Allowed

Jawahar Singh v. Tej Kaur

Punjab & Haryana HC7 Jan 2009RSA/617/1989

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana allowed an appeal dismissing a suit for declaration of title and possession. Ruling that the appeal raised a substantial question of law regarding the maintainability of the suit due to statutory bars. The judgment set aside the lower appellate decree and dismissed the suit without order as to costs. No substantive analysis of the underlying property dispute wa

What did the court decide?

The judgment and decree of the lower appellate court set aside. The suit filed by the plaintiff is dismissed as not competent under Order 23 Rule 1 CPC with no order as to costs.

Jawahar Singh Vs Tej Kaur — Property and Title | Punjab & Haryana HC (2009)

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RSA No.617 of 1989

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No. 617 of 1989

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Date of Decision: 20.01.2009

Jawahar Singh Ors.

..Appellants

Vs.

Smt.Tej Kaur & Ors.

..Respondents

Coram: Hon'ble Mr. Justice Vinod K.Sharma

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Present: Mr.O.P.Goyal, Sr. Advocate, with Ms.Priya Khurana, Advocate, for the appellants.

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Mr.M.L.Saggar, Sr. Advocate, with Mr.ABS Sidhu, Advocate, for respondent No.1.

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Whether Reporters of Local Newspapers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in Digest?

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RSA No.617 of 1989

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Vinod K.Sharma,J.

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This appeal is directed against the judgment and decree passed by the learned lower appellate court decreeing the suit filed by the plaintiffrespondent seeking declaration that the sale deed dated 12.1.1981 regarding land measuring 6 Biswas 13 ½ Biswasi out of land measuring 1 Bigha19 Biswas and 5 Biswasi bearing khewat No.45 Khatauni No.84 Khasra No.132 situated at village Rangian Hat Bast No.332 Tehsil and District Ludhiana executed by Sant Singh deceased in favour of defendant No.1, to be void, illegal, without consideration, bogus, sham transaction and not binding on the plaintiff. As a consequential relief, possession of the land was sought. The plaintiff claimed that Kehar Singh had three sons namely Rattan Singh, Jawahar Singh and Sant Singh. Plaintiff/respondent is the widow of Rattan Singh, whereas Sant Singh was impleaded as defendant No.2 and Jawahar Singh as defendant No.3. Kehar Singh died on 14.12.1975. It is the case of the plaintiff that Kehar Singh executed a registered Will dated 6.3.1959 in favour of Jagdev Singh son of Rattan Singh. Jagdev Singh also died on 14.1.1982. He was said to be unmarried and the plaintiff being mother succeeded to the estate of Jagdev Singh.

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After the death of Kehar Singh dispute arose regarding mutation of his estate. Mutation was first sanctioned in favour of natural heirs by ignoring the Will. The plaintiff claimed that taking advantage of the mutation Sant Singh father of defendant No.2 sold the disputed land in favour of defendant No.1 by way of registered sale deed dated 12.6.1981. It is the case of the plaintiff that Sant Singh had no right to alienate any part of

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the land left by Kehar Singh in view of the Will having been executed by Kehar Singh in favour of Jagdev Singh. It is also the case of the plaintiff that mutation of estate of Kehar Singh now stood sanctioned in favour of Jagdev Singh and that the suit filed by defendants No.2 and 3 against Jagdev Singh challenging the Will dated 6.3.1959 stands dismissed by the learned Sub Judge, Ludhiana.

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It was also pleaded that Jagdev Singh had filed a suit for declaration of ownership in the estate left by Kehar Singh on the basis of Will dated 6.3.1959 in which disputed sale deed was also attested. However as the mutation was sanctioned in favour of the plaintiff on 16.4.1982 the suit was withdrawn with permission to file a fresh one on the same subjectmatter subject to payment of Rs.50/- as costs. The plaintiff claimed that the cost of Rs.50/- stand deposited.

