RSA No.2486 of 2004 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2486 of 2004(O & M)
Date of Decision: 09.12.2008
Sarup Singh & anr.
....appellants
Versus
Roshan Singh & Ors.
.....respondents
CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG
Present: Mr.Karminder Singh,Advocate
for the appellants
Mr.Animesh Sharma, Advocate
for the respondents
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RAKESH KUMAR GARG J.
This is plaintiffs’ second appeal challenging the judgment
and decrees of the Courts below whereby suit of the plaintiffs for
declaration to the effect that the plaintiffs and defendant No.6 to 28 are
joint owners in possession of suit land and the sale deed dated 15.03.1995,
21.03.1995 and 10.05.1995 alleged to have been executed by the
deceased Parkash Kaur in favour of defendants No.1 to 3 respectively and
that the alleged Will dated 29.03.1995 are the result of fraud and forgery
committed by defendant Nos.1 to 5 and hence are null and void with
consequential relief of permanent injunction restraining the defendant
Nos.1 to 5 from interfering in the possession of and forcibly dispossessing
the plaintiffs and defendants No. 6 to 28 therefrom, has been dismissed.
In brief, the case of the plaintiff-appellants was that the suit
land had been joint ownership of Kartar Singh and Daulat Singh sons of
Puran Singh and they inherited the same from their father and was
ancestral property; that after the death of Kartar Singh, his ½ share in the
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suit property was inherited by plaintiffs and defendant no.6 in equal shares;
that after the death of Daulat Singh, his ½ share in the suit property was
inherited by his widow Parkash Kaur and she died issueless on 30.5.1995;
that Daulat Singh was having two brothers Kartar Singh and Joginder
Singh, and two sisters, namely, Kartari and Durgi and all of them pre-
deceased Parkash Kaur and the plaintiffs and defendant No. 6 to 28 were
sons and daughters of the aforesaid brothers and sisters of the deceased
Daulat Singh and had succeeded to the estate of Parkash Kaur, after her
death; that defendant No.1 Roshan Singh was brother of deceased
Parkash Kaur, while defendants No. 2 to 5 were sons of defendant no.1;
that deceased Parkash Kaur started showing signs of fickle mind and her
mental condition started decaying about 2/3 years prior to her death, after
which she became easily susceptible to impression and influence; that the
condition of Parkash Kaur further deteriorated during the last year of her
life and she almost became of imbecile mind and lost the senses of free
and independent judgment and discretion; that after the death of Parkash
Kaur, defendants no.1 to 5 started alleging that she had executed sale
deed dated 15.3.1999 in favour of defendant no.1. Another sale deed
dated 29.3.1995 in favour of defendant no.2 and the sale deed dated
10.5.1999 in favour of defendant no.3 out of the property in dispute; that
defendants No. 1 to 5 further alleged that Prakash Kaur executed a Will
dated 29.3.1995 in favour of defendants no. 2 to 4; that the alleged sale
deeds and the Will were the result of fraud and forgery committed by
defendants No.1 to 5 upon Parkash Kaur; that the plaintiffs requested the
defendants to admit their claim with respect to the property in dispute but
they refused to do so. Hence the suit.
The suit was contested by defendants No.1 to 5 jointly
taking up preliminary objections that the suit was barred under Order 2
Rule 2 CPC. After the death of Smt. Parkash Kaur, the cause of action of
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the present suit accrued to the plaintiffs but the plaintiff No.1 filed suit for
injunction against the defendants No. 1 to 3 in which the sale deeds and
the Will were referred to and the said suit was dismissed by the court of
Shri Surinder Gupta, learned Additional Civil Judge (Senior Division),
Hoshiarpur vide judgment dated 3.11.1997 and present plaintiff No.2 was
also impleaded as a party in the said suit. The present plaintiffs, however,
did not claim the relief of the present case in the said previous suit; that
the suit of the plaintiffs was barred under Order 23, Rule 1(4) of the CPC
as the earlier suit filed by plaintiff No.1 for declaration against the
answering defendants in which the sale deeds which are in issue in the
present case were challenged and present plaintiff Gurmukh Singh was
impleaded as defendant No.4 and the said suit was dismissed as
withdrawn by the court of Shri Jaspal Verma, the then Civil Judge (Junior
Division), Hoshiarpur, on 22.4.1998; that the plaintiffs had no locus-standi
to file the present suit. On merits, it was claimed that though the property
in dispute was earlier owned by Kartar Singh and Daulat Singh but Joga
Singh, another brother of Daulat Singh also inherited property from his
father. It was averred that Parkash Kaur was being looked-after by
contesting defendants and her treatment was got done by the answering
defendants, and the plaintiffs never cared for the welfare of Parkash Kaur.
It was averred that Parkash Kaur during her life time executed legal and
valid Will dated 29.3.1995 in favour of the defendants, on the basis of
which they inherited the property of Parkash Kaur. It was averred that
Parkash Kaur executed three sale deeds for valuable consideration in
favour of defendants No. 1 to 3 who had become owners of the land
purchased under the sale deeds and entered in possession of the land.
The defendants denying the rest of the averments of the plaint, prayed for
dismissal of the suit.
