This is a regular second appeal filed by the defendants after the lower courts decreed a suit for declaration and injunction filed by the plaintiff. The High Court held that no substantial question of law arose and dismissed the appeal against the lower courts' finding that a Will was suspicious.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.4254 of 2006 (O&M)
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IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
R.S.A. No.4254 of 2006 Date of Decision: December 09, 2009
Tej Pal Singh and others
.........Appellants
Versus
Hem Lata ..........Respondents
Coram: Hon'ble Mrs. Justice Sabina
Present: Mr.Kulvir Narwal, Advocate for the appellants. None for the respondents
**
Sabina, J.
Plaintiff filed a suit for declaration with consequential relief of permanent injunction. The said suit of the plaintiff was dismissed by the Civil Judge (Senior Division) Jhajjar vide judgment and decree dated 12.2.2004. Aggrieved by the same, the plaintiff filed an appeal and the same was decreed by the Additional District Judge Jhajjar vide judgment and decree dated 12.4.2006. Hence, the present appeal by the defendants.
The case of the parties, as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment reads as under:-
“ 2. Brief facts of the case are that Smt.Hemlata, plaitniffappellant had filed a suit for declaration with consequential relief
RSA No.4254 of 2006 (O&M)
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of permanent injunction on the averments that her father Bhani Ram was owner in possession of agriculture land situate in village Bhadani, tehsil and district Jhajjar, fully detailed in para no.1 of the plaint. Bhani Ram had died in village Bhadani on 29.11.1999, leaving behind Hemlata, plaintiff-appellant as his sole legal heir. Accordingly, after the death of her father, she had succeeded to his estate. He had no son.
3.It was then averred in the plaint that the defendants had no right or connection with Bhani Ram or his property. However, they had claimed that Bhani Ram had executed a Will dated 27.10.1989 (Ex.D2) in their favour. In fact, there was no such Will and if at all the defendants were in possession of any Will, the same was illegal, null and void having no effect on the rights of the plaintiff on the grounds mentioned in para no.5 of the plaint. Hence, it was prayed that the Will (Ex.D2) and mutation (copy Ex.P5) be declared illegal, null and void. A prayer for grant of decree of permanent injunction restraining the defendants from alienating the suit land and from interfering in any manner in the possession of the plaintiff over the suit land was also made.
4.Upon notice, written statement was filed by Rohtas, defendantrespondent No.2, in which a number of preliminary objections were taken upto the effect that the plaintiff had levelled baseless and false allegations of malafides in para no.5(j) of the plaint against the Sub Registrar without impleading him as one of the defendants; and in para no.5 (d) against the witnesses and the scribe. The scribe is an Advocate. So, both the sub paras were
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liable to be ignored. On merits, it was averred that after the death of Bhani Ram, the defendants had stepped into his shoes as the former had executed a valid Will in their favour. It was admitted that the plaintiff was his daughter but it was denied that after the execution of the registered Will dated 27.10.1999 (Ex.D2), she had stepped into his shoes. It was also admitted that Bhani Ram had no male issue. But it was denied that the defendants had no right or connection with Bhani Ram or his estate. The reasons were also recorded in the register will which was read over and explained by the Sub Registrar to Bhani Ram in the presence of the witnesses. The Will was drafted by an Advocate and attested by the witnesses, who are respectable persons of the village. Mutation no.2102 (copy Ex.P5) was also legally sanctioned on the basis of the said Will, in an open gathering of the village. The plaintiff had been settling a deal with the defendants since long and after her failure in that regard, she had filed the suit with a view to defame them.
4.Bhani Ram at the time of execution of the Will was possessed of a sound disposing mind. It was denied that Bhani Ram was living with the plaintiff in village Bhadani because the latter was married and residing in her matrimonial home at Rohtak. It was also denied that the defendants had terrorised Bhani Ram in any manner. He had executed the Will voluntarily out of his love and affection towards the defendants, who had been serving and looking after him in old age. They were owner-in-possession of the suit land on he basis of Will. Hence, it was prayed that the
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RSA No.4254 of 2006 (O&M)
suit was liable to be dismissed.
On the pleadings of the parties, the following issues were framed by the trial Court:-
“1.Whether the plaintiff is owner-in-possession of the suit land mentioned in para no.1 of the plaint?OPP
2.Whether the Will dated 27.10.1999 is illegal, null and void on the grounds mentioned in the plaint?OPD
After hearing the learned counsel for the appellants, I am of the opinion that the instant appeal deserves to be dismissed
Learned counsel for the appellants has submitted that the Will in question was duly proved by the appellants. The executant had given sufficient reasons for excluding his daughther-plaintiff from his property. In support of his arguments, learned counsel has placed reliance on Smt. Harnam Kaur and others vs. Gurbachan Singh and others (1985-2) PLR 369, Dalip Singh and another vs.Pritam Kaur 1989(2) PLR 183 and Didar Singh vs. Mohinder Singh HRR 2006(Suppl) 171.
Plaintiff-Hemlata had filed a suit for declaration that she was owner in possession of the suit land. The case of the plaintiff was that Bhani Ram, her father was owner of the suit land. Plaintiff was the only heir of Bhani Ram and,hence, after his death she had inherited the suit property.
Defendants, on the other hand, are the nephews of Bhani Ram and had set up a Will dated 27.10.1999 (Exhibit D2) in their favour alleged to have been executed by Bahni Ram. The Will in question is a registered document. Although registration of the Will goes a long way in
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RSA No.4254 of 2006 (O&M)
proving its genuineness yet propounder of the Will is required to dispel the suspicious circumstances surrounding the Will. The Will in question was executed on 27.10.1999 and the executant died on 29.11.1999. Exhibit P5 is the mutation sanctioned on the basis of Will. A request was put up by Patwari on 27.11.1999 for sanction of mutation in favour of the defendants on the basis of Will although Bhani Ram died on 29.11.1999. This is a serious circumstance which makes the Will a suspicious document. Another circumstance which makes the Will a suspicious document is that the Will is thumb marked by Bhani Ram, whereas, he was a retired para-military personnel and should have put his signatures on the Will as well as the endorsement. The endorsement that the Will in question was read over to the executant and thereafter he had thumb marked the same at the time of registration, also does not have the signatures of the Sub Registrar. Learned Additional District Judge in these circumstance rightly came to the conclusion that the Will in question, though was technically proved by examining the attesting witness, was not a genuine document as it was surrounded by suspicious circumstances. The judgments relied on by the learned counsel for the appellants fail to advance the case of the appellants as they are based on different facts.
No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed.
(Sabina) Judge
December 09, 2009
arya
3 issues framed by the court
Whether a regular second appeal is maintainable against the judgment of the Additional District Judge.
Whether the lower court correctly held that the registered Will was surrounded by suspicious circumstances and not genuine.
Whether the suspension of mutation in opposition to a Will without recording the true cause is maintainable in appeal under Order 41 Rule 23 of CPC.
Colour shows how this judgement treated each authority
Smt. Harnam Kaur and others vs. Gurbachan Singh and othersDistinguished¶33
Smt. Harnam Kaur and others vs. Gurbachan Singh and others (1985-2) PLR 369
Dalip Singh and another vs. Pritam KaurDistinguished¶33
Dalip Singh and another vs. Pritam Kaur 1989(2) PLR 183
Didar Singh vs. Mohinder SinghDistinguished¶33
Didar Singh vs. Mohinder Singh HRR 2006(Suppl) 171
Tej Pal Singh and others
Hem Lata
Sabina
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
