Punjab-Haryana High Court
Om Parkash vs Shanti Lal And Others on 6 February, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
RSA 238 of 1987 & Cross Objection No.18-C of 1988 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 238 of 1987 and
Cross Objections No. 18-C of 1988
Date of Decision: February 06, 2014
Om Parkash
... Appellant
Versus
Shanti Lal and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Ms. Upasna Dhawan, Advocate,
for the appellant.
Mr. Amit Jain, Advocate,
for the respondents.
Paramjeet Singh, J.
This second appeal is directed against the judgment and decree dated 28.02.1986 passed by learned Senior Sub Judge, Rohtak whereby the suit for declaration of the respondents-plaintiffs has been decreed, as well as, against the judgment and decree dated 16.10.1986 passed by the learned Additional District Judge (II), Rohtak whereby appeal preferred by the appellant-defendant has been dismissed.
The plaintiff-respondent no.1 has also filed cross-objections Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 2 against the judgment and decree dated 16.10.1986 passed by learned Additional District Judge (II), Rohtak.
For convenience sake, hereinafter parties will be referred to as they were arrayed in the Court of first instance i.e. appellant as defendant and respondents as plaintiffs.
The detailed facts are already recapitulated in the judgments of both the Courts below and are not required to be reproduced. However, the brief facts relevant for disposal of this second appeal are that plaintiffs, who are sons, daughters and grandsons of deceased Panju Ram filed a suit for declaration against defendant-Om Parkash, who is also son of deceased Panju Ram, alleging that the property in question situated within the revenue limits of Samar Gopalpur, Tehsil and District Rohtak was owned by Panju Ram. The said land was allotted to him by Rehabilitation Authorities in lieu of ancestral property abandoned by Panju Ram in Pakistan at the time of partition of the country in the year 1947. It was alleged that the plaintiffs have birth-right in the said property. Panju Ram died on 22.12.1975. After his death, mutation No. 3786 dated 08.10.1986 was sanctioned in respect of the agricultural land in favour of the plaintiffs and defendant in accordance with natural succession. Thereafter, on the application filed by the defendant alleging that he is owner in possession of the entire property on the basis of registered Will dated 05.01.1969 allegedly executed in his favour by said Panju Ram, the mutation earlier sanctioned was set aside by the revenue authorities and fresh mutation was sanctioned in favour of the defendant. It is also the case of the plaintiffs Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 3 that the alleged Will is surrounded by suspicious circumstances as it is an unnatural and unfair document and has been brought into existence by the propounder himself. This Will has not seen the light of the day for so many years and is not a valid Will, rather vide a writing dated 09.06.1970 written by deceased Panju Ram and addressed to the Postmaster, he clearly stated that the plaintiffs were entitled to all moveable and immovable properties of the deceased including the ornaments left by their mother in a locker in Punjab National Bank and Will has been cancelled.
The defendant contested the suit by raising objections that suit is barred by afflux of time; plaintiffs have got no locus standi to file the suit; the allegations levelled by the plaintiffs were also controverted. It was denied that the property in question is a coparcenary property. It was further pleaded that property in question was self-acquired property. Panju Ram had executed a Will dated 05.01.1969 in favour of the defendant. It is denied that it was cancelled vide letter dated 09.06.1970. When the Will was executed, Panju Ram was in sound disposing mind and the Will is free from any pressure.
On the pleadings of the parties, the Court of first instance framed the following issues:-
"1. Whether the land detailed in para no.2 of the plaint was ancestral coparcenary property with Panju deceased qua the plaintiff? OPP
2. Whether the Will dated 05.01.1969 allegedly made by Panju is not based on facts and against law and order dated 5.1.1969 of Revenue Officer sanctioning the mutation on the Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 4 basis of said Will as also that of Collector dated 14.6.1978, in appeal, are illegal, null and void and not binding on the plaintiff? OPP
3. Whether Panju Ram made any valid Will dated 9.6.1970 and thereby cancelled his previous Will dated 5.1.1969 and its effect? OPP
4. Whether the suit is barred by limitation? OPD
5. Whether the plaintiffs have no locus standi to file the suit?
OPD
6. Relief."
Thereafter, the parties were afforded opportunity to lead their respective evidence. After perusal of the evidence, the Court of first instance recorded a finding with regard to issue No.1 that the property in question is not ancestral property as the plaintiffs have failed to prove its ancestral nature by leading cogent evidence. Issue nos. 2 and 3 regarding execution of Will dated 05.01.1969 and the cancellation of the same vide letter dated 09.06.1970 have been jointly decided and it was held that Will dated 05.01.1969 was executed in favour of the defendant, but it was later on cancelled vide letter dated 09.06.1970, as such, defendant is not entitled to the property on the basis of the Will. The Court of first instance vide judgment and decree dated 28.02.1986 decreed the suit of the plaintiffs. Against that, defendant preferred an appeal, which has been dismissed by the learned lower appellate Court vide judgment and decree dated 16.10.1986. Hence, this second appeal.
