Judgment:
vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [1]. ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2434 of 2014 (O&M) Date of decision:30.06.2014 Darshan Singh ...Appellant Versus Appar Singh and another ...Respondents CORAM: Hon'ble Mr. Justice Rakesh Kumar Jain Present: Dr. Puneet Kaur Sekhon, Advocate, for the appellant. ***** RAKESH KUMAR JAIN, J.
The defendant is in appeal against the judgment and decree of the lower Appellate Court. In brief, the case of the plaintiffs is that one Piara Singh was the owner in possession to the extent of 4/15 share out of the land measuring 18 kanal 9 marlas. He was without any issue being unmarried and died on 17.07.1999. He had three brothers and one sister, namely, Banta Singh, Jawand Singh, Harbans Singh and Dhanni. All of them pre-deceased Piara Singh. Banta Singh was also issueless as he was not married, Jawand Singh left behind the plaintiffs and Harbans Singh left behind his widow Joginder Kaur but without any issue. Dhanni also died leaving behind the defendant as her successor. As per the plaintiffs, Piara Singh was living with them at village Shikar, Tehsil Dera Baba Nanak and was used to be looked after by them. He, out of love and affection and in sound disposing mind, executed vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [2]. ***** his last Will on 15.05.1999 in favour of the plaintiffs bequeathing his entire land in their favour in equal shares and, thus, after the death of Piara Singh, they have become owner of the land in dispute, i.e. 4/15 share, in equal shares, but the defendant, in collusion and in conspiracy with the revenue officials, got the mutation of inheritance of the estate of Piara Singh sanctioned in favour of Dhanni and Jawand Singh in equal shares, but the said mutation is stated to be illegal because both Dhanni and Jawand Singh had pre-deceased Piara Singh and mutation of inheritance in their favour could not have been sanctioned and is void ab-initio. The plaintiffs, thus, prayed for declaration and consequential relief of permanent injunction and in the alternative, if they are dispossessed from the suit land or not found to be in possession thereof, they would be granted the relief of possession. It was also prayed that as per Schedule II of the Hindu Succession Act, 1956, the plaintiffs and the defendant were entitled to inherit the estate of deceased Piara Singh in equal shares, i.e. 2/3 share by the plaintiffs and 1/3 share by the defendant out of entire 4/15 share and, thus, the plaintiffs were entitled to 8/45 share of Piara Singh in case they are not found to be entitled for first relief of declaration, as prayed for. In the written statement, it was admitted by the defendant that Piara Singh had expired, but denied that her brothers and sisters had pre- deceased him. The suit was contested on the ground that it was bad for non- joinder of the necessary parties as Joginder Kaur was proper and necessary party to the suit, who was not impleaded as a defendant. It was denied that any valid and final Will was executed by Piara Singh in favour of the vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [3]. ***** plaintiffs, rather it was submitted that mutation has already been sanctioned on the basis of inheritance with the consent of the plaintiffs and they are now estopped by their own act and conduct to challenge the mutation and to file the present suit. The plaintiffs filed replication denying the averments made in the written statement and reiterating the averments made in the plaint. On the pleadings of the parties, following issues were framed:-
“1. Whether the plaintiffs are entitled to decree for declaration as prayed for in the head note of the plaint?.OPP.
2. Whether the plaintiffs are entitled to decree for permanent injunction as prayed for in the head note of the plaint?.OPP.
3. Whether the plaintiffs are entitled to a decree of possession of the suit land as an alternative relief?.OPP.
4. Whether the suit filed by the plaintiff is not maintainable?.OPD.
5. Whether the suit filed by the plaintiffs is without any cause of action?.OPD.
6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?.OPD. 6A. Whether Piara Singh had executed a legal and valid Will dated 15.5.1999 in favour of vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [4]. ***** plaintiffs?.OPP. 6B. If issue no.1 to 3 and 6A are not proved, whether the plaintiffs are entitled to the decree of declaration as prayed for, in alternative in the head note of plaint?.OPD.
