.6. Roop Ram had also sold land in favour of defendants No. 2 and 3. Mutations were sanctioned on the basis of those sale deeds. During his life time, Roop Ram executed a Will dated 4.11.2003 whereby he bequeathed 13/16 share of his estate in favour of the plaintiff, 2/16 share in favour of defendant No.1 and 1/16 share in favour of defendant No.2. Roop Ram died on 6.12.2003. The plaintiff approached the revenue officials for sanction of mutation, but the same was contested by the defendants and was rejected by Assistant Collector Ist Grade by holding that signatures of the deceased were taken on blank paper. The Assistant Collector Ist Grade passed the said order without taking any evidence and without giving hearing to the plaintiff. Without waiting for the period prescribed for filing appeal, defendant No.1 executed a registered mortgage deed with respect to land measuring 24 kanals in favour of defendant No.5. The Assistant Collector Ist Grade passed the said order without taking any evidence and without giving hearing to the plaintiff. Without waiting for the period prescribed for filing appeal, defendant No.1 executed a registered mortgage deed with respect to land measuring 24 kanals in favour of defendant No.5. It is claimed that since under the Will, the land fell to the share of plaintiff, the mortgage deed was not valid. He has claimed that he is in actual physical possession of the land measuring 65 kanals 14 marlas. Defendants No. 1, and 5 to 8 are threatening to alienate the share of the plaintiff taking the benefit of wrong entries in the revenue record. 4. The defendants have resisted the suit denying the execution of the Will. 5. On the pleadings of the parties, the following issues were framed by learned trial court. “1. Whether the plaintiffs is entitled to declaration and permanent injunction as prayed for? OPP 2. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Relief.” 6. Taking evidence of the parties, learned trial court came to the conclusion under issue No. 1 that the Will is genuine. Consequently, the suit succeeded and stands partly decreed declaring the plaintiff to be entitled to 13/16 share in the land measuring 78 kanals 16 marlas which was in the name of Roop Ram at the time of his death. It was also held that the mortgage deed executed by Roop Ram in favour of defendant No. 5 on 23.7.2004 would not be operative on the share of the plaintiff. Defendant No.1 was restrained from alienating the share of the plaintiff out of the joint khata. 7. The appeal preferred by Sukhdev Ram, defendant No.1 failed before learned Additional District Judge [Fast Track Court], Bathinda and has been dismissed with costs. 8. Learned counsel for the appellant, Sukhdev Ram has submitted that the Will was scribed on a blank paper having thumb impression of Roop Ram. According to him, the Will is an unregistered document. He has submitted that by way of this Will, the testator has deprived his son of his share in the property. 9. In my opinion, an unregistered Will is as good a Will as a registered Will. According to him, the Will is an unregistered document. He has submitted that by way of this Will, the testator has deprived his son of his share in the property. 9. In my opinion, an unregistered Will is as good a Will as a registered Will. In case of a Will, it has to be seen by the court that the testator was in proper state of mind. In the case in hand, it was also to be seen as to whether it was a case of scribing of the Will on a blank paper carrying the thumb impression of Roop Ram. Learned trial court has taken care to discuss the evidence threadbare and has reached a well reasoned finding that the Will is a genuine document. It is a case where the son of Roop Ram did not attend his cremation despite there being no justification for not attending the same. Learned trial court has rightly presumed that the son was not on good terms with his father. As per Sukhdev Ram himself, deceased Roop Ram was residing with the plaintiff. 11. The entire evidence has been taken care of and has been rightly analyzed to reach the finding that the Will is genuine. I do not find any defect in the Will for its being unregistered. Nothing has come on record to show that the Will was scribed on a paper bearing the thumb impression of Roop Ram after his death or that Roop Ram was not in proper frame of mind at the time of execution thereof. 12. In the aforesaid circumstances, I find no substance in the appeal. Moreover, no questions of law much less substantial questions of law appear to be arising in this appeal. Consequently, the appeal has no merit and is dismissed in limine. ---------0.B.S.0------------