R.S.A.No. 62 of 1996 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 62 of 1996
Date of decision: 8.7.2009
Bhagwan Kaur
......Appellant
Versus
Malwinder Singh and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.A.S.Jattana, Advocate,
for the appellant.
Mr.N.S.Virk, for respondent Nos. 1 and 3.
Mr.D.D.Sharma, Advocate
for respondent No.2.
****
SABINA, J.
Plaintiff Malwinder Singh filed a suit for declaration to the
effect that he was the owner in possession of the suit property and
for permanent injunction restraining defendant No.1-appellant from
interfering into the suit land. The suit of the plaintiff was decreed by
the Sub Judge (Ist Class) Barnala vide judgment and decree dated
R.S.A.No. 62 of 1996 2
4.1.1991 and in appeal, the same were upheld by the Additional
District Judge, Barnala vide judgment and decree dated 9.5.1995.
Hence, the present appeal .
Brief facts of the case, as noticed by the lower appellate
Court in para Nos. 2 and 3 of its judgment, are as under:-
“Pritam Singh son of Lal Singh resident of Pakho Kalan
held and possessed the suit property fully detailed in the
head note of the plaint. He initially married appellant
Bhagwan Kaur but was not blessed with any child and he
ultimately married defendant Manjit Kaur (respondent
No.2 before me) whereafter appellant left him and went to
her parents leading to dispute (between Pritam Singh and
appellant Bhagwan Kaur) over the maintenance resulting
into compromise on acceptance of Rs.5,000/- towards
maintenance allowance in lump sum vide writing dated
1.6.1985;
Unfortunately said Pritam Singh was not
blessed with any child out of his second marriage also.
He, however being pleased with the services rendered to
him by the plaintiff (sister’s son) executed ‘Will’ dated
8.2.1985 in his (plaintiff) favour and got the same
registered;
Plaintiff had been cultivating the land in
dispute and that he possessed the same after his death
R.S.A.No. 62 of 1996 3as owner on the basis of ‘Will’. He even got entered
‘RAPAT’ No.491 on 22.6.1987 for inheritance of deceased
Pritam Singh on the basis of the ‘Will’ but Asstt. Collector,
Ist grade Barnala vide order dated 12.1.1988 ignored the
said ‘Will’ and mutated the property in the name of
defendants illegally, against law and fact and hence was
null and void, ineffective against his right;
Since defendant Bhagwan Kaur was out to
oust him from the suit property forcibly on the basis of
mutation order the suit for declaration and injunction as
detailed in the head note of the plaint.”
3. Defendant Bhagwan Kaur pleaded that deceased
Pritam Singh had in fact executed ‘Will’ dated
14.10.1985 in her favour resulting into cancellation of
‘Will’ which he had executed in favour of the plaintiff.
She also controverted other facts which figured in the
plaint and asserted that she had never left her husband
after induction of Manjit Kaur with whom he otherwise
could not marry during the life time of his first wife and
added that she was turned out of the house under
threat only after last rites of deceased Pritam Singh had
been performed by her. She denied have received any
maintenance allowance of Rs. 5000/-. She also in
addition asserted her possession over the suit
R.S.A.No. 62 of 1996 4property.”
On the pleadings of the parties, following issues were
framed by the trial Court:-
“1. Whether Pritam Singh, deceased executed a
Will dated 8.2.1985 in favour of the plaintiff? OPP
2. Whether Pritam Singh, deceased executed a
Will in favour of defendant No.1 on 14.10.1985? OPD
1-A. Whether the plaintiff is in possession of the
suit land? OPP
2-A Whether the plaintiff is entitled to the
injunction prayed for? OPD
2-B Whether the plaintiff is entitled to declaration
prayed for? OPP
2-C Whether defendant Bhagwan Kaur has
become the owner in possession of the suit land on the
basis of Will dated 14.10.1985? OPD
3. Relief. “
After hearing learned counsel for the parties, I am of the
opinion that the present appeal deserves to be dismissed.
Plaintiff Malwinder Singh, who is the son of sister of
deceased Pritam Singh, had filed a suit for declaration basing his
claim on registered Will dated 8.2.1985. Bhagwan Kaur-defendant
No.1, on the other hand, placed reliance on Will dated 14.10.1985.
