RSA No.1386 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.1386 of 2006
Date of Decision:30.01.2009
Dyal Singh & anr.
....appellants
Versus
Meeko & anr.
.....respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr.Anupam Bhardwaj,Advocate
for the appellants
Mr.B.S.Jaswal, Advocate
for respondent No.1.
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RAKESH KUMAR GARG J.
This is defendants’ second appeal challenging the judgment
and decrees of the Courts below whereby suit of the plaintiff-respondent for
declaration to the effect that she is the co-sharer to the extent of 1/4th
share of the share of Smt.Ishar Kaur d/o Hira Singh in the land as detailed
in the headnote of the plaint and mutation No.952 regarding the inheritance
of deceased Ishar Kaur sanctioned in the name of defendant is null and
void and for joint possession and for permanent injunction restraining the
defendant from alienating the suit land to anybody else, has been decreed.
As per the averments made in the suit, originally Ishar Kaur
d/o Hira Singh r/o village Bhinder, Tehsil Baba Bakala, was owner of the
suit land. Ishar Kaur was married at village Cheemabath with Inder Singh.
Out of that wedlock the plaintiff and the defendants were born and they are
the legal heirs of Ishar Kaur. In her last days of life Ishar Kaur and the
defendants were not in good terms with the plaintiff. She used to live with
the plaintiff at village Bhinder and died there. She also performed her last
RSA No.1386 of 2006 2
ceremonies. It was averred that Ishar Kaur died intestate and plaintiff
became co-sharer to the extent of 1/4th share in her property. It was further
stated that defendants are alleging that Ishar Kaur had executed a Will in
their favour. The alleged Will is forged. It was further pleaded that the
revenue authorities wrongly sanctioned mutation No.952 regarding the
inheritance of Ishar Kaur on the basis of the alleged Will. The plaintiff is
not bound by the order of the mutation. It was also pleaded that the plaintiff
requested the defendants not to alienate the land and to admit the claim of
the plaintiff but the defendants did not pay any heed to her request. Hence
this suit.
Upon notice the defendants contested the suit by filing
written statement alleging that Ishar Kaur executed a valid Will dated
12.10.1993 in their favour and mutation regarding the inheritance of Ishar
Kaur was legally sanctioned by revenue authorities in their favour. The
other averments in the plaint were denied and dismissal of the suit was
prayed for.
On considering the evidence on record, the trial Court came
to the conclusion that Will dated 12.10.1993 relied upon by the defendants
was surrounded by suspicious circumstances and the defendants have
failed to remove those suspicious circumstances. Therefore, the Will
cannot be accepted and therefore by way of natural succession plaintiff has
become co-sharer to the extent of 1/4th share of the land in dispute and
thus, decreed the suit of the plaintiff-respondent.
Appeal filed by the defendants against the aforesaid
judgment and decree of the trial Court was dismissed by the Additional
District Judge, Amritsar, vide impugned judgment and decree dated
23.02.2006. While dismissing the appeal, the Lower Appellate Court
observed as under:
“In this back drop, the appellants/defendants failed to dispel
RSA No.1386 of 2006 3the suspicious circumstances and the will in question
appears to be unnatural dis position and in this view of the
matter the trial Court has rightly excluded the will in question
and held the respondent/plaintiff to be entitled to the share in
the property on the basis of natural inheritance of Ishar
Kaur. From the evidence, brought on record, it stands amply
established that Ishar Kaur has 1/4thshare in the suit
property and after her death respondent/plaintiff together
with her brothers i.e. appellants/defendants inherited the
property of their mother. Therefore, the lower Court has
rightly held the respondent/plaintiff to be the owner/co-
sharer to the extent of ΒΌ share and relief of injunction has
rightly been granted to the respondent/plaintiff. Thus the
findings on issues No. 1, 2 and 3 are hereby affirmed.”
Still not satisfied, the defendants have filed the instant
appeal challenging the judgment and decrees of the courts below.
Learned counsel for the appellants has vehemently argued
that the exclusion of the plaintiff-respondent from inheritance of Ishar Kaur
in the Will Ex.D-1 stands fully explained as she had already been given
land measuring 39 kanal 11 marlas by the testator. It was further
contended that mere presence of one or the other beneficiary at the time of
execution of the Will per se is not a suspicious circumstance and therefore
the judgment and decrees of the Courts below are liable to be set aside
and the suit of the plaintiff is liable to be dismissed.
On the other hand, learned counsel for the respondent has
vehemently argued that the Courts below on appreciation of evidence have
recorded a concurrent finding of fact that Will in dispute is full of suspicious
circumstances and the appellants have failed to remove those suspicious
circumstances and therefore the same was rightly discarded by the Courts
RSA No.1386 of 2006 4
below and the appeal is liable to be dismissed as no substantial question of
law arises in this appeal.
I have heard learned counsel for the parties and perused
the record of the appeal. Admittedly, Ishar Kaur was original owner of the
suit property and the plaintiff and the defendants are children of Ishar Kaur.
The plaintiff had claimed succession being natural heir and the
defendants/appellants claimed inheritance on the basis of the Will dated
12.10.1993 allegedly executed by Ishar Kaur. Thus, the entire controversy
revolves around the fact that whether Ishar Kaur had executed any valid
Will in favour of the defendants/appellants or not. The Lower Appellate
Court considered the following reasons to discard the Will:
The plaintiff denied the execution of the Will by Ishar Kaur.
On the other hand, the defendants have proved the Will Ex.
D-1. Undisputedly, Ishar Kaur died on 21.12.1993. The Will
is dated 12.10.1993. The Will was got scribed in Tehsil
Complex Baba Bakala from regular deed writer. Yet, the Will
was not got registered in spite of the fact that the parties
came to execute the Will in Teshil Complex. In the Will, the
only reason for exclusion of the plaintiff-respondent is that
sufficient property was given to her as dowry at the time of
her marriage but no evidence has been placed on record to
prove this fact. It was also mentioned that 5 killas of land was
given to her as gift deed but there is no detail of this land.
Beneficiaries of the Will were also present at the time of
execution of the Will. Although, the Will is not to be
discarded only for this. But when this fact is considered along
with other attending circumstances, the presence of
beneficiaries at the time of execution of Will also becomes
one of the suspicious circumstances. The age of
RSA No.1386 of 2006 5the executant was stated to be about 75 years and she died
within two and a half month of the execution of the Will. The
defendants/appellants have failed to remove all these
suspicious circumstances.
Keeping in view all the aforesaid circumstances, the Courts
below have recorded a concurrent finding of fact that Will relied upon by
the appellants was surrounded by suspicious circumstances and the
appellants have failed to remove those suspicious circumstances and
therefore the Will cannot be accepted. The learned counsel for the
appellants was unable to show any perversity in the aforesaid findings of
the Courts below.
Thus, I find no merit in this appeal.
No substantial question of law arises.
Dismissed.
(RAKESH KUMAR GARG)
JUDGE
30.01.2009
neenu