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2014 DIGILAW 102 (PNJ)

Surinder Singh and Anr. v. Balbir kaur @ Jasbir Kaur

2014-01-13

RAKESH KUMAR GARG

body2014
Rakesh Kumar Garg, J. Mehar Singh, father of the plaintiff-appellants, filed suit for declaration to the effect that he was owner in possession of 3/4th share of the suit property on the basis of natural succession as earlier the suit property was in the ownership of his brother Hamir Singh who died leaving behind the plaintiff as his only legal heir. It was further averred in the plaint that defendant No. 1 has propounded a Will in her favour which was not legal. However, the suit was contested by defendant No. 1 stating that Hamir Singh executed a valid and registered Will on 20.2.1997 in her favour with his free will and consent during his lifetime. He used to reside with her and she used to look after him and provide all daily kinds of need and she was in possession of the share of deceased Hamir Singh. Even the mutation of the said Will was sanctioned in her favour on the basis of the Will. 2. Defendant No. 2 appeared and filed separate written statement raising various preliminary objections. On merits, it was admitted that Hamir Singh was the real brother of the plaintiff. Remaining averments made in the plaint were denied and ultimately, prayer for dismissal of the suit was made. 3. On the pleadings of the parties, the following issues were framed: 1. Whether plaintiff is owner in possession of 3/4th share of the land fully detailed in the heading of plaint? OPP 2. Whether plaintiff is entitled to declaration, as prayed for? OPP 3. Whether plaintiff is entitled to injunction, as prayed for? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether the suit of plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD 6. Whether suit is not properly valued for the purpose of court fee & jurisdiction? OPD 7. Whether plaintiff has got no locus standi to file the present suit? OPD 8. Whether Hamir Singh executed a registered Will in favour of defendant No. 1? If so, its effect? OPD 9. Relief. 4. The trial Court vide impugned judgment and decree dated 13.5.2010 partly decreed the suit of the plaintiff for declaration to the effect that he was owner in possession of 1/4th share in the suit land. OPD 8. Whether Hamir Singh executed a registered Will in favour of defendant No. 1? If so, its effect? OPD 9. Relief. 4. The trial Court vide impugned judgment and decree dated 13.5.2010 partly decreed the suit of the plaintiff for declaration to the effect that he was owner in possession of 1/4th share in the suit land. Consequential relief of permanent injunction was also granted restraining the defendants from alienating/transferring/disposing of above mentioned share of the plaintiff in any manner. However, claim of the plaintiff qua the property of Hamir Singh was declined. 5. Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the appellants being LRs of Mehar Singh-plaintiff filed an appeal before the First Appellate Court seeking further relief as claimed in the civil suit. However, vide impugned judgment and decree dated 10.3.2012, the findings on all the issues of the trial Court were upheld and resultantly, the appeal was dismissed. 6. Still not satisfied, the appellants have approached this Court submitting that the following substantial questions of law arise in this case: (a) Whether the suit of the plaintiffs-appellants can be partly decreed especially when the earlier suit claiming the same relief which was filed by defendant/respondent No. 1 has been withdrawn? (b) Whether the defendant/respondent No. 1 is estopped from setting up the said Will and basing her claim on the said Will especially when she had earlier withdrawn the suit claiming the same relief? (c) Whether the Will in question whereby other legal heirs have not been mentioned, can be said to be surrounded by suspicious circumstances? (d) Whether the execution of four Wills by the executor in itself is a suspicious circumstance? (e) Whether both the ld. Courts below have misread and misconstrued the evidence? (f) Whether the impugned judgments and decrees passed by both the Ld. Courts below are based upon surmises and conjectures? 7. At the outset, it may be noticed that the dispute in this case is with regard to estate of Hamir Singh. Plaintiff-Mehar Singh had claimed his share on the basis of natural inheritance being brother whereas defendant No. 1, who is the daughter-in-law of the plaintiff, had set up a registered Will dated 20.2.1997 in her favour executed by Hamir Singh. 8. Plaintiff-Mehar Singh had claimed his share on the basis of natural inheritance being brother whereas defendant No. 1, who is the daughter-in-law of the plaintiff, had set up a registered Will dated 20.2.1997 in her favour executed by Hamir Singh. 8. Both the Courts below on the basis of evidence on record, have recorded a concurrent finding that the Will in question stands proved as required under the law and the same was not surrounded by suspicious circumstances. Hence, the claim of plaintiff-Mehar Singh with regard to estate of Hamir Singh was declined. The pith and substance of the substantial questions of law, as framed in the grounds of appeal, also suggest that only dispute in this case is whether the Will dated 20.2.1997 was executed by Singh in favour of defendant No. 1 legally. Learned counsel for the appellants has vehemently argued that it was the fourth Will of the deceased and this fact itself is good enough to return a finding in favour of the appellants to the effect that the executant was not in sound disposing mind while executing the said Will and on the basis of the aforesaid finding, the appellants were entitled to the relief claimed. 9. The argument raised is without any merit. There is nothing on record to show that the executant was not in sound disposing mind while executing the Will. It may further be noticed that though plea has been raised with regard to the unsound mind of the executant yet no evidence has been brought on record by the appellants to prove the aforesaid fact. Further, it is not in dispute that the Will in question is a registered document and a presumption is drawn in favour of respondents with regard to its valid execution. 10. In view thereof and the concurrent findings recorded, this Court finds no merit in this appeal. 11. No substantial questions of law, as raised, arises in this appeal. Dismissed.