RSA No.2864 of 2011 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 2864 of 2011 (O&M) Date of Decision: 01 - 8 - 2011 Rajbir Kaur ....Appellant v. Joginder Singh and others ....Respondents CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Rajeev Anand, Advocate for the appellant. *** KANWALJIT SINGH AHLUWALIA, J. In CM No.7858-C of 2011 For the reasons stated in the application, delay of 48 days in refiling the appeal is condoned. C.M. stands disposed of. RSA No.2864 of 2011 The present Regular Second Appeal has been instituted by Rajbir Kaur- plaintiff to the suit as she has failed in both the Courts below. Plaintiff-Rajbir Kaur is daughter of Jaswant Singh. The dispute is regarding the estate of Jaswant Singh. Jaswant Singh was the owner in possession of the property situated at Village Deogarh, Tehsil Samana, as per jamabandi for the year 1984-85. The description and detail RSA No.2864 of 2011 (O&M) [2] of the property has been given in the plaint. Jaswant Singh was survived by two daughters and four sons. Therefore, the plaintiff being daughter of Jaswant Singh claimed herself to be the joint owner and in joint possession to the extent of 1/6th share of the suit property being natural heir and successor. A grievance was made that successors-in-interest i.e. sons of Jaswant Singh had got entered a mutation in their favour in the revenue record on the basis of a Will dated 22.10.1986. The Will dated 22.10.1986 and mutation entered in the record of right on 6.8.1988 are assailed being illegal, null and void ab initio. Thus, a suit for declaration that the plaintiff was owner in possession of the suit property to the extent of 1/6th share and the defendants be restrained from interfering in her possession, was instituted. It was further pleaded in the suit that Shavinder Singh, brother of the plaintiff died in the year 1994 and his children i.e. defendants No.5,7,8 and widow-defendant No.6 were recorded in the revenue record as owner of the property held by Shavinder Singh. Later successors of Shavinder Singh i.e. defendants No.5 to 8 suffered a decree vide Suit No.626 dated 3.8.1993 in favour of defendant Rajinder Singh. It was pleaded that there was a collusion between Rajinder Singh and successors of Shavinder Singh. Therefore, the mutation entered in the revenue record on the basis of decree dated 20.8.1993 was also challenged along with the decree. It was further pleaded that on 23.11.1994, a family partition was arrived at, on the basis of which instrument of partition was prepared and the same was entered into the revenue record. The alleged family settlement, mutual partition and the revenue record where it was so noticed have also been challenged and it was prayed that they be set aside. In RSA No.2864 of 2011 (O&M) [3] nutshell, plaintiff had condemned the Will dated 22.10.1986 being false and frivolous document, as the same was accompanied by many suspicious circumstances. Therefore, it was prayed that the Will dated 22.10.1986 be ignored and held bad being invalid. It was further asserted that the alleged family partition dated 23.11.1994 and the revenue entries made on the basis thereof were required to be set aside, as no opportunity of hearing was afforded to the plaintiff. Furthermore, decree suffered by successors of Shavinder Singh on 20.8.1993 in favour of Rajinder Singh being result of collusion was also liable to be set aside along with the revenue record prepared on the basis of judgment and decree dated 20.8.1993. Lastly, it was prayed that the alleged instrument of partition is not binding upon the plaintiff and she is entitled to get the partition of joint land in which she is owner of 1/6th share being natural heir of Jaswant Singh. It was further prayed that defendants No.9 to 41 have no concern with the suit land and their possession being unlawful and the revenue entries made in their favour be set aside. Upon notice, defendants No.1, 2 and 4 to 8 filed the joint written statement in which they stated that Jaswant Singh had died on 24.7.1988 and not in the year 1987. He had executed a Will in favour of his four sons, namely, Jagninder Singh, Sarabjit Singh and Inderjit Singh defendants No.1, 3, 4 respectively and deceased son Shavinder Singh. Shavinder Singh died in the year 1993 after execution of the Will. Plaintiff Rajbir Kaur and another daughter Jagdarshan Kaur had nothing to do with the estate left behind by Jaswant Singh. It was stated that Jaswant Singh performed the marriage of Jagdarshan Kaur in the year 1968 and of Rajbir RSA No.2864 of 2011 (O&M) [4] Kaur-plaintiff in the year 1979 and after marriage they are well settled in their matrimonial home, therefore, they were excluded from the natural succession. It was further averred that Jaswant Singh was looked after and served by his four sons along with family members and in lieu of the services rendered by them, Jaswant Singh had executed a registered Will in favour of his four sons out of love and affection. The Will was scribed by Azad Hind Goel, Document Writer, Patran and was duly entered in his register at Sr.No.1619 dated 22.10.1986. The Will was attested by Gurdip Singh, Sarpanch of Village Deogarh and Jagwant Singh son of Hardial Singh of Village Deogarh. Defendants No.1, 2 and 4 to 8 also took a definite stand that mutation on the basis of Will was sanctioned in the open gathering in the presence of all sons and daughters of Jaswant Singh. Legal heirs of defendant No.3-Sarabjit Singh also filed the written statement and reiterated the stand taken by defendants No.1, 3 and 4 to 8. Defendants No.42 and 43 filed their separate written statements denying all the contentions of the plaintiff. The remaining defendants had not caused the appearance. In support of the pleadings made in the plaint, Rajbir