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The suit was contested by the defendants. It was denied that Smt.Tej Kaur was wife of Rattan Singh. It was also claimed that Kehar Singh was in possession of Hindu undivided joint family property and Rattan Singh, Jawahar Singh and Sant Singh as members of the coparcenary family. Kehar Singh had no right to execute the Will of ancestral property without the consent of other co-parceners. The Will was alleged to be the result of misrepresentation. Maintainability of the suit was also challenged by invoking the provisions of Order 23 Rule 1 of the Code of Civil Procedure (for short the Code) on the plea that the suit filed by Jagdev Singh against other sons of Kehar Singh stood dismissed on 20.9.1976 by Shri S.S.Chopra, Senior Sub Judge, Ludhiana as no

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permission to file a fresh suit was obtained. Permission granted by the learned trial court in the subsequent suit was challenged to be illegal and without jurisdiction. It was claimed that the suit filed was not as per permission granted by the court. Thus, prayer was made for dismissal of the suit.

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The plaintiff filed replication wherein pleas raised in the plaint were reiterated and that taken in the written statement were denied.

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It was claimed that there was no necessity for the plaintiff to continue the suit which was dismissed on 20.9.1976 as mutation of inheritance stood sanctioned in favour of Jagdev Singh.

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On the pleadings of the parties learned trial court was pleased to frame the following issues:-

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Whether the sale deed dated 12.6.1981 is illegal, void ultra vires, sham and is not binding on the plaintiff, as alleged in the plaint? OPP

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Whether the suit has been filed in accordance with the permission granted to the plaintiff? OPP

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Whether the permission granted is illegal? P{D

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Whether Tej Kaur is the heir of Jagdev Singh? OPP

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Whether Kehar Singh executed valid Will in favour of Jagdev Singh? OPP

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Relief.

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Learned trial court took up issue No.5 regarding the validity of

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the Will executed in favour of Jagdev Singh first and by taking into

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consideration the evidence led held that the Will was surrounded by suspicious circumstances.

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The learned trial court held that Kehar Singh died after about 16 years of the execution of the Will and there was no evidence that Kehar Singh suffered from any serious ailment before his death. The learned trial court also found that as Jagdev Singh was 4-5 years of age in the year 1959 when the Will was executed, the stipulation in the Will that it was being executed to compensate his grand-son Jagdev Singh for the services rendered by him, therefore, could not be believed. The other suspicious circumstance taken note of was that admittedly Kehar Singh had three sons alive in the year 1959 but there is no reference at all about other legal heirs in the Will Ex.P.1 nor there was any reason given to disinherit them. The learned court observed that this fact could have lost importance if the Will was executed in favour of all his grand-sons. The contention that the Will was made as Kehar Singh was living with Rattan Singh only and other sons were living separately could not be believed in the absence of this fact having been mentioned in the Will Ex.P.1. The learned court observed that defendant No 3 in his statement categorically stated that his father had been visiting Rangia and that the ancestral house is now occupied at village Rangia by Kehar Singh. The learned trial court held that it was admitted case that Jawahar Singh son of Kehar Singh has constructed his house in village Rangia itself. The learned court also held that there was no evidence to show that Kehar Singh did not like his other sons for one reason or the other and therefore, merely because one or other son stayed outside the

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village for their job or for any other reason cannot be a ground to disinherit them.

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The learned trial court, thus, held that Rattan Singh might have influenced his father to thumb mark some document by misrepresentation of facts. The court also observed that after execution of the Will Gurdip Singh, attorney of Tej Kaur was born and in case Kehar Singh had love for Jagdev Singh due to his residence with Rattan Singh then certainly he would have changed the Will to include Gurdeep Singh as one of the beneficiaries. The learned trial court also observed that beside Jagdev Singh, Rattan Singh had 4 sons and 8 daughters. However, the fact that Kehar Singh did not include any of other sons of Rattan Singh to inherit his estate showed that the document was kept secret from Kehar Singh who was unaware of the consequences. The learned court, thus, held that in view of suspicious circumstances referred to above it was not sufficient to examine only Bakhtawar Singh to prove the Will as the other attesting witnesses were Kartar Singh, lamberdar and Bhajan Singh both of whom residents of village Rangia. The learned trial court also held that it was not explained as to why only Bakhtawar Singh was produced who belonged to village Lalton which is at a distance of 6 Kilometers from village Rangian. The learned trial court found that there was no evidence brought on record to show that Kehar Singh was really looked after by Rattan Singh and his family only and he was having disliking for his other sons and their families. Thus, in view of the suspicious circumstances referred to above the learned trial court held that the Will Ex.P.1. was not genuine document.

