RSA No.4402 of 2009 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4402 of 2009 Date of decision: July 27, 2011. Surinderpal Kaur ... Appellant(s) v. Gurpreet Kaur ... Respondent(s) CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Shri Surinder Singh Walia, Advocate, for the appellant(s). None for the respondent. Kanwaljit Singh Ahluwalia , J. Having lost in two rounds of litigation, plaintiff to the suit has filed the present regular second appeal. Plaintiff had filed a suit for joint possession in respect of the land measuring 35 kanals 16 marlas out of the total land measuring 71 kanals 12 marlas which was the share of the deceased Gajjan Singh in the total land measuring 126 kanals, the description and detail of the suit land was given in the head note of the plaint. Plaintiff claimed that she along with respondent-defendant, was entitled to equal share in the estate of Gajjan Singh on the basis of Will made by him on 25.11.1995. Gajjan Singh, Sajjan Singh and Chanan Singh were three brothers. Gajjan Singh died unmarried and issueless. Plaintiff is the daughter of Sajjan Singh whereas Gurpreet Kaur, respondent-defendant, is the daughter of Chanan Singh. Thus, both, plaintiff and defendant are RSA No.4402 of 2009 -: 2 :- nieces of Gajjan Singh. Plaintiff had made claim on the basis of Will dated 25.11.1995 and had also prayed for setting aside the civil court decree dated 14.11.1995 whereby the entire property held by Gajjan Singh was transferred in favour of Gurpreet Kaur, defendant to the suit. Gajjan Singh had died on 31.12.1996 at the age of 80 years. In the suit, plaintiff had averred that one month before his death, Gajjan Singh had handed over a Will dated 25.11.1995 whereas respondent-defendant had been proclaiming absolute ownership of the land on the basis of civil court decree dated 14.11.1995 on the basis of family settlement. Upon notice of the suit, defendant had caused appearance and filed written statement in which many preliminary objections were raised, one of which included maintainability of the suit. Furthermore, in the written statement, relationship between the parties was admitted, however, it was stated that Gajjan Singh had adopted respondent-defendant as daughter and thereafter by way of family settlement had transferred the suit land to the respondent-defendant by civil court decree dated 14.11.1995. After conclusion of the pleadings, the trial court had formulated many issues, however, it will be pertinent to take notice of issues No.1 to 3 and 8, which read thus:- 1. Whether deceased Gajjan Singh executed a will dated 25.11.1995 in favour of the plaintiff in his sound disposing mind? OPP 2. Whether decree dated 14.11.1995 passed by the court of Sh. Dilbagh Singh in case titled as Gurpreet Singh v. Gajjan Singh dated 14.11.995 is illegal, null and void? OPP 3. Whether the plaintiff is entitled for joint possession of the RSA No.4402 of 2009 -: 3 :- suit land as prayed for? OPP 4 to 7. xxx xxx xxx xxx 8. Whether defendant is adopted daughter of deceased Gajjan Singh? OPD The above stated issues No.1 to 3 and 8 being inter-connected were taken up and decided together by the trial court. Appellant-plaintiff examined PW1 Naib Singh who stated that Gajjan Singh was not having any child and used to tell him regarding execution of the Will in favour of his two nieces. PW2 Sukhdarshan Singh deposed regarding execution of the Will dated 25.11.1995 and had identified his signatures on Ex.P1. PW3 Tarsem Lal, deed writer, stated that Will Ex.P1 was scribed at the instance of Gajjan Singh in favour of Surinderpal Kaur and Gurpreet Kaur. PW4 Jagjit Singh, Record Clerk from the office of Sub-Registrar brought the record of adoption deed regarding adoption of Gurpreet Kaur and proved the endorsement Ex.PW4/A. PW5 Prem Singh Chowkidar stated that Chanan Singh, Sajjan Singh and Gajjan Singh were real brothers. Chanan Singh and Sajjan Singh were having daughters, namely, Surinderpal Kaur and Gurpreet Kaur respectively. However, he denied Gajjan Singh having adopted Gurpreet Kaur as daughter. PW6 Jeon Singh corroborated the testimony of PW5 Prem Singh and stated that no adoption ceremony was held. PW7 Jagir Singh also stated that he never heard adoption of Gurpreet Kaur by Gajjan Singh. To the same effect is the statement of PW8 Baldev Singh, Lambardar of the village. Plaintiff Surinderpal Kaur herself appeared as PW9. Defendant examined DW1 Amar Singh who proved her adoption by Gajjan Singh. He has stated that adoption ceremony was held RSA No.4402 of 2009 -: 4 :- on 8.11.1992. All the religious ceremonies were performed and sweets were distributed. Five more witnesses were examined by the defendant to prove her adoption. The trial court held that the plaintiff had assailed the decree and judgment dated 14.11.1995 on the ground that Gajjan Singh had not appeared before the court and was impersonated and the decree