The High Court dismissed the second appeal. The appellant challenged judgments upholding title defenses based on res judicata and lack of will execution proof, finding no merit.
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-456-2010 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA-456-2010 (O&M) Date of Decision: August 11, 2014
Jatinder Singh
.....Appellant
v.
Sarvjeet Kaur and others
......Respondents
CORAM: HON'BLE MR.JUSTICE NARESH KUMAR SANGHI
Present: Mr.Ravinder Jain, Advocate for the appellant.
NARESH KUMAR SANGHI, J.
Learned counsel contends that the costs imposed vide order dated 12.09.2012 have already been deposited.
The appellant-plaintiff has filed the regular second appeal challenging the judgment and decree dated 04.11.2008 passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri, whereby the appeal filed by the appellant-plaintiff was dismissed with costs. Challenge has also been made to the
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judgment and decree dated 16.03.2007 passed by the learned trial Court whereby the suit filed by the appellant-plaintiff was dismissed.
Brief facts of the case are as under:Appellant-plaintiff filed the suit for possession on the premise that he was owner of the suit property which was wrongly and deliberately sold by defendant No.3 to defendant Nos.1 and 2. At the time of execution of the sale-deed, the appellant-plaintiff was minor and the suit property was sold without consideration and legal necessity. The civil suit filed by his mother for pre-emption was dismissed. The suit challenging the alienation was also dismissed. In the first week of January, 2000, the appellant-plaintiff came to know of the fact that defendant No.3, who was his father, had never been the owner of the suit property. The appellant-plaintiff came to know about a Will executed by his grand-father, Darbara Singh, in his (appellant-plaintiff) favour, but the said fact was
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concealed by defendant No.3-Mohan Singh (father of the appellant-plaintiff) from the mother of the appellant-plaintiff, in spite of the fact that the same was executed in the year 1983. The mother of the appellant-plaintiff had found the said Will in a box in the house. Further stand of the appellant-plaintiff was that defendant No.3 was not the owner of the suit property, therefore, he was not legally entitled to sell the same to the other defendants. In spite of the request of the appellant-plaintiff, the defendants refused to hand over the possession of the suit land to him (appellantplaintiff).
After appearance, defendant Nos.1 and 2 filed their joint written statement alleging that the suit was not maintainable; it was barred by principle of res judicata as the previous suit filed by the appellantplaintiff had been dismissed on merits and it was held that the alienation of the suit property was a valid transaction; the suit was also barred by limitation;
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RSA-456-2010 (O&M)
defendant No.3 was the owner of the property since the same was inherited by him (defendant No.3) from his father and he had every right to sell the same. It was also averred that defendant Nos.1 and 2 had purchased the property for valuable consideration. They further averred that Darbara Singh, grand-father of the appellant-plaintiff, had died four years after the sale and was aware during his life-time that the suit property was sold by his son, i.e. defendant No.3, but the same was never challenged by him. Defendant No.3, Mohan Singh, father of the appellant-plaintiff, filed separate written statement wherein he averred that his father, Darbara Singh, had executed a Will in favour of the appellant-plaintiff and, as such, the sale deed executed by him ( Mohan Singh) in favour of defendant Nos.1 and 2 was a nullity. It was also averred that Darbara Singh, grand-father of the appellant-plaintiff, had executed a Will in favour of the appellant-plaintiff.
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RSA-456-2010 (O&M)
No replication was filed by the appellantplaintiff. The learned trial Court framed the following issues:-
Learned trial Court dismissed the suit primarily on the ground that the appellant-plaintiff colluded with his father Mohan Singh, defendant No.3, and since price of the suit property had risen manifold by way of filing the suit, the father and the son, i.e. Mohan Singh, defendant No.3, and the appellant-
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RSA-456-2010 (O&M)
plaintiff, wanted to get back the suit property.
Appeal was also dismissed by the learned Additional District Judge, Yamuna Nagar.
Learned counsel contends that the appellantplaintiff was minor who had got the suit property by way of a Will executed by his grand-father, Darbara Singh. Father of the appellant-plaintiff, namely, Mohan Singh, i.e. defendant No.3, was not authorised to sell the suit property to defendant Nos.1 and 2 since there was no legal necessity. He further submitted that no consideration was received by defendant No.3 from defendant Nos.1 and 2 and, as such, the sale was not a valid one. He further submitted that both the Courts below had wrongly dismissed the suit of the appellantplaintiff.
I have heard the learned counsel for the appellant-plaintiff and with his able assistance gone through the material available on record.
The case set up by the appellant-plaintiff is
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RSA-456-2010 (O&M)
that he came to know about execution of the Will about 16-17 years after the death of his grand-father Darbara Singh. As per case of the appellant-plaintiff, the Will was traced out from a box by his (appellantplaintiff) mother but she was not produced as a witness before the Court below. It is also apposite to mention that the appellant-plaintiff had also failed to prove the execution of the Will, as per law, since the attesting witness of the Will, namely,Ram Chand, fairly conceded in his cross-examination that Darbara Singh, the testator of the Will, had not put his signatures in the presence of the witnesses. Since the mandatory requirement of proving the Will could not be substantiated, therefore, the execution of the Will by itself is in question. The two Courts below have given cogent reasons in disbelieving the execution of the Will when it was discussed that the seven sons of the testator were excluded from their shares. It was also rightly held by both the Courts below that on account of
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the previous litigations, the suit by itself was not maintainable since the civil Courts had held that the sale transaction was valid one. The appellant-plaintiff was also estopped from filing the present suit by his own admission in the earlier litigations where he (appellant-plaintiff) had admitted that his father, Mohan Singh (defendant No.3), was the owner of the suit property and, as such, in the latter litigation, he could not be allowed to take a different stand.
In view of the cogent findings recorded by both the Courts below, no substantial question of law for consideration of this Court arises, and therefore, there being no merit in the present appeal, the same is hereby dismissed.
August 11, 2014 meenu
(NARESH KUMAR SANGHI) JUDGE
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1 issue framed by the court
Whether there is any substantial question of law arising regarding the execution of the will and validity of the sale.
Jatinder Singh
Sarvjeet Kaur
NARESH KUMAR SANGHI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