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The learned trial Court, however, did not agree that the property was coparcenary Hindu Joint family property for want of pleadings and evidence in support of this stand.

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Issue No.1, thus, was decided in favour of the defendant and against the plaintiff by observing that the challenge to the sale deed was only on the ground that Sant Singh had no right or title to sell the suit land.

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The learned trial court, however, held that Sant Singh was also one of the legal heirs of Kehar Singh and therefore, he had every right to dispose of his share in the land subject to adjustment at the time of partition. However, issue No.2 was decided in favour of the plaintiff by holding that as per the frame of suit the suit was as per the permission granted and merely because scope of inquiry increased will not render the suit to be bad. Issue No.3 was decided against the defendant being not pressed whereas issue No.4 was decided in favour of the plaintiff. Consequently the suit was ordered to be dismissed.

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The plaintiff preferred an appeal. Learned lower appellate court reversed the fining on issue No.5 by holding that mere non-mentioning of other natural heirs of Kehar Singh in the Will did not make the Will invalid. It was also held that absence of any reason as to why other legal representatives were disinherited is not a ground to doubt the Will. Learned lower appellate court observed that it was proved on record that other legal representatives of Kehar Singh were residing outside the village and only Rattan Singh son of Kehar Singh and father of Jagdev Singh was residing in the village with Kehar Singh so it was natural for him to execute the Will

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in favour of Jagdev Singh his grand-son who as per the Will used to render necessary services along with his father to Kehar Singh, therefore, it was on account of love and affection that the Will was executed in favour of Jagdev Singh, his grand-son. The learned lower appellate court observed that there was no evidence on record to prove that assertion of misrepresentation of putting pressure on Kehar Singh, as alleged. Learned lower appellate court observed that the will was scribed by Khem Raj, PW.1 a licenced Deed Writer of Malaut and the same was attested by three witnesses namely Bakhtawar Singh PW 2, Kartar Singh Lamberdar and one Bhajan Singh. The Will was registered by Shri Amar Surjit Singh, SubRegistrar of Malaut who was examined as PW 3. The learned lower appellate court observed that the execution of the Will was duly proved and it made no difference if Kehar Singh was not personally known to scribe or regarding authenticity. The learned lower appellate court also held that as no suggestion was put to the witnesses that the Will was not singed by the attesting witnesses, the attestation could not be doubted. The learned lower appellate court also observed that Bakhtawar Singh, one of the attesting witnesses, proved the execution of the Will. He deposed that Kehar Singh was in sound disposing state of mind. The evidence given by Bakhtawar Singh was supported by the evidence of Khem Raj, Deed Writer as PW 1. Entry in the deed writer register was also thumb marked by Kehar Singh. Registration of the Will was also proved by Sub-Registrar. The learned court observed that the endorsement of the Sub-Registrar carries presumption of truth, which was got proved from the Sub-Registrar Shri

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Amar Surjit Singh as PW 3. The learned lower appellate court held that merely because the witness Bakhtawar Singh belongs to other village could not be a reason to discard his testimony, especially when it was proved that he used to visit village Rangia, as he had inherited land in that village from his in-laws side. The learned court observed that merely because attesting witness belonged to another village is not a ground to discard his statement. The learned lower appellate court held that non-examination of other witnesses could not be said to be fatal to prove the Will as no suggestion was put to the witnesses that the Will was procured by Rattan Singh by misrepresentation or in collusion with the scribe or attesting witnesses.

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The learned court observed that it was also not put to the witnesses that the Will was kept secret by Rattan Singh. The learned lower appellate court held that the Sub-Registrar can be taken to be the attesting witness as per the provisions of Section 60 of the Registration Act.

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The learned lower appellate court held that the factum of the Will having been thumb marked by Kehar Singh was not disputed as no suggestion was put to the witnesses that the Will in question did not bear thumb impression of Kehar Singh and in the absence of any satisfactory evidence to show that Rattan Singh obtained the Will by misrepresentation in collusion with the scribe, the Sub Registrar and attesting witnesses, the Will deserved to be upheld.