In order to prove due execution of the Will dated
R.S.A.No. 62 of 1996 5
8.2.1985, plaintiff examined PW-1 Piara Singh, one of the attesting
witnesses of the Will. A Will speaks of the mind of the deceased
after his death. In order to prove due execution of the Will, the
propounder of the Will is required to examine at least one of the
attesting witnesses of the Will. The propounder of the Will is
required to establish that the Will in question was signed by the
executant in the presence of the attesting witnesses and the attesting
witnesses had attested the same in the presence of the executant.
Although, registration of a Will is not compulsory yet registration of a
Will goes a long way in establishing the genuineness of the Will. The
execution of the Will relied upon by the plaintiff is admitted to have
been executed in the later Will dated 14.10.1985 (Ex.D-1) set up by
defendant No.1.
In order to prove the Will dated 8.2.1985 (Ex.P-1), PW-1
Piara Singh has deposed that Pritam Singh-executant was known to
him personally. He was married to Bhagwan Kaur but no child was
born to them. Thereafter, he got married to Manjit Kaur. However,
no child was born to them also. Relations between Pritam Singh and
Bhagwan Kaur were strained after Pritam Singh got married to Manjit
Kaur and she (Bhagwan Kaur) left the matrimonial home. Pritam
Singh was being looked after by the plaintiff. The Will was got typed
at the instance of Pritam Singh. The contents of the Will were read
over to Pritam Singh and he signed the same in token of correctness
in his presence and in the presence of Sukhdev Singh, the other
R.S.A.No. 62 of 1996 6
attesting witness of the Will. Pritam Singh was of sound disposing
mind at the time of execution of the Will. Thereafter, the Will was
presented for registration before the Sub Registrar. The contents of
the Will were again read over to Pritam Singh at the time of
registration and it was duly registered. Thus, the plaintiff had been
successful in proving due execution of the Will dated 8.2.1985 (Ex.P-
1). The said Will cannot be said to be shrouded by suspicious
circumstances.
The Will set up by Bhagwan Kaur-defendant No.1 is an
un-registered document dated 14.10.1985 (Ex.D-1). Although,
registration of the Will is not compulsory but since executant had got
registered the first Will executed by him, the fact that the later Will set
up by defendant No.1 was not got registered makes it a suspicious
document. Will (Ex.D-1) was allegedly executed on 14.10.1985,
whereas, Pritam Singh had died on 16.6.1987. Thus, deceased
Pritam Singh had sufficient time to get the Will Ex.D-1 registered in
case he had actually executed the same. Bhagwan Kaur-defendant
No.1 was married to Pritam Singh but no child was born to them. In
these circumstances, the execution of Will by Pritam Singh in favour
of the plaintiff is natural. The plaintiff is not a stranger but is a son of
sister of deceased Pritam Singh. Undisputedly, the plaintiff was
residing with Pritam Singh. The said fact is also mentioned in the
Will Ex. D-1. However, in the Will Ex.D-1, it had been stated that
Malwinder Singh after execution of the Will had started harassing
R.S.A.No. 62 of 1996 7
the executant Pritam Singh and Bhagwan Kaur. Had it been so, the
executant of the Will would have made sure to get the Will Ex.D-1
registered to make sure that the plaintiff did not derive any benefit
from the earlier registered Will Ex.P-1. However, Will Ex.D-1 was not
got registered by the executant. DW-1 Jagat Singh has also
deposed to the effect that earlier Pritam Singh was married to
Bhagwan Kaur but no child was born to them and thereafter, he got
married to Manjit Kaur. However, no child was born to them also.
Thus, it is evident that Pritam Singh had contracted second marriage
with Manjit Kaur as no child was born to him and Bhagwan Kaur and
apparently thereafter relations between them must have deteriorated
and the possibility that deceased Pritam Singh would have executed
a Will in favour of Bhagwan Kaur is remote. This also renders the
Will Ex.D-1 the suspicious document.
In these circumstances, both the Courts below had
rightly held that the plaintiff has been successful in proving the Will
executed by deceased Pritam Singh in his favour on 8.2.1985 and
had rightly decreed the suit of the plaintiff. The impugned judgments
of the Courts below call for no interference.
No substantial question of law arises in this regular
second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
July 08, 2009
anita