Punjab-Haryana High Court
Gurdev Singh & Anr vs Bhajan Singh & Anr on 17 November, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.2395 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
RSA No.2395 of 2012(O&M)
Date of Decision:-November 17, 2012
Gurdev Singh & Anr.
......Appellants.
Versus
Bhajan Singh & Anr.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Ms. Reena Bains, Advocate for the appellants.
***
JASWANT SINGH, J.
CM No.11361-C of 2012 has been filed under Section 151 CPC for placing on record the Pedigree table(Annexure A-1).
CM is allowed and the Pedigree table(Annexure A-1) is taken on record.
CM No.6771-C of 2012 has been filed under Section 151 CPC seeking condonation of 13 days delay in refilling the appeal.
For the reasons stated in the application duly supported by affidavit of counsel for the appellants, the CM is allowed and delay of 13 days in refilling the present appeal is condoned.
RSA No.2395 of 2012
Plaintiffs/appellants are in second appeal against the judgment and decree passed by learned Additional District Judge, Fast RSA No.2395 of 2012(O&M) #2# Track Court, Jalandhar dated 15.12.2011, whereby the appeal filed by defendant nos.1 & 2 was allowed and consequently the suit of the plaintiffs was dismissed in toto and thus the findings returned by the learned Civil Judge(Jr. Divn.), Phillaur dated 21.11.2008 whereby their suit for declaration was allowed in part was reversed.
In brief, the facts of the case are that plaintiffs alleged that one Nazar Singh son of Basant Singh was owner of the land in dispute to the extent of 1/3rd share. Nazar Singh died on 4.4.2001 leaving behind five sons namely Gurdev Singh, Gurmej Singh, Gian Singh, Bhajan Singh and Gurmeet Singh and widow Chanan Kaur. It was further stated that after death of Nazar Singh all the legal heirs had become co-owners to the estate of Nazar Singh but Halqa Patwari had entered mutation in the names of defendants and Chanan Kaur bearing number 4516 on basis of Will dated 26.10.1998(Ex.P-6) which is totally wrong and the alleged Will dated 26.10.1998(Ex.P-6) executed by Nazar Singh is a forged and fabricated document and was never executed by him. It was further alleged in the plaint that the land is ancestral and, therefore, Nazar Singh did not have any right to execute the Will in favour of anybody. It was further alleged in the plaint that in the disputed Will, besides giving property to defendant nos.1,2 & 3(sons) in equal shares, wife was given 12 kanals of land for her maintenance which was to go after her death to Gian Singh. It was also pleaded that Chanan Kaur died on 31.7.2001 and thus in the alternative a prayer was made that if the Will is proved to be validly executed then the plaintiffs are entitled to the share of Chanan Kaur as per natural succession, who had become owner of the land as per RSA No.2395 of 2012(O&M) #3# Will dated 26.10.1998 to the extent of 1/5th share each.
Upon notice, defendants admitted the relationship between the parties. However, it was stated that the Will is a genuine document and the mutation was validly executed. It was further alleged that the dispute between the plaintiffs and the defendants stood resolved as per compromise dated 25.6.2001. However, plaintiffs are now not honouring the compromise and thus they have not come to the court with clean hands. It was further alleged in the written statement that Prakash, who is brother of Basant, father of Nazar and grandfather of the parties had given his share to the plaintiffs on the basis of family settlement which was acknowledged through the compromise, thus the plaintiffs cannot say that they had not received any property, as the impugned Will was executed keeping in view the fact that Prakash had already given his property to the plaintiffs.
From the pleadings of the parties issues were framed. Both sides lead evidence in support of their respective claims and after appreciating their evidence, learned trial Court had partly allowed the suit of the plaintiffs whereby the Will was upheld. However, the share which was given to Chanan Kaur through the Will was held to be Chanan Kaur's exclusive property and therefore the same was to devolve as per natural succession and not as per the Will.
Defendant nos.1 & 2 namely Gian Singh and Bhajan Singh went in appeal and the learned lower Appellate Court vide its judgment and decree dated 15.12.2011 allowed the same and consequently the suit of the plaintiffs was dismissed in toto. Hence the present second appeal.
RSA No.2395 of 2012(O&M) #4# I have heard learned Counsel for the plaintiffs/appellants and have also gone through the case file carefully with her able assistance.
Learned Counsel for the plaintiffs/appellants has argued that the learned lower Appellate Court has committed grave error by interpreting the Will in such a manner that Chanan Kaur had only a limited right in the 12 Kanals of land which was given to her as per the Will without considering the fact that as per the Will itself she was given the absolute right in the property. It was further argued that due to misreading of the document, the findings returned by learned lower Appellate Court suffers from perversity and hence is liable to be set aside.
After hearing learned Counsel for the plaintiffs/appellants, this Court is of the considered view that the present appeal is devoid of any merit and the same deserves to be dismissed. It is not in dispute that the Will executed by Nazar Singh has not been challenged before this Court as being a forged and fabricated document. It is further not in dispute that as per the Will, Chanan Kaur was given 12 Kanals of land along with tube well in the upper limb of the Will, but in the later portion it was mentioned that after death of Chanan Kaur, 12 Kanals of land along with electric motor will devolve upon Gian Singh(now deceased defendant no.1). Learned Counsel for the appellant has pointed out that the later portion of the Will whereby 12 Kanals of land has been given to Gian Singh is invalid. However a perusal of Section 88 of the Indian Succession Act clearly states that "Where two clauses of gifts in a Will are irreconcilable so that they cannot peacefully stand together the last shall prevail". In view of the clear provision in the Indian Succession RSA No.2395 of 2012(O&M) #5# Act, the effect to the Will has to be given accordingly, as it is clear that if there is any dispute or contradiction in two clauses in a Will, then the later part of the Will shall prevail over the earlier part. In the opinion of this Court, the interpretation of Section 88 of the Indian Succession Act cannot be taken to be in any other manner as has already been discussed above and neither the counsel for the appellant has been able to refer to any judgment which speaks of the interpretation otherwise as to what has been interpreted by this Court.
In view of the above, the arguments of the learned Counsel for the appellants regarding the earlier portion of the Will prevailing over the later portion does not hold any forte and the same is hereby rejected.
Consequently, finding no question of law much less substantial question of law arising for determination in the present second appeal, the same is hereby dismissed.
( JASWANT SINGH ) JUDGE November 17, 2012 Vinay