Respondent No.1 - Shanti Lal has also filed cross objections bearing No. 18-C of 1988 against the judgments and decrees passed by Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 5 both the Courts below.
I have heard the learned counsel for the parties and perused the record.
At the time of admission, no substantial question of law was framed. However, during the pendency of this appeal, the following substantial questions of law were placed on record:-
"a) Where a testator wants to cancel the Will, is he supposed to follow the same procedure as for execution of Will in view of the law laid down by Division Bench of this Hon'ble Court in 1973 Current Law Journal 373?
b) Whether officials performing their duties making entries on the alleged revocation deed can be said to be attesting witnesses in view of the law laid down in AIR 1952 Punjab, 237, AIR 1946 Calcutta 168, AIR 1956 H.P. 58 and AIR 1950 Cal. 401?
c) Whether the learned Courts below have misconstrued the alleged revocation deed PW2/A and therefore, a substantial question of law is involved?
d) Whether the nomination in the post office account could be cancelled by writing a letter or through prescribed form as per Post and Telegraph Manual?
e) Whether Mr. K.P. Sehgal, who was Deputy Post Master of the Post Office, Parliament Street under whose jurisdiction, Kalkaji Post Office fell played a fraud in procuring Ex.
PW2/A, the alleged revocation deed of the registered Will dated 5.1.1969 earlier executed in favour of the appellant?
f) Whether the judgments of the learned courts below are against material on record, based on conjectures and being perverse raise a substantial question of law, in view of the law Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 6 laid down AIR 2001 SC 1272?
I have heard learned counsel for the parties and perused the record.
Learned counsel for the appellant vehemently contended that since Will dated 05.01.1969 has been held to be valid, the findings have been wrongly recorded by the Court regarding cancellation of Will on the basis of document dated 09.06.1970. However it has been submitted that findings with regard to nature of property being non ancestral have been rightly recorded.
On the other hand, learned counsel for the respondents vehemently opposed the contentions raised by the learned counsel for the appellant and contended that as per law once the property has been allotted in view of migration from Pakistan, the presumption should be raised with regard to its ancestral nature. Learned counsel for the respondents further submitted that the document dated 09.06.1970 has rightly been considered by the Courts below which is in the own hand-writing of the executant of the Will i.e. Panju Ram whereby he has cancelled the Will. Otherwise also, the Will had not seen the light of the day for so many years. It has not been explained in the Will as to why other legal heirs have been left out. The document vide which the cancellation was done has been accepted by the Courts below, there is no mis-reading and non-reading of the documentary evidence.
I have considered the rival contentions raised by the learned counsel for the parties and perused the record.
Kumar Virender2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 7 So far as issue that presumption of ancestral nature is attached to the property allotted to the parties in India on migration from Pakistan is concerned, that was considered by this Court in the case of Bisheshar Nath and another vs. Shanti Devi (dead) through Lrs, 2004(4) R.C.R. (Civil) 394, wherein it has been held that where property is allotted in India on migration from Pakistan in lieu of property left in Pakistan, no presumption can be drawn that the property was joint Hindu family property or ancestral coparcenary property unless it is proved that it was allotted in lieu of joint Hindu property left in Pakistan. Since no evidence has been led to prove that property left in Pakistan was ancestral, concurrent findings of fact have been recorded that the property in dispute is not ancestral coparcenary property of the deceased Panju Ram. This is a pure finding of fact and cannot be challenged in the second appeal by way of cross-objections and is not required to be disturbed.
So far as the validity of the Will is concerned, both the Courts below have accepted the execution of the Will, however, vide document dated 09.06.1970 which is written in the hands of the deceased Panju Ram the Will stood cancelled. To reach this conclusion the lower appellate Court has recorded that Panju Ram earlier executed Will dated 03.09.1951 registered on 04.09.1951. He later on revoked this Will and executed another Will dated 07.02.1958. That Will also was revoked on 24.08.1964. It clearly indicates that executant was in the habit of executing Wills and thereafter revoking the same. In view of the previous conduct and nature of the executant, Will dated 05.01.1969 was also revoked vide his own Kumar Virender 2014.03.11 12:11 I attest to the accuracy and integrity of this document RSA 238 of 1987 & Cross Objection No.18-C of 1988 8 writing dated 09.06.1970.
In view of finding of fact with regard to the letter dated 09.06.1970 vide which the Will has been cancelled, I do not find any illegality or perversity in the impugned judgments and decrees discarding the Will.
The findings of fact recorded by the Court of first instance which have been affirmed by the learned lower appellate Court do not call for interference by this Court. No question of law, much-less substantial question of law, as suggested by the learned counsel for the appellant arises in this second appeal.
In view of above, instant regular second appeal and the cross- objections filed by respondent no.1 are dismissed.
No order as to costs.
February 06, 2014 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2014.03.11 12:11
I attest to the accuracy and
integrity of this document