7. Relief.”
. In order to prove their case, the plaintiffs examined Gurnam Singh as PW1, Jagir Singh as PW2 and plaintiff Appar Singh himself stepped into witness box as PW3 and produced Will dated 15.05.1999 as Ex.P1, copy of voter list as Ex.P2, voter ID card of Piara Singh as Ex.P3, jamabandi qua the suit land for the year 1997-98 as Ex.P4 and khasra girdawari qua the suit land for the year 2003-04 as Ex.P5. On the other hand, the defendant Darshan Singh himself stepped into witness box as DW1 and examined Gurmit Singh as DW2 and produced various documents in his documentary evidence. In rebuttal, the plaintiffs tendered death certificate of Jawand Singh as Ex.P6, death certificate of Banta Singh as Ex.P7, death certificate of Piara Singh as Ex.P8, death certificate of Harbans Singh as Ex.P9 and death certificate of Dhanni as Ex.P10. The Trial Court dismissed the suit of the plaintiffs holding that due execution of the Will by producing two attesting witnesses, namely, Gurnam Singh and Jagir Singh is not sufficient as the Will is found to be shrouded by suspicious circumstances. It was held that the first suspicious circumstance was that though the Will was allegedly scribed by the Deed vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [5]. ***** Writer, his name, number or signatures were not there on the Will, nor he was examined. It was also held that though the Will was scribed in Tehsil Complex, Dera Baba Nanak, but still it was not got registered and the Will was never presented before the Revenue Officer for getting the mutation sanctioned by the beneficiaries. Besides that, the Trial Court found certain discrepancies in the statements of both the attesting witnesses. Aggrieved against the judgment and decree of the Trial Court, the plaintiffs had filed the appeal which has been allowed. The lower Appellate Court had observed that there is no legal requirement for the Will to be compulsorily registered and all that has to be proved by the propounder of the Will that the Testator was in sound disposing mind and acted voluntarily for the purpose of bequeathing his property. The Will is required to be attested at least by two witnesses as per Section 63(c) of the Indian Succession Act, 1925 and required to be proved by at least one attesting witness as per Section 68 of the Indian Evidence Act, 1872. The lower Appellate Court had found that the plaintiffs had examined both the attesting witnesses, namely, Gurnam Singh (PW1) and Jagir Singh (PW2), who have successfully deposed that the testator had executed the Will in their presence while being in sound disposing mind and they had attested the signatures of the testator. Though the Will is typed in Punjabi, but it has also been mentioned that the Will was read over and explained to the testator by the concerned typist and, thereafter, admitting it to be correct, the testator put his thumb impressions on it. In regard to the suspicious circumstance that the Will was executed on 15.05.1999 and the testator had vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [6]. ***** died on 17.07.1999, it was not brought to the notice of the Revenue Officer for the purpose of seeking sanction of mutation, it has been held that the mutation regarding the estate of Piara Singh was sanctioned on 06.02.2004 (Ex.D1) when Darshan Singh (defendant) produced the death certificate of Dhanni, sister of Piara Singh before the revenue authorities, and the present suit was filed on 27.04.2004 by the plaintiffs. Thus, the plaintiffs had filed the suit as soon as they came to know that the mutation was sanctioned on 06.02.2004 in favour of the defendant on the basis of natural succession and it would hardly make any difference that the Will was not brought to the notice of the revenue authorities earlier by way of seeking mutation on the basis thereof. It was also observed that the plaintiffs had placed on record death certificate of Dhanni (Ex.P10), which reflected that she had died on 07.10.1989, but still the mutation was sanctioned in her favour on 06.02.2004 by the revenue authorities. Dhanni, mother of the defendant, expired about 10 years prior to the death of the testator Piara Singh, who had expired on 17.07.1999. In these circumstances, the lower Appellate Court had also found that Joginder Kaur was not a necessary party because the defendant had failed to prove on record as to how Joginder Kaur was related to the parties. Thus, the suit of the