Punjab-Haryana High Court
(O&M;) Gurpal Kaur And Anr vs Kuldeep Kaur And Anr on 11 September, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Cross Objection No.4-C of 2008 in/and
RSA No.2583 of 2007 (O&M)
Date of Decision:-11.09.2014
Gurpal Kaur and another
.....Appellants
Versus
Kuldeep Kaur and another
.....Respondents
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
Present:- Mr. Rohit Sharma, Advocate for
Mr. R.S. Chauhan, Advocate
for the appellants.
Mr. Arun Jain, Sr. Advocate with
Mr. Akshay Jain, Advocate
for the respondents.
****
SATISH KUMAR MITTAL, J.(Oral)
Gurpal Kaur and Labh Kaur, both daughters of Dharam Kaur (since deceased) have filed the instant regular second appeal being legal heirs of Dharam Kaur, against the judgement and decree passed by both the Courts below whereby the suit of the respondent Kuldeep Kaur (widow of deceased Gurdev Singh) and adopted daughter of Gurdev Singh namely Jasmeet Kaur, has been partly decreed.
In this appeal, the dispute is of the estate of Gurdev Singh, husband of Kuldeep Kaur and son of Dharam Kaur. Kuldeep Kaur and Jasmeet Kaur filed a suit for declaration claiming the estate of the aforesaid Gurdev Singh, on the plea that in his life time Gurdev Singh executed a Will dated 30.8.1999 in favour of Kuldeep REEMA SAINI Kaur with regard to his estate. It has also been alleged that Jasmeet 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 (O&M) -2- Kaur was also adopted by Gurdev Singh and after the death of Gurdev Singh the mutation of inheritance was originally sanctioned in favour of plaintiff No.1 but subsequently it was wrongly ordered to be sanctioned in favour of plaintiff No.1 and defendant-Dharam Kaur in equal shares. The appeal filed by the plaintiff against the said order was stated to be pending.
The defendant-Dharam Kaur contested the said suit while disputing the Will as well as the adoption of Jasmeet Kaur by Gurdev Singh. The trial Court after considering the evidence led by both the parties has recorded a finding that the plaintiff has failed to prove the alleged Will, while observing as under:
''30. The original Will has not been produced by the plaintiffs. Same was also not produced before the revenue officials. However, before filing of the present suit, the plaintiffs alleged that the Will dated 30.8.99 was lost by PW1 Kulwinder Singh on 22.7.2000 i.e. about one month prior to the institution of the present suit. This all seems to have been a concocted story on the part of the plaintiffs. Gurdev Singh died on 1.9.1999 and the alleged Will dated 30.8.99 i.e. Gurdev Singh died just after one day of the execution of the alleged Will dated 30.8.99. This fact itself is a suspicious circumstance regarding the execution of the Will dated 30.8.1999 in view of the judgement of the Hon'ble Punjab and Haryana High Court titled as 'Inderjit Kaur alias Jagir Kaur vs. Bhag Singh' reported as 2000(2) Civil Court Cases-13. The plaintiffs were not contesting the mutation proceedings on the basis of the Will dated 30.8.99 REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 (O&M) -3- and as such, it is difficult to believe that Kulwinder Singh PW1 was carrying the original Will dated 30.8.99 with him on 22.7.2000. The plaintiff was allowed to prove the Will dated 30.8.99, by way of secondary evidence vide order dated 19.4.2001 subject to proof of its existence and the loss of original. However, the existence of original Will dated 30.8.99 is not proved.
