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2014 DIGILAW 1701 (RAJ)

Angrej Kaur v. Sukhveer Singh

2014-10-17

ARUN BHANSALI

body2014
JUDGMENT 1. - This second appeal under Section 100 CPC is directed against the judgment and decree dated 13.7.2011 passed by the Additional District Judge No. 2, Sriganganagar, whereby the judgment and decree dated 20.1.2007 passed by the Civil Judge (Jr. Div.) No. 1, Sriganganagar has been upheld. 2. The facts in brief may be noticed thus: the plaintiffs-appellants filed a suit for declaration of will dated 17.4.1991 as void and ineffective qua their interest with the averments that the plaintiffs were wife and daughter of one Jasveer Singh, who in-turn was son of Chanan Singh, who had large number of joint family property, the said properties were undivided; Jasveer Singh, husband of appellant No. 1 and father of appellant No. 2 had died on 23.12.1984 and after death of Chanan Singh on 4.11.1991, the suit property was mutated in the name of Sukhveer Singh, who was great grand son of Chanan Singh based on a will dated 17.4.1991 said to have been executed by Chanan Singh. The will was questioned essentially on the ground that the entire property was bequeathed to only great grand son and there was no reference to the plaintiffs. Further the will was got registered after death of said Chanan Singh on 4.11.1991 before Sub-Registrar at a place different from where the same was claimed to have been executed. It was also objected that the suit property being joined Chanan Singh could not have executed a will qua the joint properties. 3. During the pendency of the suit, a compromise dated 30.5.1994 was presented by the parties. However, despite filing of the compromise, the trial court fixed the matter for filing of written statement. 4. The defendant filed revision petition before this Court wherein the trial court was directed to frame issue regarding the validity of the compromise and keep in view provisions of Order 32, Rule 7 CPC. 5. A written statement was filed by the defendant defending the execution of the will and denying the allegations made in the plaint. 6. On behalf of the plaintiffs, three witnesses were examined and on behalf of the defendant, five witnesses were examined. 7. After hearing the parties, the trial court came to the conclusion that the suit property was self acquired property of Chanan Singh, on account of the allegations made it cannot be said that the will was surrounded by suspicious circumstances. On behalf of the plaintiffs, three witnesses were examined and on behalf of the defendant, five witnesses were examined. 7. After hearing the parties, the trial court came to the conclusion that the suit property was self acquired property of Chanan Singh, on account of the allegations made it cannot be said that the will was surrounded by suspicious circumstances. Regarding the execution of the compromise, the trial court came to the conclusion that as the plaintiff No. 2 was not represented by next friend, the said compromise had no effect, however, in view of its finding on the merits dismissed the suit. 8. Feeling aggrieved, the plaintiffs-appellants filed first appeal under Section 96 CPC. Along with the appeal, applications under Order 6, Rule 17 CPC and Order 41, Rule 27 CPC were filed pointing out that the plaintiffs had filed FIR against the respondent regarding the will and cognizance whereof was taken by the competent criminal court. 9. The first appellate court after hearing the parties reiterated the findings recorded by the trial court; affirmed the judgment impugned and dismissed the appeal filed by the appellants. 10. It is submitted by learned counsel for the appellants that both the courts below fell in error in dismissing the suit/appeal; it was submitted that the will was surrounded by suspicious circumstances, inasmuch as, there was no reference to the plaintiffs in the will and no reason has been indicated as to why they were deprived of the property in the will. Further the will was got registered after the death of Chanan Singh at a different place. 11. It was further submitted that the respondents did not prove that the suit property was self acquired property of Chanan Singh and the courts below did not advert to the provisions of Order 32, Rule 7 CPC and therefore, the same gives right to substantial question of law in this appeal. 12. Learned counsel for the respondent duly supported the judgments passed by both the courts below. It was submitted that the findings of fact regarding execution of will and nature of the property has been concurrently recorded by both the courts below and the same does not give right to any substantial question of law. 13. I have considered the rival submissions and perused the judgments passed by both the courts below with the record. 14. It was submitted that the findings of fact regarding execution of will and nature of the property has been concurrently recorded by both the courts below and the same does not give right to any substantial question of law. 13. I have considered the rival submissions and perused the judgments passed by both the courts below with the record. 14. It is no doubt true that the appellants-plaintiffs were deprived of any legacy by deceased Chanan Singh by way of will dated 17.4.1991 and though there is a reference to one of the sons, there is no reference to the plaintiffs in the said will. However, the said solitary fact is not sufficient to allege that the will was surrounded by suspicious circumstances. It was not the case of the plaintiffs that the will and/or the signatures/thumb impressions thereof were forged by the defendants and no evidence in this regard was led by them. Further even in the FIR, which was said to have been lodged by the appellant and cognizance was taken by the criminal court, learned counsel for the respondent submits that the order taking cognizance was quashed by the revisional court. 15. So far as the nature of suit property is concerned, the defendant produced Ex.-2 to Ex.-4 indicating the property in the name of Chanan Singh and the plaintiffs failed to produce any evidence to support her claim that the property belongs to HUF. The burden regarding the nature of the property was on the plaintiff and having failed to lead any evidence in this regard, it cannot be said that the two courts below committed any error in reaching the conclusion based on the documentary evidence available on record. 16. So far as the submission regarding applicability and implementation of Order 32, Rule 7 CPC is concerned, the learned courts below have decided the suit on its own merit and have not decided the same based on the compromise and therefore, the provisions of Order 32, Rule 7 CPC does not come into picture at all. 17. Both the courts below have recorded concurrent findings of fact, learned counsel for the appellants has failed to show any perversity in the findings recorded by the courts below. 18. Consequently, there is no substance in this appeal, the same is, therefore, dismissed.Appeal dismissed. *******