plaintiffs was decreed by the lower Appellate Court holding that they have successfully proved the execution of the Will by deceased Piara Singh in their favour. Learned counsel for the appellant has argued that all the natural heirs are necessary parties, where a Will is set up to claim property under the Will to the exclusion of the natural heirs. She has also submitted that vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [7]. ***** execution and attestation of the Will is not the same thing, rather the propounder of the Will is required to make averments regarding attestation of the Will in his pleadings. In support of her submission, she has relied upon a judgment of this Court in the case of Gurcharan Singh and others v. Bachint Kaur and others, 2010 LawSuit (P&H) 372. In Gurcharan Singh's case (supra), pleaded case of the plaintiff/appellants was that Arjan Singh was owner of the suit land. Plaintiff/appellants and defendant no.2 were the sons of Arjan Singh, while Bachint Kaur was his widow. Arjan Singh had one more son, namely, Sukhdev Singh, who pre-deceased him. Arjan Singh had two daughters, one pre-deceased him and another daughter was Jagdish Kaur, who was married. On 17.08.1972, Arjan Singh executed a Will in favour of his five sons out of love and affection. The suit was contested by the defendants on the ground that the suit was bad for non-joinder of necessary parties as Jagdish Kaur D/o Arjan Singh, Jaswant Singh S/o Sukhdev Singh S/o Arjan Singh, Smt. Baljit Kaur, Paramjit Kaur daughters of Sukhdev Singh were necessary parties to the suit being legal heirs of Arjan Singh. On the pleadings of the parties, as many as nine issues were framed in that suit in which issue no.1 was that “Whether the suit is bad for mis-joinder of necessary parties?.OPD.”
. It was observed in the judgment that before the lower Appellate Court, the finding on issue no.1 was only challenged which was reversed and was, thus, challenged in the second appeal as well and in that regard, it was held by this Court in the said case that the natural heirs, who have been excluded by way of Will, should also have been impleaded vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [8]. ***** as parties and, thus, suit was bad for non-joinder of the necessary parties. On the other hand, in the present case, the defendant had raised objection that the suit was bad for non-joinder of the necessary parties as Joginder Kaur, who was a necessary party to the suit, was not impleaded. On the pleadings of the parties, various issues were framed, but none of the issue was framed about the non-joinder of the necessary parties. Be that as it may, the lower Appellate Court has categorically recorded a finding in para 20 of its judgment that though the defendant had taken a plea that Joginder Kaur is a necessary party and should have been arrayed as a defendant in the suit, but he has failed to lead any evidence to prove on the file as to how Joginder Kaur is related to the parties. In the absence of evidence having been led about the relationship of Joginder Kaur with the parties, much-less the testator, the arguments raised by learned counsel for the appellant is totally inconsequential and is rejected. So far as the argument raised by learned counsel for the appellant that the plaintiffs were required to make an averment about the attestation of the Will also as the execution and attestation are two separate things, it would be suffice to note that attestation is a part of procedure in the execution of the Will in which the testator, with his sound disposing mind and free will, bequeaths his property to the person(s) of his choice and in that process, as per Section 63(c) of the Indian Succession Act, 1925, two witnesses are required to attest that the testator had put his signatures in their presence. Thus, I do not find any merit in this submission of the learned vinod kumar 2014.07.02 15:09 I attest to the accuracy and integrity of this document Chandigarh RSA No.2434 of 2014 (O&M) [9]. ***** counsel for the appellant as well since the defendant alone was claiming the property of Piara Singh on the basis of being his sister's son by way of natural succession, whereas the plaintiffs have successfully proved due execution of the Will to claim the suit property. In view thereof, I do not find any merit in the present appeal and hence, the same is hereby dismissed. June 30, 2014 (RAKESH KUMAR JAIN) vinod* JUDGE