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The learned lower appellate court also held that Gurdeep Singh was born after the execution of the Will and therefore, it was not possible

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to have included Gurdeep Singh in the Will. The learned lower appellate court held that though Jagdev Singh was only 4-5 years of age but it has come on record that his father Rattan Singh used to render necessary services to Kehar Singh and thus, it was natural for Kehar Singh to have willed away his property in favour of his grand-son out of love and affection for him. Therefore, it could not be unnatural. The learned lower appellate court also held that non-mentioning of name of other beneficiaries could not be a ground to doubt the execution of the Will. The finding on issue No.5 was reversed.

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The learned lower appellate court observed that as the Will has been held to be valid document so Jagdev Singh was owner of the property left behind by Kehar Singh and after his death his mother Tej Kaur plaintiff became absolute owner of the property. Sant Singh deceased father of defendant No.2, therefore, did not have right to alienate the suit land by way of sale in favour of Surjit Singh defendant as he had no title to the suit land sold by him vide sale deed dated 12.6.1981.

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The sale deed was declared to be illegal, void and not binding on the rights of the plaintiff. The learned lower appellate court also held that the suit was filed as per the permission granted and finding of the learned trial court on issue No.2 was affirmed.

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As the findings on issues No.3 and 4 were not challenged or assailed the same were also affirmed and consequently the suit was decreed by accepting the appeal.

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Learned senior counsel for the appellants contends that the

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appeal raises the following substantial for consideration by this Court.

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Whether the withdrawal of suit filed by Tej Kaur on 26.7.1983 against Surjit Singh, Takhur Singh and Jawahar Singh on 20.9.1976 and also in view of the withdrawal of second suit on 9.12.1982 the suit filed is barred under provisions of order 23 Rule 1 CPC?

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Whether the Will dated 6.3.1959 is surrounded by suspicious circumstance and therefore, not validly executed?

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Learned senior counsel appearing on behalf of the appellants has challenged the finding of the learned courts below on issue No.2 on the plea that Jagdev Singh son of Rattan Sing and Rattan Singh husband of Smt.Tej Kaur plaintiff/respondent filed a suit for declaration and permanent injunction on 19.4.1976 claiming that the plaintiff was owner in possession of land measuring 39 Bighas 6 Biswas 13 Biswasi. The said suit was filed against all the legal heirs of Kehar Singh.

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The suit was on the plea that Kehar Singh had executed a valid registered Will on 6.3.1959 and according to the Will, Kehar Singh bequeathed the entire property in dispute to Jagdev Singh.

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Copy of the plaint was exhibited as Ex.D.9. The suit was dismissed as withdrawn without permission to file a fresh one on the same cause of action.

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Copy of the order dismissing the suit was placed on record as

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Ex.D.1.

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Jagdev Singh and Rattan Singh, therefore, filed another suit on 15.9.1981 against Sant Singh, Jawahar Singh sons of Kehar Singh and Surjit Singh seeking declaration to the effect that Jagdev Singh is the owner in possession of entire suit land on the basis of registered Will dated 6.3.1959 and that dated 12.6.1981 executed by Sant Singh in favour of Surjit Singh to be illegal, void, bogus and sham transaction and thus, not binding on the plaintiff.

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The second suit was allowed to be withdrawn vide order dated 9.12.1982, Ex.D.10.

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The present suit was filed by Smt.Tej Kaur mother of Jagdev Singh on 26.7.1993 against Sant Singh, Thakur Singh and Jawahar Singh claiming that the sale deed dated 12.8.1981 executed by Sant Singh in favour of Sant Singh is void illegal, bogus and sham transaction and for possession of the land as consequential relief.

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Learned senior counsel contended that the suit as framed was not competent in view of the bar contained under Order 23 of the Code of Civil Procedure, thus, finding of the learned lower appellate curt on issue No.2 cannot be sustained. In support of his contention learned senior counsel for the appellant placed reliance on the provisions of Order 23 of the Code of Civil Procedure which reads as under:-

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“ 23. Withdrawal and Adjustment of suits

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1. Withdrawal of suit or abandonment of part of

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claim. —(1) At any time after the institution of a suit, the

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plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

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Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

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(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

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(3) Where the Court is satisfied.--

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(a) that a suit must fail by reason of some formal defect, or

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(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

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(4) Where the plaintiff--

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(a) abandons any suit or part of claim under sub-rule (1) or

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(b) withdraws from a suit or part of a claim without the

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permission referred to in sub-rule (3),

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he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

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(5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.

