RSA NOS.1284 & 1285 OF 2008 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
DATE OF DECISION: 8.7.2008
1.RSA No.1284 of 2008 (O&M)
(Ranjit Singh & Others vs. Sukhraj Kaur and another)
2.RSA No.1285 of 2008 (O&M)
(Ranjit Singh & Others vs. Sukhraj Kaur and another)
CORAM
HON'BLE MR.JUSTICE PERMOD KOHLI
PRESENT: Mr.Karamvir Singh, Advocate for appellant
Permod Kohli, J. (Oral)
CM No.3784-C/2008 in
RSA No.1284 of 2008
This is an application for condonation of delay in re-filing
the appeal. For the reasons recorded therein, delay in re-filing is
condoned. CM disposed of.
CM No.3795-C/2008 in
RSA No.1284/2008
This is an application for impleadment of the L.Rs of Ranjit
Singh, plaintiff/appellant no.1 who died after the filing of this
appeal. The application is supported with affidavit. For the reasons
recorded therein, L.Rs of Ranjit Singh-plaintiff mentioned in para 1
of this application are taken on record subject to all just exceptions
and they are permitted to file this appeal.
RSA NOS.1284 & 1285 OF 2008 (O&M) :2: CM No.3787-C/2008 in RSA No.1285 of 2008
This is an application for condonation of delay in re-filing
the appeal. For the reasons recorded therein, delay in re-filing is
condoned. CM disposed of.
CM No.3798-C/2008 in
RSA No.1285/2008
This is an application for impleadment of the L.Rs of Ranjit
Singh, plaintiff/appellant no.1 who died after the filing of this
appeal. The application is supported with affidavit. For the reasons
recorded therein, L.Rs of Ranjit Singh-plaintiff mentioned in para 1
of this application are taken on record subject to all just exceptions
and they are permitted to file this appeal.
RSA Nos.1284 & 1285 of 2008
This order will dispose of RSA Nos.1284 and 1285 of 2008
as common questions of law and facts are involved in both these
appeals.
Appellants are plaintiffs in the suit. Plaintiffs no.1 and 2 and
defendant no.2 are real brothers whereas plaintiffs no.3 and 4 are
the sisters, defendant no.3 is mother. Defendant no.1 is the wife of
defendant no.2. Plaintiffs filed the suit challenging the sale deed
executed by defendant no.3 in favour of defendant no.1 on the
ground that the same has been obtained as a result of fraud,
misrepresentation and coercion and is without consideration. They
also claimed share in the property on the basis of natural
succession. The defendants resisted the suit denying the
allegations. They also pleaded that the suit is premature. During
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the pendency of the suit, defendant no.3 died and the defendants
no.1 and 2 set up a will executed by defendant no.3 in favour of
defendant no.2. It has been pleaded that defendant no.3 was
residing with defendants no.1 and 2 and in consideration of the
services rendered by defendants no.1 and 2, defendant no.3 has
executed the will in favour of defendant no.2, her son. On the basis
of the pleadings of the parties, following issues were framed:-
1.Whether the registered sale deed dated
27.11.1986 alleged to have been executed by
defendant no.3 in favour of defendant no.1 in
respect of the suit property is illegal, null and
void and the same does not confer any title in
favour of the defendant no.1, if so its effect?
OPP
2) If issue no.1 is proved, whether the plaintiff
is entitled to declaration, as prayed for? OPP
3)Whether the suit is properly valued for the
purpose of court fee and jurisdiction? OPP
4)Whether Smt. Ram Kaur executed valid and
registered Will in favour of defendant no.2 on
18.2.1986, if so, its effect? OPD
5.Whether defendant no.1 purchased the suit
land measuring 39 kanals 15 marlas from one
Ram Kaur through registered Sale deed dated
27.11.1996 for consideration? OPD
6.Whether defendants nos.1 and 2 are entitled
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for counter claim to the effect that defendant
no.2 Surjit Singh is owner in possession
regarding 1/6th share out of total 490 kanals 4
marlas fully detailed in the counter claim filed
by defendants nos.1 and 2? OPD
7.Whether the suit is barred by the principle of
resjudicata? OPD
8) Relief.
