Punjab-Haryana High Court
Bhagwan Kaur vs Malwinder Singh And Others on 8 July, 2009
Author: Sabina
Bench: Sabina
R.S.A.No. 62 of 1996 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 62 of 1996
Date of decision: 8.7.2009
Bhagwan Kaur
......Appellant
Versus
Malwinder Singh and others
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.A.S.Jattana, Advocate,
for the appellant.
Mr.N.S.Virk, for respondent Nos. 1 and 3.
Mr.D.D.Sharma, Advocate
for respondent No.2.
****
SABINA, J.
Plaintiff Malwinder Singh filed a suit for declaration to the effect that he was the owner in possession of the suit property and for permanent injunction restraining defendant No.1-appellant from interfering into the suit land. The suit of the plaintiff was decreed by the Sub Judge (Ist Class) Barnala vide judgment and decree dated R.S.A.No. 62 of 1996 2 4.1.1991 and in appeal, the same were upheld by the Additional District Judge, Barnala vide judgment and decree dated 9.5.1995. Hence, the present appeal .
Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:-
"Pritam Singh son of Lal Singh resident of Pakho Kalan held and possessed the suit property fully detailed in the head note of the plaint. He initially married appellant Bhagwan Kaur but was not blessed with any child and he ultimately married defendant Manjit Kaur (respondent No.2 before me) whereafter appellant left him and went to her parents leading to dispute (between Pritam Singh and appellant Bhagwan Kaur) over the maintenance resulting into compromise on acceptance of Rs.5,000/- towards maintenance allowance in lump sum vide writing dated 1.6.1985;
Unfortunately said Pritam Singh was not blessed with any child out of his second marriage also. He, however being pleased with the services rendered to him by the plaintiff (sister's son) executed 'Will' dated 8.2.1985 in his (plaintiff) favour and got the same registered;
Plaintiff had been cultivating the land in dispute and that he possessed the same after his death R.S.A.No. 62 of 1996 3 as owner on the basis of 'Will'. He even got entered 'RAPAT' No.491 on 22.6.1987 for inheritance of deceased Pritam Singh on the basis of the 'Will' but Asstt. Collector, Ist grade Barnala vide order dated 12.1.1988 ignored the said 'Will' and mutated the property in the name of defendants illegally, against law and fact and hence was null and void, ineffective against his right;
Since defendant Bhagwan Kaur was out to oust him from the suit property forcibly on the basis of mutation order the suit for declaration and injunction as detailed in the head note of the plaint."
3. Defendant Bhagwan Kaur pleaded that deceased Pritam Singh had in fact executed 'Will' dated 14.10.1985 in her favour resulting into cancellation of 'Will' which he had executed in favour of the plaintiff. She also controverted other facts which figured in the plaint and asserted that she had never left her husband after induction of Manjit Kaur with whom he otherwise could not marry during the life time of his first wife and added that she was turned out of the house under threat only after last rites of deceased Pritam Singh had been performed by her. She denied have received any maintenance allowance of Rs. 5000/-. She also in addition asserted her possession over the suit R.S.A.No. 62 of 1996 4 property."
On the pleadings of the parties, following issues were framed by the trial Court:-
"1. Whether Pritam Singh, deceased executed a Will dated 8.2.1985 in favour of the plaintiff? OPP
2. Whether Pritam Singh, deceased executed a Will in favour of defendant No.1 on 14.10.1985? OPD 1-A. Whether the plaintiff is in possession of the suit land? OPP 2-A Whether the plaintiff is entitled to the injunction prayed for? OPD 2-B Whether the plaintiff is entitled to declaration prayed for? OPP 2-C Whether defendant Bhagwan Kaur has become the owner in possession of the suit land on the basis of Will dated 14.10.1985? OPD
3. Relief. "
After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed.
Plaintiff Malwinder Singh, who is the son of sister of deceased Pritam Singh, had filed a suit for declaration basing his claim on registered Will dated 8.2.1985. Bhagwan Kaur-defendant No.1, on the other hand, placed reliance on Will dated 14.10.1985.