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1-A. When transposition of defendants as plaintiffs may be

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permitted.-- Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants.

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Limitation law not affected by first suit.-- In any fresh suit instituted on permission granted under the last preceding rule,

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the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.

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3. Compromise of suit.-- Where it is proved to the

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satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subjectmatter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit,whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit.

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Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

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Explanation.-- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.

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3-A. Bar to suit.-- No suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful.

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3-B. No agreement or compromise to be entered in a representative suit without leave of Court.-- (1) No agreement or compromise in a representative suit shall be entered into without the leave of the Court expressly recorded in the proceedings; and any such agreement or compromise entered into without the leave of the Court so recorded shall be void.

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(2) Before granting such leave,the Court shall give notice in such manner as it may think fit to such persons as may appear to it to be interested in the suit.

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Explanation.-- In this rule, “representative suit” means, --

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(a) a suit under section 91 or section 92,

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(b) a suit under rule 8 of Order I,

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(c) a suit in which the manager of an undivided Hindu family sues or is sued as representing the other members of the family, (d) any other suit in which the decree passed may, by virtue of the provisions of this Code or of any other law for the time being in force, bind any person who is not named as party to the suit.

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4. Proceedings in execution of decrees not affected.--

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Nothing in this Order shall apply to any proceedings in execution of a decree or order.

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The contention learned Senior counsel is that the learned courts

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below decided issue No.2 without taking into consideration the factum of order passed on the first suit filed by plaintiff/respondent which was dismissed on 20.9.1976 without permission to file a fresh one on the same cause of action.

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In support of his contention that finding on issue No.2 be reversed reliance is placed on the judgment of Hon'ble Allahabad High Court in the case of Budh Prakash Rastogi Vs. Santosh Pal Dublish , 1997 (2) C.C.C. 171 wherein the Hon'ble Allahabad High Court has been pleased to lay down as under:-

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“10. It may further be added by way of clarification that subrule (3) of Rule 1 does not grant licence to the plaintiff of a suit to withdraw his suit. Plaintiff who has filed his suit for a certain cause has a vested right, which is recognized by Rule 1, to either abandon or withdraw the suit. In case the suit is abandoned, then the court will dismiss the suit for nonprosecution under Order Rule 3 of the Code of Code of Civil Procedure. However, if the plaintiff, for one or the other reason withdraws the suit, without court's permission to file another suit, then he is precluded by sub-rule (4) of Rule 1 from bringing another suit for the cause of action which was the subject-matter of the earlier withdrawn suit. Use of words without the permission referred to in sub-rule (3) in sub-clause (b) of sub-rule (4) of Rule 1 clearly indicates that sub-rule (3) contemplates of the power/right of the plaintiff to withdraw the

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suit without asking for the court's permission to file another. Once the suit is withdrawn without court's permission to file another, bar imposed by sub-clause (b) of sub-rule (4) of Rule 1 is attracted and a fresh suit for the same cause of action on which previous suit was filed, will be barred.

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It is also not correct to contend that the cause of action for accounting which was the subject matter of the earlier and is in the present suit, is a recurring cause of action. Right of a partner of a partnership firm to ask for accounting from other partner of the firm is a substantive right. It can be enforced in law courts. However, once a suit is filed in pursuit of that right by the partner, then withdrawal of the suit by that partner for one or the other reason amounts to abandonment of that vested right, which once abandoned cannot be claimed over again by filing another suit.”

