Punjab-Haryana High Court
Paramjit Kaur vs Harbhajan Kaur & Anr on 6 July, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1421 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.1421 of 2012(O&M)
Date of Decision:-06.07.2012
Paramjit Kaur.
......Appellant.
Versus
Harbhajan Kaur & Anr.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Arun Bansal, Advocate for the appellant.
***
JASWANT SINGH, J.
Plaintiff/appellant is in second appeal against the concurrent findings returned by both the courts below, whereby her suit for declaration claiming herself to be owner of 1/3rd share out of total land measuring 110 kanals 7 marlas with a consequential relief of joint possession was dismissed by the learned Civil Judge(Senior Division), Hoshiarpur vide its judgment and decree dated 31.07.2006 and the findings thereof have been affirmed in appeal by learned Additional District Judge, Hoshiarpur vide its judgment and decree dated 15.12.2011.
Brief facts for proper adjudication of the case are that plaintiff alleged that Chanan Singh son of Munsha Singh was owner in possession of RSA No.1421 of 2012(O&M) #2# the land as well as the house in question. Chanan Singh died on 18.11.1994 without any wife or son. Chanan Singh had four daughters namely Gurdev Kaur, Harbhajan Kaur, Gurbax Kaur and Surinder Kaur. It was further alleged that Gurdev Kaur and Surinder Kaur had predeceased Chanan Singh and therefore, it was stated that after the death of Chanan Singh, the property should have devolved upon the two daughters of Chanan Singh namely defendant nos.1 & 2/respondent nos.1 & 2 and upon the plaintiff/appellant being the sole legal heir of third daughter Gurdev Kaur who is her mother. It was further stated that the defendants manufactured a Will in their favour and got sanctioned the mutation no.1774 by ignoring the plaintiff and, therefore, the said Will be declared null and void with a consequential relief that the mutation sanctioned be also declared to be not binding upon the rights of the plaintiff.
Upon notice, defendants/respondents filed written statement whereby it was stated that it was the defendants who used to take care of their father namely Chanan Singh. It was further averred that the registered Will dated 14.10.1994 in favour of defendants is a valid document and the same was executed in a sound disposing mind. It was finally averred that the plaintiff used to live with her father when she was unmarried and after her marriage she has started living with her husband at village Saffipur, Tehsil and District Jalandhar. Thus, prayer was made for dismissal of the suit.
Replication was filed wherein the entire contents of the plaint were reiterated and those of the written statement were denied.
From the pleadings of the parties issues were framed. Both RSA No.1421 of 2012(O&M) #3# sides led their evidence in support of their respective claims and after appreciating their evidence, learned trial Court dismissed the suit vide its judgment and decree dated 31.07.2006 and findings thereof have been affirmed in appeal by learned lower Appellate Court vide its judgment and decree dated 15.12.2011. Hence the present second appeal.
I have heard learned Counsel for the appellant and have gone through the case file carefully with his able assistance.
Learned Counsel for the appellant has vehemently argued that both the courts below have misread the evidence on record, whereby it is proved that the Will in dispute is not a genuine document, still both the courts below have held the same to be validly executed and therefore, the findings returned are perverse.
After hearing learned Counsel for the appellant, this Court is of the considered view that the sole question that arises for determination here is as to whether the Will has been duly proved by the defendants/respondents as per law or not. In order to discharge their onus, the defendants have examined the scribe(Gurmukh Singh, deed writer)as DW-1 as well as attesting witness namely Ramlok, lambardar as DW-3 who have duly proved the Will by stating that the said Will was executed as per law in front of them on the instructions of the deceased Chanan Singh. No counter to the said deposition has been pointed out by the learned Counsel for the appellant at the time of arguments. The contention of the learned Counsel for the appellant that the Will is a forged and fabricated document has been dealt with by the learned lower Appellate Court in its paragraph no.13 which would be appropriate to be reproduced herein below:-
RSA No.1421 of 2012(O&M) #4#
" It is the main contention of learned Counsel for the
appellant/plaintiff that Will Ex.D-2 is forged and fabricated and it was not executed by Chanan Singh during his life time. This contention is devoid of any merits. The appellant/plaintiff has failed to prove on record that how the Will Ex.D-2 is result of fraud, forgery and undue influence. Mere assertion on the part of the plaintiff is not suffice to prove this fact that Will Ex.D-2 is the result of fraud and forgery. It is to be proved by the plaintiff by leading cogent and convincing evidence on the file. Rule 4 of Order 6 CPC provides that in all cases in which the party pleadings relies on any misrepresentation, breach of trust, fraud or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars with date and item if necessary shall be stated in the pleadings. Plea of undue influence cannot be made out from the general allegation in the plaint. While it is true that undue influence, fraud and misrepresentation are cognate vices and may in part overlap in some cases, but they are in law distint categories and in view of Order 6 Rule 4 CPC read with Order 6 Rule 2 CPC, required to be separately pleaded with specificity, particularity and precision. A vague or general plea of fraud and forgery can never service any purpose. The party pleadings must, therefore, be required to plead the precise nature of RSA No.1421 of 2012(O&M) #5# influence exercised, the manner and use of influence and the unfair advantage obtained by the others. Where fraud is alleged against the defendants, the plaintiff must set forth the particulars of the fraud which she alleges. Whereas in the present case, in the plaint, filed by the plaintiff, the plaintiff had not made it clear the fraud, forgery and undue influence exercised by defendants regarding the execution of Will by Chanan Singh in their favour."
It is also not in dispute that the Will Ex.D-2 is a registered document and a presumption is attached to the due execution of the same until and unless it is rebutted with concrete evidence. As pointed out earlier, there is no evidence much less substantial in nature so as to infer any kind of forgery that might have been done by the respondents. It has also come on record that plaintiff used to reside with her father and uncle and that the plaintiff/appellant had left the house of deceased Chanan Singh after passing 5th class. The said admission has come from none else than the brother of the father of the plaintiff i.e. Atma Singh who was examined by the plaintiff herself as PW-1. Not only this, the defendants had examined the handwriting expert as DW-11 who has compared the thumb impression of Chanan Singh on the Will with the admitted thumb impressions and had stated that the same are of deceased Chanan Singh. In view of the above overwhelming evidence in terms of documentary as well as oral, this court does not find any infirmity or illegality in the concurrent findings that have been returned by both the courts below against the appellant.
In view of the above, finding no question of law much less RSA No.1421 of 2012(O&M) #6# substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE July 06, 2012 Vinay