Kulwinder Singh PW1 has not explained as to when the alleged Will dated 30.8.99 was handed over to him and by whom. A perusal of the order passed by the revenue officials shall also reveal that plaintiff No.1 was alleging the Will dated 30.8.1999, but for the reasons best known to the plaintiffs, the Will dated 30.8.1999 was never produced. The Will dated 30.8.1999 is an unregistered document and only a photocopy thereof has been produced on the file. The photocopy of such a document is very easy to procure. The alleged Will dated 30.8.1999 was scribed by Jasmeet Kaur, the alleged adopted daughter of Gurdev Singh, but she also did not step into the mutation proceedings to prove the Will dated 30.8.1999. As per Section 63 of the Indian Succession Act, it is the basic requirement to prove the Will that the witnesses thereof should depose that the executant of the Will signed the same in their presence and they also put signatures or thumb impressions in the presence of the executant. Both the alleged witnesses of the Will dated 30.8.99 have not deposed that the executant Gurdev Singh put his signature on the Will dated 30.8.99 in their presence. The Will dated 30.8.1999 is as such not legally proved and cannot be relied upon.'' REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 (O&M) -4- On the issue whether Jasmeet Kaur was adopted by plaintiff No.1 and Gurdev Singh, a finding has been recorded in favour of the plaintiff and it was held that it has been proved by the plaintiff that Jasmeet Kaur was adopted by plaintiff No.1 and Gurdev Singh, while observing as under:
''31. Now it has to be determined as to whether the plaintiffs have been able to prove that Jasmeet Kaur was adopted by plaintiff No.1 and Gurdev Singh. Surinderpal Singh, natural father of Jasmeet Kaur stepped into the witness box as PW6 and specifically deposed that Jasmeet Kaur was actually given in adoption by him and his wife Kuldip Kaur. Thereafter, Jasmeet Kaur severed her connection with her original family and became daughter of Gurdev Singh for all intents and purposes. This fact is quite sufficient to prove that Jasmeet Kaur was adopted by Gurdev Singh and Kuldip Kaur. It was contented by the learned counsel for the defendant that the documents Ex.P9 to Ex.P16 are not duly proved and as such, the plaintiffs cannot rely upon these documents to prove that Jasmeet Kaur was adopted by Gurdev Singh and Kuldip Kaur. These submissions made by the learned counsel for the defendant are tenable because the documents Ex.P9 to Ex.P16 are only photostat copies of the original thereof have not been produced or proved on the file. No permission for secondary evidence was applied or granted to prove documents Ex.P9 to Ex.P16. All these documents i.e. Ex.P9 to Ex.P16 being not duly proved are not helpful to the plaintiffs to prove the adoption of Jasmeet Kaur by Gurdev REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 -5- Singh and Kuldip Kaur. Even if these documents are ignored, the testimony of Surinderpal Singh is quite sufficient to establish the factum of adoption of Jasmeet Kaur by Gurdev Singh and Kuldip Kaur. The fact that Jasmeet Kaur was adopted by Gurdev Singh and Kuldip Kaur is also duly admitted by the present defendant Dharam Kaur in her statement recorded in Civil Suit No.176 dated 24.7.2000 pending in the Court of Shri A.S. Grewal, PCS, the learned Civil Judge (Sr. Divn.), Ropar. In the said statement recorded on 24.8.2005 and proved on the file as Ex.P17, the present defendant Dharam Kaur clearly admitted that Jasmeet Kaur was adopted immediately after her birth and she might have been educated by Kuldip Kaur and Gurdev Singh. Dharam Kaur in the said statement has also been duly identified by Sh.S.K.Kaushal, Advocate, who is also the counsel of Smt. Dharam Kaur in the present case.
Hence, in my considered opinion, plaintiff No.2 Jasmeet Kaur is proved to be adopted daughter of Gurdev Singh and Kuldip Kaur and being the daughter of Gurdev Singh she is entitled to succeed to his estate alongwith plaintiff No.1 and the defendant.'' After recording the aforesaid finding, the learned trial Court, decreed the suit in the following terms:
''37. For the reasons recorded while deciding the above issues, the suit of the plaintiffs partly succeeds and it is declared that plaintiffs No.1 and 2 are the owners to the extent of 1/3 share out of the suit property left by Gurdev Singh deceased.
The remaining 1/3 share out of the suit REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 (O&M) -6- land is inherited by defendant from Gurdev Singh deceased. The defendant is also hereby restrained from alienating more than her share out of the suit land. In the peculiar circumstances of the case, the parties are left to bear their own costs. Decree sheet be prepared accordingly. Unexhibited documents be returned to the parties and the undisbursed diet money lying deposited in the present case, if any, be also disbursed to the parties concerned in accordance with rules. File be consigned to the Judicial Record Room, Ropar.'' Feeling aggrieved against the aforesaid judgment and decree, both the parties filed appeals and both the appeals were dismissed by the Appellate Court vide judgement and decree dated 28.2.2007, affirming the finding of the trial Court on both the aforessaid issues. This appeal has been filed by the legal heirs of Dharam Kaur (defendant). In this appeal, the plaintiffs have filed the cross-objection.
I have heard learned counsel for the parties.
During the course of hearing, neither the counsel for the appellants nor the counsel for respondents could point out any illegality in the finding of fact recorded by the trial Court on both the aforesaid issues and the said finding of fact has been affirmed by the First Appellate Court. The resultant effect of the judgment and decree of the trial Court is that all the three parties to the lis, i.e. Kuldeep Kaur (widow of Gurdev Singh), Jasmeet Kaur (adopted daughter of Gurdev Singh) and Dharam Kaur (mother of Gurdev REEMA SAINI 2014.09.25 13:00 Singh) are getting equal share in the estate of Gurdev Singh.
I attest to the accuracy and authenticity of this document Chandigarh RSA No.2583 of 2007 (O&M) -7-Therefore, even otherwise, as per inheritance under Section 8 of the Hindu Succession Act, they are entitled for 1/3rd share each in the estate of Gurdev Singh.
In view of the said factual and legal position, both the parties are satisfied with the judgment and decree passed by the Courts below and they are not pressing this appeal and the cross objections filed by plaintiffs.
Dismissed as not pressed.
( SATISH KUMAR MITTAL) JUDGE 11.09.2014 reema REEMA SAINI 2014.09.25 13:00 I attest to the accuracy and authenticity of this document Chandigarh