Tej Pal Singh And Others vs Hem Lata on 9 December, 2009

RSA No.4254 of 2006 (O&M)                                                    1

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, plaitniff-

appellant had filed a suit for declaration with consequential relief
RSA No.4254 of 2006 (O&M) 2

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, defendant-

respondent 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
RSA No.4254 of 2006 (O&M) 3

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
RSA No.4254 of 2006 (O&M) 4

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

3. Relief.”

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
RSA No.4254 of 2006 (O&M) 5

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