Parties led their respective evidence. During the course of
hearing, defendants no.1 and 2 gave up their claim on the basis of
the sale deed and claimed the property through the will dated
18.2.1986. Defendants also filed a counter claim seeking a decree
for share in the landed property claiming 1/6th share out of the land
measuring 940 kanals and 4 marlas specified in the counter claim
preferred by defendant no.2. The trial court took up issue no.4 for
consideration. It has been recorded that PW2-Mohar Singh, scribe
of the will in his testimony proved the will and its execution by
defendant no.3. The will has also been entered in the register of
the scribe which also bears the signature of deceased Ram Kaur,
defendant no.3 as also the marginal witnesses. Scribe specifically
stated that the will was prepared at the instance of Ram Kaur and it
was read over and explained to her and thereafter she put her
thumb impression on the will as also in the register. Marginal
witnesses also signed the will as also the register of the scribe. To
the same effect are the statements of DW2 Gurcharan Singh and
DW4 Thakur Singh, the marginal witnesses to the will. Defendants
RSA NOS.1284 & 1285 OF 2008 (O&M) :5:
no.1 and 2 also led evidence to prove that defendant no.3 was
living with them and they were looking after her needs and
necessity of life. On the basis of the evidence recorded, the trial
court came to the categorical findings that the defendants have
successfully proved the execution of the will by deceased Ram
Kaur and there is no suspicious circumstance. While arriving at this
conclusion, it has also been recorded that the deceased has
specifically mentioned in the will that her daughters are married
and she is living with the defendants no.1 and 2 and thus there
were sufficient circumstances for excluding the plaintiffs from the
inheritance of the property. The suit of the plaintiff/appellants
herein came to be dismissed vide judgment and decree dated
24.10.2005 and the counter claims of defendant no.2 have been
decreed by the trial court. The plaintiffs preferred two appeals
being CA Nos.128 and 127 of 2005 re-numbered as RT.FTC
No.80/2006 and 81/2005 in the Court of Additional District Judge
(Ad hoc) Fast Track Court, Muktsar. The lower appellate court
also scanned the evidence and found that the will being registered
and duly proved by the scribe and the witness is a valid document.
Resultantly, the appeals were dismissed vide judgment and decree
dated 26.10.2006 by affirming the findings of the trial court, both
on the question of validity of will and the counter claim. The
present appeals have been preferred against the judgments and
decrees of the courts below.
Mr.Singla, learned counsel for the appellants/plaintiffs has
contended that the defendants have failed to establish the due
RSA NOS.1284 & 1285 OF 2008 (O&M) :6:
execution of the will as required under Section 63 of the Indian
Succession Act. He has relied upon the judgments in the cases of
Dhaman v. Jiya Lall and others, AIR 2005 Punjab and
Haryana 191, Janki Narayan Bhoir v. Narayan Mandeo
Kadam, 2003 AIR (SC) 761, Moonga Devi and others v. Radha
Ballabh, AIR 1972 Supreme Court 1471 and Joginder Singh
alias Rajinder Singh v. Dharuv Singh, (P&H), 2003 (3) PLR
545 to argue that the marginal witnesses must state that the testator
signed the will in their presence, but in the present case, in the
statements of the marginal witnesses, there is no such averment.
I have carefully considered this aspect and also gone
through the statement of the marginal witnesses reproduced in the
memo of appeal. The marginal witnesses have specifically stated
that the testators signed in their presence. To the same effect is the
statement of the scribe. In my opinion, the argument is based upon
total misinterpretation of the statements of the witnesses. The
judgments relied upon by the learned counsel for the appellants
have no application to the facts and circumstances of the present
case. No substantial question of law arises. I find no merit in both
the appeals which are accordingly dismissed.
(PERMOD KOHLI)
JUDGE
8.7..2008
MFK
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