On the basis of the pleadings of the parties, the trial Court
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framed the following issues:
1. Whether the plaintiffs along with defendants No. 6 to 28
are joint owners in possession of the suit land?OPP
2. Whether impugned sale deeds dated 15.03.1995,
21.03.1995 and 10.05.1995 alleged to have been
executed by Parkash Kaur in favour of defendant Nos.1
to 3 respectively; as also whether alleged Will dated
29.03.1995 are the result of fraud and forgery committed
by defendants No. 1 to 5 and hence, null and void qua
the rights of plaintiff and defendant nos. 6 to 28, in the
present suit?OPP
3. Whether the plaintiffs are entitled to grant of permanent
injunction as prayed for? Or in the alternative for joint
possession of the suit land as prayed for? OPP
4. Whether the suit of the plaintiff is barred under Order 2
Rule 2(3) CPC? OPD
5. Whether the present suit is barred under Order 23, Rule
1(4) CPC?OPD
6. Whether the plaintiffs have got no locus-standi to file the
present suit?OPD
7. Whether the suit is bad for not complying with the
provisions of Order 7 Rule 1(J) CPC? OPD
8. Relief.
After hearing the learned counsel for the parties, the trial
Court returned the findings holding that the Will dated 29.03.1995 Ex.D1
and the sale deeds dated 10.05.95, 29.03.1995 and 15.03.1995 were
validly executed by Parkash Kaur and issues no. 1 to 3 were accordingly
decided against the plaintiffs and in favour of contesting defendants.
Issues No. 4,5,6 and 7 however were decided against the defendants and
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suit of the plaintiffs was accordingly ordered to be dismissed with no orders
as to costs.
Feeling aggrieved from the same, the plaintiffs filed an
appeal which was also dismissed by the Additional District Judge,
Hoshiarpur vide impugned judgment and decree dated 10.03.2004.
Still not satisfied, the plaintiffs have filed the instant appeal
challenging the judgment and decrees of the Courts below by raising the
following the substantial questions of law:
1. Whether the courts below can misread and mis-interpret
the evidence before coming to the conclusion that the
Sale Deeds in which not a single penny was paid at the
time of registration of the sale deed was a legal
document?
2. Whether the executant who was suffering from cancer
and was mentally incapacitate can execute a WILL in his
unsound and indisposing mind?
In support of his case, learned counsel for the appellants
has vehemently argued that the Will as well as registered sale deeds are
surrounded by suspicious circumstances which have been proved on the
file. The deceased Testator was not in need of any money and the land in
question had been sold without any legal necessity. Moreover, neither a
single penny was paid before the Sub-Registrar at the time of registration
of the sale deeds nor any amount was deposited in the account of Parkash
Kaur, deceased. There was no occasion for the deceased Parkash Kaur to
spend such a huge sum. Learned counsel has further argued that Roshan
Singh, attorney of Parkash Kaur has no authority to sell the land and thus
the reasons recorded by the Courts below non-suiting the plaintiffs are
totally perverse. The counsel further contended that sale deeds were got
executed by playing fraud with Parkash Kaur and the judgment and
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decrees of the Courts below are liable to be set aside and the
plaintiffs/appellants are entitled to decree as prayed.
On the other hand, learned counsel for the respondents has
supported the findings of the Courts below and has argued that both the
Courts below on appreciation of evidence have recorded a concurrent
finding of fact and no question of law arises in this appeal and the same is
liable to be dismissed.
I have heard learned counsel for the parties and perused
the record. The plea of the appellants that at the time of execution of the
Will and the sale deeds, Parkash Kaur was not well, is not supported by
any evidence except bald statement of the plaintiffs. The
plaintiffs/respondents have not placed on record any other evidence. On
the other hand, DW2 Madho Singh and DW3 Manohar have stated
positively that at the time of execution of the Will, Parkash Kaur was in
sound disposing mind, though, according to the plaintiffs they had been
giving treatment to Parkash Kaur, yet no medical record was placed on
judicial file. It was also admitted by plaintiff Sarup Singh that Parkash Kaur
was not being treated for any type of mental illness and she was only
having fever which by any stretch of imagination cannot be said to have
affected the mental capacity of a person. Another aspect of the case is that
Parkash Kaur, after execution of the Will, appeared before the Sub-
Registrar to admit the execution of the Will at the time of registration of the
sale deeds which belie the case of the plaintiffs regarding Parkash Kaur
being of a fickle mind at the time of execution of the Will. In view of the
above, no fault can be found in the execution of the Will in favour of the
defendants. The second contention of the learned counsel for the
appellants that the contesting defendants got executed their sale deeds
Ex.D-2, Ex.D-4 and Ex.D-5 and the power of attorney Ex.D-3 from Parkash
Kaur by playing fraud and concealment is also without any basis. The
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plaintiffs/appellants did not allege the circumstances under which the fraud
and misrepresentation was played upon Parkash Kaur in getting executed
these three sale deeds in question nor any such evidence had been
adduced.
No plea was taken by the plaintiff-appellants that the sale
deeds were without consideration. The execution of the sale deeds is not
denied by the plaintiff appellants. Otherwise also the due execution of the
three sale deeds had been proved on behalf of the defendants by
examining DW2 Madho Singh and DW3 Manohar, attesting witnesses and
from the testimony of DW-3 Kulwinder Singh defendant. The plaintiff-
appellants being strangers to the sale deeds could not even otherwise
challenge the sale deeds claiming the same to be without consideration. I
am supported in my view by a judgment of this Court in the case of State
of Punjab Vs. Gurmel Singh 2003(2) Civil Court Cases-115(P & H).
For the reasons recorded above, I find no merit in this
appeal.
No substantial question of law arises.
Dismissed.
(RAKESH KUMAR GARG)
JUDGE
09.12.2008
neenu