Kaur- plaintiff herself appeared in the witness box as PW1. Azad Hind Goel, Scribe of the Will appeared as DW1 and stated that original Will dated 22.10.1986 was executed by Jaswant Singh in favour of his four sons and the same was witnessed by Gurdip Singh, Sarpanch and Jagwant Singh son of Hardial Singh. Gurdip Singh, a marginal witness to the Will appeared as DW2. He proved the signatures of Jaswant Singh on the register of Document Writer and endorsement on the Will as Exs.D8 to D10. DW3 Inderjit Kumar, Registration Clerk, produced RSA No.2864 of 2011 (O&M) [5] the summoned record. He produced the register relating to the sale deeds executed. Jagninder Singh appeared as DW4 and proved the original Will as Ex.D7 and also identified his signatures of his father on the register of Deed Writer as Ex.D8 and endorsement on the Will as Exs.D9 and D10. Defendants also examined Navdeep Gupta, Handwriting and Finger Print Expert as DW5 to prove the signatures of Jaswant Singh on the Will. In rebuttal evidence, death certificate of Surjit Kaur wife of Jaswant Singh was tendered into evidence. The learned trial Court held that there is no dispute that the property in dispute belonged to Jaswant Singh, who had expired on 24.7.1988 as per death certificate Ex.D25 and his wife had predeceased him on 4.8.1986. Death certificate of Surjit Kaur has been proved on record as Ex.D26. The Court further held that the revenue entries were made on the basis of Will Ex.D7, subsequent to the death of Jaswant Singh. The Court relied upon the testimony of DW1 Azad Hind Goel, DW2 Gurdip Singh attesting witness and DW5 Navdeep Gupta, Handwriting and Finger Print Expert to hold that deceased Jaswant Singh had executed the Will when he was in a sound state of mind. The Court upheld the execution and validity of the Will holding that it was not accompanied by any suspicious circumstance. Once the Court had upheld the Will, therefore, all the issues were decided in favour of the defendants and against the plaintiff. Needless to say that core issue was validity of the Will Ex.D7, which has been upheld by the trial Court. The lower Appellate Court concurred with the findings recorded by the trial Court while observing as under:- “21. The careful perusal of the plaint reveals that the will has been challenged only on the ground that it is executed in RSA No.2864 of 2011 (O&M) [6] suspicious circumstances; and that there are certain reasons to set aside the same. The said allegations are made in Para No.6(a) of the plaint. Apart from the said allegations, the will has not been challenged on any other ground. The perusal of pleadings and evidence on record reveals that the appellant/plaintiff could not point out any suspicious circumstance and any reason as to why the genuineness should be doubted. The main stress has been given that the plaintiff is daughter of the deceased. There are no reasons why she has been excluded, so will is not genuine. This is no ground to challenge the will. The will is made in order to bequeath the property to a particular heir. If the executant of the will wants that his property should be divided equally between all the heirs, then there was no question of execution of the will. Once, the will is executed, this means that the executant wants that property should be bequeathed as per his wishes on the basis of said testament, unless, it is proved that the will is surrounded with suspicious circumstances or its execution is proved to be in suspicious circumstances or mental state of the executant is not sound or any other reason is proved from which an inference can be drawn that will is not genuine.” The lower Appellate Court further rejected the contention that the property was ancestral coparcenary property by holding that the plaintiff has failed to prove any document regarding nature of the suit land. Mr.Rajeev Anand, learned counsel appearing for the appellant- plaintiff has stated that there is no reason for Jaswant Singh to exclude the daughters and bequeathing the property exclusively in favour of his four sons by executing the registered Will Ex.D7. It is a common knowledge that in this part of the country, land owners after marriage of their daughters, guard the interest of sons and exclude the daughters from succession by transferring their estate by various means, therefore, RSA No.2864 of 2011 (O&M) [7] exclusion of the daughters whose marriage was performed and were living happily in their matrimonial home cannot be construed as a suspicious circumstance. Furthermore, both the Courts below after appreciating the evidence has placed implicit reliance on the testimony of DW1 Azad Hind Goel, Scribe and DW2 Gurdip Singh, an attesting witness of the Will Ex.D7. In this case, the respondent-defendants have proved the signatures of Jaswant Singh by examining the Handwriting and Finger Print Expert DW5 Navdeep Gupta, whereas except the bald statement of the appellant- plaintiff who appeared as PW1, no other evidence has been produced by her. Thus, the concurrent findings of fact recorded by both the Courts below regarding validity of the Will Ex.D7 cannot be questioned in a Regular Second Appeal, as this Court shall refrain from re-appreciating and reevaluating the evidence. No case is made out to differ with the concurrent findings of fact. On facts of the case, this Court is unable to uphold the contention of the counsel that the exclusion of daughters in the Will Ex.D7 constitutes a substantial question of law. The findings returned by both the Courts below after appreciating the evidence cannot be termed to be perverse. No point of law, much less the substantial one, arises for consideration of this Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. ( KANWALJIT SINGH AHLUWALIA ) August 1st, 2011. JUDGE RC