Dismissed

Sajjan Singh v. Jaswant Kaur

Punjab & Haryana HC21 May 2014RSA/2657/2012

Case brief

AI extract

What is this about?

In an appeal against the disposal of a succession suit, the High Court upheld the lower appellate court's finding that the appellant failed to prove execution of Wills. Consequently, the respondent was entitled to a share via natural succession. Regarding limitation, the court held no period is prescribed for suits for possession based on inheritance.

What did the court decide?

Rejected the appellant's claim of inheritance via Wills; upheld the lower appellate court decree granting the respondent a 1/4th share via natural succession; dismissed appeal.

Sajjan Singh Vs Jaswant Kaur — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No.2657 of 2012 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2657 of 2012 (O&M) Date of decision:21.05.2014

Sajjan Singh

....Appellant

Versus

Jaswant Kaur

....Respondent

CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:- Mr. G.S.Bhatia, Advocate for the appellant.

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RAKESH KUMAR GARG, J

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Plaintiff-respondent filed the instant suit for declaration, joint possession and permanent injunction to the effect that Kehar Singh, father of the parties, was owner in possession of the suit land and neither he nor Karam Kaur his widow executed any Will in favour of the appellant-defendant and the mutation No.1831 of the land pertaining to the share of Kehar Singh in favour of the appellantdefendant and Karam Kaur is liable to be set aside. Plaintiffrespondent filed the suit for declaration to the effect that she was the owner to the extent of 1/6^th share and appellant is owner to the extent of 1/6^th share of the suit land fully detailed in the head note of the plaint with consequential relief for joint possession of the suit land and permanent injunction restraining the appellant from alienating the

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2657 of 2012 (O&M)

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suit land in any manner. It was alleged that plaintiff is the real sister of the appellant. Father of the parties, namely, Kehar Singh had died as he was owner in possession to the extent of 1/3^rd share of the total land measuring 96 kanals 12 marlas fully detailed in the head note of the plaint. Kehar Singh and his wife Karam Kaur never executed any Will in favour of defendant or any other person but the defendant and his mother Karam Kaur had obtained the mutation No.1831 of the land pertaining to the share of Kehar Singh in their favour, which is against the law and facts and liable to be set aside and not binding upon her rights. It was further alleged that Karam Kaur, mother of the parties, had also died and after her death, defendant had obtained mutation No.2118 pertaining to the share of Karam Kaur of the suit land which is also illegal, null and void as no notice was given to the plaintiff at the time of sanctioning of the mutation and the same was liable to be set aside. The land is joint Hindu Family Property and plaintiff has every right and interest in the suit land pertaining to the share of her parents. On the basis of mutation No.1831 and 2118, the entries have been incorporated in the revenue record in the name of the defendant which are wrong and liable to be corrected. The defendant by taking undue advantage of wrong entries in the revenue record is trying to sell the suit land to certain persons. Plaintiffrespondent was also entitled to the joint possession of the suit land to the extent of her share. Defendant has refused to admit her claim. Hence, the present suit.

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RSA No.2657 of 2012 (O&M)

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The suit was contested by defendant/appellant alleging that Kehar Singh, father of parties, had executed the unregistered Will in favour of the appellant and Karam Kaur, his wife on 19.5.1978 and on his death, defendant and his mother inherited the estate of Kehar Singh deceased on the basis of said Will and mutation No.1831 was sanctioned with the consent of the plaintiff-respondent. The plaintiff-respondent is bound by the mutation sanctioned by the revenue authorities. It was further alleged that Karam Kaur, mother of the defendant had also executed a registered Will dated 3.10.1988 in favour of the defendant. The mutation No.2118 regarding the inheritance of Karam Kaur was sanctioned in favour of defendant. The plaintiff had executed an affidavit dated 28.9.1993 admitting the fact of execution of registered Will dated 3.10.1988 by Karam Kaur in his favour and thus defendant-appellant was in exclusive possession of the suit land and plaintiff-respondent had no right, title or interest in the same. Denying all other averments of the plaint, dismissal of the suit was prayed for.

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From the pleadings of the parties, following issues were

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framed:-

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1. Whether the mutation No.1831 and 2118 in favour of defendant pertaining to the share of Kehar Singh and Karam Kaur are null and void? OPP

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2. Whether the plaintiff is owner to the extent of 1/6^th share in the suit land? OPP

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RSA No.2657 of 2012 (O&M)

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3. Whether the plaintiff is entitled to injunction and declaration as prayed for? OPP

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4. Whether the plaintiff is estopped from filing the present suit, as she was party to the mutation of inheritance of Kehar Singh and Karam Kaur? OPD

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5. Whether suit is barred by limitation? OPD

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6. Whether the suit is not maintainable? OPD

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7. Whether the plaintiff has no locus standi to file the present suit? OPD

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8. Relief.

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After hearing learned counsel for the parties, trial Court decided issues No.1 to 5 in favour of the defendant and against the plaintiff and dismissed the suit vide judgment and decree dated 17.9.2010.

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Aggrieved from the aforesaid judgment and decree of the trial Court, plaintiff filed an appeal before the First Appellate Court which was accepted vide impugned judgment and decree dated 25.2.2012. While accepting the appeal, lower Appellate Court held that unregistered Will dated 19.5.1978 alleged to be executed by Kehar Singh in favour of the appellant as well as his mother Karam Kaur is not proved and thus, mutation No.1831 in favour of the appellant and his mother Karam Kaur on the basis of the aforesaid Will was not binding on the plaintiff-respondent as she was minor at the time of sanctioning of the said mutation and therefore, no

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RSA No.2657 of 2012 (O&M)

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consent could have been given by her being minor.

