Punjab-Haryana High Court
Balwinder Singh vs Narinder Kaur And Others on 10 July, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.295 of 2013 (O&M)
Date of decision: 10th July, 2013
Balwinder Singh
Appellant
Versus
Narinder Kaur and others
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. T.N. Gupta, Advocate for the appellant.
RAKESH KUMAR GARG, J.
The brief facts emerging out of the impugned judgments and decrees are that one Sant Singh @ Santa Singh son of Munshi Ram was the owner in possession of the suit land. He died on 27.11.1990. The plaintiffs and defendant No.4 (i.e. respondents No.1 to 3 and 6) are the daughters of said Santa Singh whereas defendants No.2, 3, 5, 6 and 7 (i.e. appellant, respondent No.5 and respondents No.7 to 9 respectively in the instant appeal) are the sons, widow and daughters of Gurnam Singh, predeceased son of Santa Singh.
As per the plaintiffs, the above persons are the legal heirs of Santa Singh and thus, the plaintiffs and defendant No.4 are entitled to 2/3rd share; whereas defendant No.3 Sucha Singh is entitled to 1/6th share and defendants No.2, 5, 6 and 7 are entitled to 1/6th share jointly under the law of the land in dispute, which belongs to Santa Singh. Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 2 Defendant No.1 has got absolutely no right, title or interest in the suit land. However, the defendants No.1 and 2 (i.e. now respondents No.4 and the appellant) jointly asserted that Santa Singh had executed a Will dated 25.08.1989 in their favour; whereas the said Will is false, forged and fabricated document and has been prepared after the death of Santa Singh only to grab his land, since he died intestate and he never executed any such Will. They were entitled to their share of the property, as claimed above, and mutation if any sanctioned by the revenue officer at their back was void and a nullity in the eyes of law. Since the defendants did not admit the claim of the plaintiffs the suit has been necessitated.
Upon notice, defendant No.1 (i.e. respondent No.4) filed written statement admitting the claim of the plaintiffs. Defendants No.2 and 5 (i.e. now the appellant and respondent No.7) filed separate written statements raising various preliminary objections. On merits, they controverted all the material averments made in the plaint. However, it was admitted that Santa Singh was owner of the land in dispute which was a Joint Hindu Coparcenary Property. The relationship between the parties was also admitted. It was further stated that defendants No.1 and 2 were to inherit the estate of Santa Singh as he had executed a valid Will dated 25.08.1989 in their favour. It was further asserted that mutation of inheritance was correctly sanctioned in favour of defendants No.1 and 2 as the plaintiffs and defendant No.3 had appeared in those mutation proceedings and made Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 3 statements admitting the correctness and validity of the Will dated 25.08.1989 executed by Santa Singh in favour of defendants No.1 and
2. The plaintiffs were bound by the mutation proceedings and were left with no right, title or interest in the suit land. The plaintiffs have filed the suit in connivance with defendant No.3 and thus, the suit was liable to be dismissed.
Defendants No.3 and 4 also filed separate written statements admitting the claim of the plaintiffs. Defendants No.6 and 7 filed separate written statements denying the averments made in the plaint. The plaintiffs filed replication reiterating the version set up by them in the plaint and controverting the pleas as raised in the written statements.
From the pleadings of the parties, following issues were framed:
"1. Whether the deceased Santa Singh executed a valid Will in favour of defendant No.1 & 2 as alleged? OPD
2. Whether the suit has been got filed by Sucha Singh as alleged? OPD
3. Whether the land in suit was ancestral property of Santa Singh as alleged, if so, its effect? OPD
4. Whether the plaintiffs are estopped by their act and conduct to file the present suit? OPD
5. Whether the plaintiffs are entitled to the declaration & injunction, as prayed for? OPP
6. Whether the plaintiffs are entitled in the alternative to the possession of the land in suit? OPP Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 4 6A. Whether suit has been got filed by way of impersonation by Sucha Singh? OPD 6 & 7
7. Relief."
Parties led evidence in support of their respective pleas. After hearing learned counsel for the parties and appreciating the evidence and documents on record, the Additional Civil Judge (Sr. Divn.), Batala decreed the suit of the plaintiffs vide judgment and decree dated 15.04.2006 holding that the Will set up by defendants No.1 and 2 was not valid.
Feeling aggrieved by the aforesaid judgment and decree passed by the trial Court, Balwinder Singh (i.e. defendant No.2) filed an appeal. The said appeal was also dismissed by the first Appellate Court vide impugned judgment and decree dated 18.10.2012.
