High Court Punjab-Haryana High Court

Dyal Singh & Anr vs Meeko & Anr on 30 January, 2009

Punjab-Haryana High Court
Dyal Singh & Anr vs Meeko & Anr on 30 January, 2009
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.

                    ****

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 3

the 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 5

the 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