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It was further found by the lower Appellate Court that on the death of Kehar Singh, he was survived by four class I heirs at the time of his death i.e. his widow Karam Kaur, Jaswant Kaur-minor daughter i.e. plaintiff-respondent and minor son Sajjan Singh i.e. defendant-appellant and his mother Nand Kaur and thus, plaintiffrespondent was entitled to inherit 1/4^th share in the estate left by her father Kehar Singh on the basis of natural succession. Lower Appellate Court also found that registered Will dated 3.10.1988 alleged to be executed by Karam Kaur widow in favour of defendantappellant stood proved. Thus, plaintiff-respondent was not entitled to inherit anything in the property of her mother Karam Kaur and thus, the judgment and decree of the trial Court was set aside. The appeal was partly accepted and suit of the plaintiff-respondent was partly decreed declaring that she was owner to the extent of ¼^th share of the property/share of Kehar Singh in the suit property with consequential relief that she is entitled to joint possession in the suit property to the extent of her share.

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Feeling aggrieved from the judgment and decree of the lower Appellate Court, defendant has filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

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i. Whether the suit for declaration filed by the plaintiff/respondent seeking setting aside Mutation

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2657 of 2012 (O&M)

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No.1831 sanctioned in the year 1978 after 22 years is within limitation?

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ii. Whether the plaint can be said to be presented properly by the plaintiff/respondent especially when she refused to identify her signatures on the plaint and her counsel on the Vakalatnama?

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iii.Whether the provisions of Order 6 Rule 14 and 15 of CPC are mandatory?

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iv.Whether suit filed by the plaintiff-respondent is legally maintainable claiming 1/6^th share of the property of her father when she herself executed an affidavit dated 28.09.1993 Ex.D3 in favour of the defendant-appellant qua her share out of the property of her mother being well aware of the fact that her mother had inherited the property from her husband i.e. father of the plaintiff/respondent in the year 1978?

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v. Whether learned Lower Appellate Court could grant a decree in favour of the plaintiff-respondent of 1/4^th share when she had claimed 1/6^th share in the suit property?

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vi.Whether the present suit is governed by Article 65 of the Limitation Act and limitation for filing such suits is 12 years from the date of becoming the possession adverse to the plaintiff/respondent?

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2657 of 2012 (O&M)

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vii.Whether the findings recorded by the LAC are perverse and based on misreading and misinterpreting the evidence available on record?

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I have heard learned counsel for the appellant and perused the judgments and decrees of the Courts below.

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The relationship between the parties is not disputed. Admittedly, Kehar Singh died on 13.10.1978 and was survived by one daughter, one son, his widow and mother Nand Kaur. After his death, Karam Kaur, his widow also died. Plaintiff-respondent has claimed inheritance of father and mother by way of natural succession, whereas appellant has set up two Wills i.e. unregistered Will dated 19.5.1978 executed by Kehar Singh in his favour and his mother and registered Will dated 3.10.1988 executed by Karam Kaur in his favour. The onus to prove the execution of both the Wills was on the appellant. Admittedly, neither the original nor copy of the Will executed by Kehar Singh in favour of the appellant has been proved on the file. In fact, appellant has not led any other evidence to prove the execution of the said Will. DW5-Sital Singh, who has stated about the execution of the said Will by Kehar Singh, has not appeared for his cross-examination and therefore, his statement-inchief is of no significance.

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In view thereof, such a Will, as set up by the appellant claiming inheritance of his father, has been rightly discarded by the lower Appellate Court. The argument of the appellant i.e. mutation

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2657 of 2012 (O&M)

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was sanctioned on the basis of the said Will with the consent of the plaintiff-respondent is also not acceptable as admittedly, plaintiffrespondent was minor at the time of sanctioning of the said mutation and no consent could have been given by her being minor. Therefore, mutation No.1831 sanctioned on the basis of the said unregistered Will in favour of the appellant as well as his mother Karam Kaur is not binding upon the plaintiff-respondent and thus, the aforesaid Will was rightly discarded and no error can be found in the findings of the lower Appellate Court as plaintiff-respondent is entitled to 1/4^th share of the estate left by Kehar Singh on the basis of his natural succession. So far as claim of the plaintiff-respondent with regard to inheritance of her mother, suffice is to say that finding has been recorded in favour of the appellant to the effect that execution of the said registered Will dated 3.10.1988 has been duly proved and therefore, on the basis of the said Will plaintiff-respondent was not entitled to any share from the estate of her mother.

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In view of the aforesaid facts, which could not be disputed before this Court, no fault can be found with the findings of the lower Appellate Court with regard to claim of the plaintiff-respondent.

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Faced with this, counsel for the appellant has attempted to raise an argument to the effect that suit of the plaintiff-respondent was barred by limitation. According to the appellant, she had come to know about the sanctioning of mutation and the Will of his father and the mother when she had sworn the affidavit in the year 1993

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2657 of 2012 (O&M)

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Ex.D3 and thus, suit filed on 24.4.2000 was beyond the period of limitation of three years.

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Suffice is to say that no period of limitation is prescribed for filing the suit for possession on the basis of inheritance as held by a Division Bench of this Court in the case of Ganpat and others vs.

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Lachhman and others 2008(4) CCC-298 (P&H).

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In view thereof, no interference is warranted in the impugned judgments and decrees of the Courts below.

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No substantial questions of law, as raised, arise in this

appeal.

Dismissed.

May 21, 2014

savita

(RAKESH KUMAR GARG) JUDGE

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Kadian Savita 2014.05.26 09:45 I attest to the accuracy and integrity of this document High Court Chandigarh

Sajjan Singh v. Jaswant Kaur

Case brief

What is this about?

What did the court decide?

Sajjan Singh v. Jaswant Kaur

Case brief

What is this about?

What did the court decide?

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