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Reliance was also placed on the judgment of Andhra Pradesh

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High Court in the case of Jonnala Sura Reddy & Anr. Vs. Tityyagura Srinivasa Reddy & Ors, 2004(1) CCC 417 wherein it was held as under:-

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“6. The plaint in this case was presented on 19.1.1984. Exs.B28 and B-29 show that the earlier suit O.S. No.14 of 1984 was withdrawn on 19.1.1984. So, it is clear that withdrawal of suit O.S. No.14 of 1984 and filing of this suit took place on the same day, i.e. On 19.1.1984. Even assuming that this suit was filed only after the order permitting withdrawal of O.S. No.14

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of 1984 was passed this suit is clearly barred by Rule 1 of Order 23 CPC because the plaintiff, while withdrawing O.S. No.14 of 1984 did not seek permission of the Court to file a fresh suit on the same cause of action.”

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Learned Senior counsel referred to Ex.D.10 i.e. the order passed on second suit which read as under:-

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“Shri M.L. Saggar, counsel for the plaintiffs has made his statement that mutation of some of the suit land has been entered in the name of the plaintiffs as owners and the land sold to the defendants is only now remains disputed. Therefore, the plaintiffs want to file the suit regarding the land sold only against the persons concerned and has prayed that the plaintiffs be allowed to withdraw the suit with permission to file a fresh suit regarding the land sold as the present suit being for the whole land is not likely to succeed. On the other hand, Shri Asho Kumar Upadhya counsel for the defendants has objected to the withdrawal of the suit with permission to file the fresh suit as there is no formal defect in the suit. But in view of the statement made by the counsel for the plaintiffs, it is found that the plaintiffs want to file a suit regarding the land which has been sold and against those persons only who are vendees, while the present suit is regarding more land than the land sold and against other persons than the vendees also. Therefore, under these circumstances, I am of the view that there is formal

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defect in the case and there is likelihood for the failure of the suit. Therefore, under the circumstances, the plaintiffs are allowed to withdraw the suit with permission to file fresh suit as per statement made by their counsel. The plaintiffs are bounded with costs of Rs.80/- for withdrawal of the suit to be paid at the time of filing fresh suit.”

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The contention of learned Sr. counsel is that the reading of order would show that the plaintiff had specifically given up her claim for declaration that she was owner in possession of the land on the basis of Will and sought permission to challenge the sale deed in favour of Surjit Singh.

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In the garb of order the plaintiff could not re-agitate the matter to which she was not entitled to.

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In view of the dismissal of the first suit the second suit itself was not competent.

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In order to challenge the sale deed the plaintiff could not be allowed to re-open the case which was otherwise not maintainable in view of the bar contained in order 23 Rule 1 (4) CPC.

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Learned senior counsel also challenged the finding recorded by the learned lower appellate court on issue No.5 by urging that there were suspicious circumstance surrounding the Will which lead to irresistible conclusion that it did not reflect the real wish of Kehar Singh. Suspicious circumstances pointed out by the learned senior counsel read as under:-

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“(a) The will does not show that Kehar Singh was suffering

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from any ailment. The will was executed on 6.3.1959 and Kehar Singh died on 14.12.1975 i.e. After 16 years of execution of the will. There is no evidence that Kehar Singh suffered from any serious illness before his death. It appears that Kehar Singh remained hail and hearty.

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(b) Jagdev Singh was 4 years, 3 months old at the time of execution of the will. He could not have done any service to Kehar Singh at the age of 4 years, 3 months He was not in a position to render any service to Kehar Singh at that tender age.

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(d) There is no reference in the will about any of the other sons of Kehar Singh and that he was interested in disinheriting the family of other sons. Things would have been different if he had executed the will in favour of all his grand sons.

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(e) The agriculturists in Punjab like the property to fall on his sons if they are more than one. The attempt made that Kehar Singh was living with Rattan Singh is fake attempt. There is no reference in the will about his other sons living outside the village. Evidence in this regard of the defendant-appellants witness to the fact that Jawahar Singh has been visiting Rangian often. Jawahar

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Singh had constructed house in village Rangian itself about 15/20 years ago according to DW-1 Hardev Singh.

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(f) There is no evidence that Kehar Singh did not like his other sons for any reason. Living outside the village for living is no ground for disaffection and no ground for dis-inheritance. Living outside the village inculcates more affection.