dated 14.11.1995 required registration. The court held that plaintiff had miserably failed to prove fraud and misrepresentation. The court held that plaintiff had not examined any expert to prove any forgery. Except the bald oral assertion made by the plaintiff, no evidence was led to support the contention that Gajjan Singh had not appeared before the court and that judgment and decree dated 14.11.1995 was a result of fraud and misrepresentation. The court further held that since the decree of the civil court is based on family settlement, no registration was required. The trial court further held the adoption deed Ex.PW4/A to be a valid document. The trial court further ruled out Will Ex.P1 out of consideration by observing as under:- “9. ... Now coming to the contention of learned counsel for the plaintiff that the plaintiff has established the due execution of Will Ex.P1 under the provision of law is also not sustainable as the plaintiff has examined PW2 Sukhdarshan Singh who is the attesting witness to the Will has not deposed that both the attesting witnesses i.e. he and Harchand Singh appended their signatures in the presence of each other and also testator Gajjan Singh signed the will in their presence. He has not deposed about the entry on the register of Deed Writer and has not deposed about his signatures on the register of Deed Writer. The statement of PW3 Deed Writer cannot take the place of marginal witness. PW1 has categorically stated that Gajjan Singh only mentioned in the Will regarding agriculture RSA No.4402 of 2009 -: 5 :- land owned by him but the perusal of Will shows that there is a recital regarding house, plot, movable property, bank account and cash in post office. Therefore, the statement of PW2 does not prove the due execution of the Will under the provisions of law and the same is an unregistered document.” The lower appellate court concurred with the findings returned by the trial court. The court held that as per the adoption deed, adoption was effected on 8.11.1992 and the same was reduced into writing on 2.12.1992. At that time, Gurpreet Kaur was less than 15 years of age. The court held that since the adoption of Gurpreet Kaur as daughter of Gajjan Singh is proved, she had pre-existing right and, therefore, the consent decree requires no registration. I have heard Shri Surinder Singh Walia, Advocate appearing for the appellant-plaintiff. The courts below have rightly held that execution of the Will Ex.P1 is not proved as the evidence of attesting witness Sukhdarshan Singh PW2 has failed to prove the same. Furthermore, the Will was unregistered whereas the adoption deed, described as Ex.PW4/A by the trial court and Ex.PW3/A by the lower appellate court, was registered and has been duly proved. Furthermore, Gajjan Singh has suffered a decree in favour of Gurpreet Kaur on 14.11.1995. The plea raised by the appellant-plaintiff that the judgment and decree dated 14.11.1995 was obtained as a result of fraud and misrepresentation and Gajjan Singh was impersonated, has not been proved. Neither the Counsel who caused appearance for Gajjan Singh has been examined nor any expert, who could have deposed regarding any forgery. After appreciating the evidence, the courts have returned a RSA No.4402 of 2009 -: 6 :- concurrent finding of fact which cannot be disturbed in the regular second appeal unless it is shown that the evidence was misread or inference drawn by both the courts below was perverse. Shri Walia, appearing for the appellant, has stated that it is not necessary that the Will should be registered. There is no quarrel with this proposition but execution of the will has to be proved. Once the courts below have discarded testimony of PW2 Sukhdarshan Singh, the mere examination of the scribe PW3 Tarsem Lal is not sufficient to prove the execution of the document/Will. Furthermore, the courts have relied upon the testimony of witnesses to hold that a religious ceremony regarding adoption was held and thereafter adoption deed was executed and got registered. Lastly, on the basis of the adoption, by way of decree dated 14.11.1995, Gurpreet Kaur was held to be the owner of the suit property. During the course of arguments, Counsel for the appellant-plaintiff has failed to convince me as to why the Court should set aside the judgment and decree dated 14.11.1995 suffered by Gajjan Singh in favour of Gurpreet Kaur. The lower appellate court has rightly held that once the adoption is held valid, Gurpreet Kaur has pre-existing right and, thus, on the basis of family settlement, sufferance of consent decree suffers from no infirmity. Thus, in the totality of the circumstances, this Court is not inclined to cause any interference, especially when no question of law, much less a substantial one, has been raised before this Court. Hence, the present appeal is dismissed. [Kanwaljit Singh Ahluwalia] July 27, 2011. Judge kadyan