In order to prove due execution of the Will dated R.S.A.No. 62 of 1996 5 8.2.1985, plaintiff examined PW-1 Piara Singh, one of the attesting witnesses of the Will. A Will speaks of the mind of the deceased after his death. In order to prove due execution of the Will, the propounder of the Will is required to examine at least one of the attesting witnesses of the Will. The propounder of the Will is required to establish that the Will in question was signed by the executant in the presence of the attesting witnesses and the attesting witnesses had attested the same in the presence of the executant. Although, registration of a Will is not compulsory yet registration of a Will goes a long way in establishing the genuineness of the Will. The execution of the Will relied upon by the plaintiff is admitted to have been executed in the later Will dated 14.10.1985 (Ex.D-1) set up by defendant No.1.
In order to prove the Will dated 8.2.1985 (Ex.P-1), PW-1 Piara Singh has deposed that Pritam Singh-executant was known to him personally. He was married to Bhagwan Kaur but no child was born to them. Thereafter, he got married to Manjit Kaur. However, no child was born to them also. Relations between Pritam Singh and Bhagwan Kaur were strained after Pritam Singh got married to Manjit Kaur and she (Bhagwan Kaur) left the matrimonial home. Pritam Singh was being looked after by the plaintiff. The Will was got typed at the instance of Pritam Singh. The contents of the Will were read over to Pritam Singh and he signed the same in token of correctness in his presence and in the presence of Sukhdev Singh, the other R.S.A.No. 62 of 1996 6 attesting witness of the Will. Pritam Singh was of sound disposing mind at the time of execution of the Will. Thereafter, the Will was presented for registration before the Sub Registrar. The contents of the Will were again read over to Pritam Singh at the time of registration and it was duly registered. Thus, the plaintiff had been successful in proving due execution of the Will dated 8.2.1985 (Ex.P-
1). The said Will cannot be said to be shrouded by suspicious circumstances.
The Will set up by Bhagwan Kaur-defendant No.1 is an un-registered document dated 14.10.1985 (Ex.D-1). Although, registration of the Will is not compulsory but since executant had got registered the first Will executed by him, the fact that the later Will set up by defendant No.1 was not got registered makes it a suspicious document. Will (Ex.D-1) was allegedly executed on 14.10.1985, whereas, Pritam Singh had died on 16.6.1987. Thus, deceased Pritam Singh had sufficient time to get the Will Ex.D-1 registered in case he had actually executed the same. Bhagwan Kaur-defendant No.1 was married to Pritam Singh but no child was born to them. In these circumstances, the execution of Will by Pritam Singh in favour of the plaintiff is natural. The plaintiff is not a stranger but is a son of sister of deceased Pritam Singh. Undisputedly, the plaintiff was residing with Pritam Singh. The said fact is also mentioned in the Will Ex. D-1. However, in the Will Ex.D-1, it had been stated that Malwinder Singh after execution of the Will had started harassing R.S.A.No. 62 of 1996 7 the executant Pritam Singh and Bhagwan Kaur. Had it been so, the executant of the Will would have made sure to get the Will Ex.D-1 registered to make sure that the plaintiff did not derive any benefit from the earlier registered Will Ex.P-1. However, Will Ex.D-1 was not got registered by the executant. DW-1 Jagat Singh has also deposed to the effect that earlier Pritam Singh was married to Bhagwan Kaur but no child was born to them and thereafter, he got married to Manjit Kaur. However, no child was born to them also. Thus, it is evident that Pritam Singh had contracted second marriage with Manjit Kaur as no child was born to him and Bhagwan Kaur and apparently thereafter relations between them must have deteriorated and the possibility that deceased Pritam Singh would have executed a Will in favour of Bhagwan Kaur is remote. This also renders the Will Ex.D-1 the suspicious document.
In these circumstances, both the Courts below had rightly held that the plaintiff has been successful in proving the Will executed by deceased Pritam Singh in his favour on 8.2.1985 and had rightly decreed the suit of the plaintiff. The impugned judgments of the Courts below call for no interference.
No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.
(SABINA) JUDGE July 08, 2009 anita