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(g) It is possible that Rattan Singh may have influenced his father Kehar Singh to make the documents by misrepresentation of the fact. The fact that Jawahar Singh was living outside is falsified by the fact that the address of Jawahar Singh is given as resident of village Rangian in the plaint itself and further that Jawahar Singh before his death had been living in village Rangian. Further Gurdeep Singh was born in the year 1960. There is nothing in the statement of Gurdeep Singh that Kehar Singh did not have any affection for Gurdeep Singh. If the story of Jagdev Singh rendering service to Kehar Singh was true Kehar Singh must have changed in mind to execute a fresh will to include the name of Gurdeep Singh for inheritance to his estate. There was no occasion for Kehar Singh to execute a will in 1959 except that he was allegedly living with Rattan Singh.

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(h) Kehar Singh did not include any of the other sons of Rattan Singh to inherit his estate. Rattan Singh had 4 sons and 8 daughters. The document was kept concealed from Kehar Singh. There was one more son elder to Jagdev Singh. Why his name was not included in the will goes unexplained.

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(i) The scribe Khem Raj PW-1 did not know Kehar Singh, Rattan Singh, Bakhtawar Singh personally. Likewise Amar Surjeet Singh PW-3 did not know Kehar Singh and other attesting witnesses personally. He only knew Kartar Singh, Nambardar who did not prove the will. The statements of Khemraj and Amar Surjit Singh are of no help.

¶171

(j) Kartar Singh, Nambardar and Bhajan Singh are both the residents of village Rangian but they were not produced in the court as attesting witnesses. Bakhtawar Singh belonging to village Latala which is at a distance of 6 Kms. from Rangian was produced.

¶172

(k) The plaintiff has not examined any resident of village Rangian to show that Kehar Singh was really lookedafter by Rattan Singh and his family or that he was having any dislike for his other sons and their families. There is no evidence that Kehar Singh executed the will out of love and affection for Jagdev Singh. The above

¶173

RSA No.617 of 1989

¶174

¶175

circumstances have not been explained and hence the will exhibit PW-1 is not a genuine document.

¶176

Mr. M.L. Saggar, learned senior counsel appearing on behalf of the respondent controverted the contention raised by the learned senior counsel for the appellants by contending that Will could not be said to be surrounded by suspicious circumstances merely because the executent of the Will was not suffering from any ailment as claimed by the appellant. Learned senior counsel for the respondents also controverted the allegation that because of age of Jagdev Singh he could not have rendered any service to Kehar Singh by referring to the Will wherein the executent had not mentioned services rendered by Jagdev Singh, but also by Rattan Singh.

¶177

The contention of the learned senior counsel, therefore, was that the learned lower appellate court was right in holding that because of the common residence and services rendered by Rattan Singh, Kehar Singh executed a Will in favour of Jagdev Singh out of love and affection.

¶178

The learned senior counsel also contended that the mere nonmentioning of other legal representatives was not a suspicious circumstance so the learned lower appellate court was justified in reversing the finding of the learned trial court by holding this to be not a suspicious circumstance.

¶179

Learned senior counsel further contended that contentions now raised by the appellants have been duly considered by the lower appellate court and rejected by giving good and valid reasons.

¶180

Learned senior counsel also pointed out that there was evidence

¶181

RSA No.617 of 1989

¶182

¶183

on record to show that one son of Kehar Singh had got land from his maternal side and was living in different village.

¶184

Similarly, other son was living outside, where he constructed his house and had independent means of livelihood and thus, there was nothing unnatural for Kehar Singh to have executed the Will in favour of his grand-son.

¶185

In support of finding on issue No.5, learned senior counsel appearing on behalf of the respondents placed reliance on the judgments in the cases of PPK Gopalan Nambiar Vs. PPK Balakrishnan Nambiar & Ors. Jt 1995 (5) SC 163; Tej Kaur & Anr. Vs. Kirpal Singh & Anr., JT 1995 (5) SC 201; Joginder Singh (Died) through his Lrs. Vs. Surinder Singh 1997 (1) PLR 83; Misri Lal (dead) by L.Rs. & Anr. Vs. Smt.Daulati Devi & Anr. JT 1997 (7) SC 132; D.L.F.Qutab Enclave Education Charitable Trust Vs. State of Haryana 2002 (1) LLR 205 and Joseph Antony Lazarus (D) by L.Rs. Vs. A.J.Francis AIR 2006 SC 1895.