Still not satisfied, defendant No.2-appellant Balwinder Singh has approached this Court by filing the instant appeal submitting in the grounds of appeal that the following substantial questions of law arise for consideration of this Court:
"i) Whether the judgments and decrees of the Courts below are perverse on account of their omission to decide Issue No.4 in terms whether the plaintiffs were estopped by their acts and conduct to file the suit?
ii) Whether the plaintiffs had come to the Court with unclean hands firstly because they had denied their own signed statements on oath supporting Santa Singh's Will before the Assistant Collector First Grade, Batala leading to the mutation of his estate on the basis of the Will and secondly by suppressing from the Court the existence Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 5 of a co-sharer namely Bhupinder Kaur and if so, had disentitled themselves to the relief of declaration of joint title?
iii) Whether the plaintiffs' suit for declaration of joint title could be decreed on the back of a co-sharer?
iv) Whether the Courts below have correctly worked out the ratio of the parties shares in the estate of Santa Singh if the Will is not proved?
v) Whether the verdicts of the Courts below are unjust because they rest on the perjured statements of Karnail Singh, Kartar Singh attesting witnesses of the Will and Gurnam Kaur plaintiff.
vi) Whether Balwinder Singh appellant's evidence on oath as DW-9 was lawfully ignored by the Courts below on the ground that he had not offered himself for cross-
examination when the record shows that it was the plaintiffs' counsel who had failed to cross examine him when he was in the witness box?
vii) Whether the replication dated 22.9.1994 filed by the plaintiffs' counsel on 28.9.1994 is an illegal pleading having not been signed and verified by any of the plaintiffs as required by Order 6 Rule 14 CPC and whether this amounts to the admission of the appellant's case as pleaded in the written statement under Order 8 Rule 5 CPC?
viii) Whether the suit is tainted and farcical being the result of a dishonest collusion between Sucha Singh and his sisters to oust Gurnam Singh's widow and son from the bequest of Santa Singh?"
Learned counsel for the appellant has vehemently argued that the Will in question set up by the appellant stands duly proved from the evidence on record. Moreover, the plaintiff-respondents were Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 6 estopped by their conduct from challenging the Will dated 25.08.1989 as admittedly the plaintiffs as well as the other defendants had appeared before the revenue authorities in mutation proceedings and had accepted the correctness of the Will in question, and on their consent, the mutation of inheritance of Santa Singh qua the land in dispute was sanctioned in favour of the appellant and defendant Harvinder Singh on the basis of said Will; and once the plaintiffs have accepted the same now they were estopped from filing the instant suit challenging the execution of the said Will.
It is further case of the appellant that though the trial Court framed the issue 'Whether the plaintiffs are estopped by their acts and conduct to file the present suit', no finding was given resulting into miscarriage of justice. The said issue was left undecided which was a ground of attack before the first Appellate Court but no finding was returned on this issue by the courts below and therefore, the judgments and decrees in question are liable to be set aside and the questions of law as raised, arise for consideration of this Court.
The argument raised on behalf of the appellant is liable to be rejected outrightly. A concurrent finding has been recorded by both the courts below that both the marginal witnesses of the Will in question have turned hostile and have not supported the execution of the Will.
Learned counsel for the appellant was at a loss to challenge the finding of the courts below on the issue of valid execution of the Will.Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 7
A perusal of the judgment of the first Appellate Court would show that in fact the original Will has not seen the light of the day. Even the appellant was permitted to prove the Will by way of secondary evidence subject to proof of existence of the Will and the loss thereof. A finding has been recorded that while appearing in the witness box as DW-9, the appellant has nowhere stated about the loss of the Will nor he proved its existence. The courts below have further found that the Will produced on record was a photocopy and the Will was full of suspicious circumstances as there was a gap between the name of Scribe as well as signatures of Santa Singh. Even addresses of the attesting witnesses, namely, Karnail Singh and Kartar Singh have not been given. In fact, after examination-in-chief, the appellant did not turn up for further examination-in-chief and cross-examination; and thus, in the absence of any evidence, the finding of the courts below, with regard to the valid execution of the Will, cannot be challenged. The courts below have rightly observed that the proceedings before the revenue officer at the time of sanctioning of mutation are of a summary nature as the same are not recorded on oath nor taken in extenso, as in a civil case. Even the said statements are not subjected to cross-
examination. Moreover, mutation does not confer any title.
At this stage, it may further be noticed that there is no estoppal against law. The mutation proceedings cannot debar the plaintiffs from challenging the validity of Will in a competent Court of law.Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh RSA No.295 of 2013 (O&M) 8
Not only this, no arguments were raised by the appellant against the finding on issue No.4 before the lower Appellate Court.
In view of the discussion made above, the argument raised on behalf of the appellant is liable to be rejected.
No other argument has been raised.
Thus, no substantial question of law, much less the one as raised, arises in this appeal for consideration.
Dismissed.
(RAKESH KUMAR GARG) JUDGE July 10, 2013 rps Singh Rattan Pal 2013.07.20 12:22 I attest to the accuracy and integrity of this document High Court, Chandigarh