¶186

Learned senior counsel appearing on behalf of the respondents contended that the suit filed by the plaintiff could not be said to be barred under Order 23 Rule 1 (4) of the Code. In support of finding on issue No.2 , learned senior counsel contended that the after the death of Rattan Singh on 14.12.1975, the mutation of inheritance was granted in favour of Jagdev Singh. However, on appeal the case was remanded and the learned Revenue Court ordered mutation in favour of all the legal representatives. Learned counsel for the appellants, thus, contended that Jagdev Singh and Rattan Sing filed a suit for declaration and permanent injunction on 19.4.1976.

¶187

RSA No.617 of 1989

¶188

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However, after sanction of mutation in favour of Jagdev Singh suit was got dismissed as withdrawn on 20.9.1976.

¶190

It is not disputed that no permission to file a fresh one on the same cause of action was granted.

¶191

The contention of the learned senior counsel was that thereafter, second suit was filed when the mutation was sanctioned in favour of the legal heirs in pursuance of the remand by the appellate court.

¶192

However, in view of the fact that the mutation was again sanctioned the suit was withdrawn with liberty to challenge the sale deed in favour of Surjit Singh.

¶193

The plaintiff had therefore, fresh cause of action to file the second suit in view of Section 45 of Land Revenue Act. The order passed on the first suit, therefore, could not be treated to be barred under order 23 Rule 1 of the Code.

¶194

This contention of the learned senior counsel deserves to be rejected as in none of the suits filed by parties orders passed by the revenue court was under challenge to attract the provisions of Section 45 of the Land Revenue Act. It is also well settled that mutation gives no title and therefore, merely because mutation stands sanctioned or set aside will not determine the question of title pending in civil court.

¶195

Learned senior counsel also contended that second suit was in consonance with the permission granted vide Ex.D10 referred to above and therefore, the learned courts below were right in holding that the suit was as per the permission granted by the learned court.

¶196

RSA No.617 of 1989

¶197

¶198

On consideration of the matter, I find that first substantial question of law as framed deserves to be decided in favour of the appellant/defendants.

¶199

Once it is not disputed that the predecessors-in-interest of the plaintiff i.e. Jagdev Singh and Rattan Singh had filed a suit for declaration and permanent injunction on 19.4.1976 claiming to be owners in possession on the basis of registered Will dated 6.3.1959 and the said suit was withdrawn without permission to file a fresh one the second suit filed was barred under Order 23 Rule 1 of the Code as per the bare reading of the provisions.

¶200

The reasons given to reject the contention raised by the learned senior counsel and decisions of Hon'ble Allahabad High Court in the case of Budh Prakash Rastogi Vs. Santosh Pal Dublish (supra) and Hon'ble Andhra Pradesh High Court in the case of Jonnala Sura Reddy & Anr. Vs. Tityyagura Srinivasa Reddy & Ors. ( supra) can be relied upon in support of this conclusion.

¶201

The permission granted in the second suit by the court to challenge the sale deed also was without taking into consideration the order passed in the first suit. The predecessors-in-interest of the plaintiff withdrew the second suit with a limited prayer to challenge the sale deed by specifically mentioning therein that whole of the claim as raised in the suit was not likely to succeed.

¶202

In view of the specific plea it was not open to the learned lower courts to have reconsidered the questions raised in the previous two

¶203

RSA No.617 of 1989

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suits to decide issue No.2 against the plaintiff as the second suit itself was barred under Order 23, Rule 1 of the Code.

¶206

The first substantial question of law as raised is answered in favour of the appellant/defendants and it is held that the suit filed by the plaintiff/respondent was not maintainable in view of the bar contained under Order 23 Rule 1 of the Code.

¶207

In view of the findings on first substantial question of law, there is no need to answer the second substantial question of law as framed.

¶208

The appeal is allowed. The judgment and decree passed by the learned lower appellate is set aside and that of the suit filed by the plaintiff/respondent is ordered to be dismissed as not competent in view of the bar under Order 23 Rule 1 of the Code but with no order as to costs.

¶209

(Vinod K.Sharma) Judge

¶210

20.01.2009 rp

Jawahar Singh v. Tej Kaur

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Jawahar Singh v. Tej Kaur

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