RSA No.1293 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1293 of 2010 (O & M) Date of Decision: 07.12.2010. Samitri and another .....Appellants Versus Manjit Kaur and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Vipin Mahajan, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.3875-C of 2010 Allowed as prayed for. Main Appeal. Plaintiffs Samitri and Gurmit Kaur both sisters, having remained unsuccessful in both the Courts below, are in second appeal. Defendants-respondent Nos.3 to 7 were given up in the trial Court. Defendant-respondent No.2-Mohinder Kaur is mother of the appellants. Defendant-respondent No.1-Manjit Kaur is daughter of Gurmit Kaur-plaintiff-appellant No.2. The dispute relates to property of Bahadur Singh father of the appellants and husband of respondent No.2 and maternal grandfather of respondent No.1. Bahadur Singh was owner of 39 kanals 16 marlas land being half share of 79 kanals 12 marlas land in village Abadi Raowal. He was also owner in possession of 24 kanals land in village Kiri Afgana. The plaintiffs/appellants alleged that Bahadur Singh executed Will dated 11.08.1998 in their favour and accordingly they are owners of the aforesaid suit land. In the suit, they also challenged sale deeds dated 03.01.1997 and 17.01.1997 executed RSA No.1293 of 2010 (O & M) -2- by Bahadur Singh himself in favour of respondent No.1 regarding 29 kanals 6 marlas land out of 39 kanals 16 marlas land of village Abadi Raowal and also regarding 24 kanals land of village Kiri Afgana alleging the same to be without consideration. Defendant Nos.1 and 2 contested the suit and denied the plaint allegations. They stated that sale deeds dated 03.01.1997 and 17.01.1997 executed by Bahadur Singh in favour of defendant- respondent No.1 are legal and valid and, therefore, Bahadur Singh no longer remained owner of the land sold by him through the said sale deeds and he was left with only 10 kanals 10 marlas land in village Abadi Raowal. Defendants also pleaded that Bahadur Singh executed registered Will dated 14.01.1997 in favour of defendant No.2 and consequently she has become owner of 10 kanals 10 marlas land whereas defendant No.1 is owner in possession of the remaining suit land in view of sale deeds. Various other pleas were also raised. Learned Civil Judge (Junior Division), Gurdaspur vide judgment and decree dated 08.11.2002 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 07.09.2009. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. As regards Will dated 14.01.1997 Ex.D-3 executed by Bahadur Singh in favour of defendant No.2, the same stands admitted even by palintiff No.1 while appearing in the witness box. The same has also been admitted by other witnesses of the plaintiff, who were also attesting witnesses of the said Will. Execution of the said Will RSA No.1293 of 2010 (O & M) -3- dated 14.01.1997 is also mentioned in Will Ex.P-1 set up by plaintiffs. Will Ex.D-3 dated 14.01.1997 is also registered one adding to its authenticity. Consequently, the said Will not only stands proved, but also stands admitted by the appellants. As regards sale deeds in favour of defendant No.1, the appellants have miserably failed to prove that the said sale deeds were without consideration. Payment of consideration was recited in the said sale deeds. The sale deeds are registered ones. Consequently, the sale deeds cannot be held to be illegal or invalid merely on bald assertion of plaintiff No.1 in the witness box. As regards Will dated 11.08.1998 set up by the plaintiffs, the same has been rightly discarded by the Courts below. It has been admitted by Sohan Singh PW-2 attesting witness of the said Will that Bahadur Singh remained admitted in hospital for 3-4 months before his death. Similar admission was also made by Ajaib Singh PW-3. Even plaintiff No.1-Samitri Kaur as PW-4 admitted that Bahadur Singh remained admitted in hospital. Will in favour of plaintiffs is dated 11.08.1998 and Bahadur Singh died on 01.11.1998 i.e. 2 months 20 days after the Will. However, Bahadur Singh remained admitted in hospital for 3-4 months before his death. It would lead to the inference that Bahadur Singh was admitted in hospital at the time of the execution of the alleged Will. However, no doctor from the hospital has been examined to prove that he was of sound disposing mind at that time. Will has not been attested by any doctor from the hospital. It has also come in plaintiffs' own evidence that Bahadur Singh was also having breathing problem at that time. Thus it is not shown that Bahadur Singh was of sound disposing mind at the time of alleged Will dated 11.08.1998. RSA No.1293 of 2010 (O & M) -4- Bahadur Singh had earlier executed Will dated 14.1.1997 in favour of his wife. The said Will is registered one. However, Will dated 11.08.1998 set up by the plaintiffs is unregistered one. This is also a suspicious circumstance about the said Will. It has also come in plaintiffs' own evidence that they were residing in their matrimonial homes since after their marriage and they were not rendering services to Bahadur Singh. On the contrary, there was no reason for executing Will Ex.P-1 in favour of the plaintiff and for disinheriting testator's wife defendant No.2 in whose favour registered Will dated 14.01.1997 had already been executed. No reason has been assigned for cancellation of the registered Will dated 14.01.1997. Consequently, for all these reasons, concurrent finding by both the Courts below discarding the Will set up by the plaintiffs is fully justified and is supported by cogent reasons. The said finding does not warrant interference in second appeal. Same is the position regarding sale deeds in favour of defendant No.1 executed by Bahadur Singh whereas Will dated 14.01.1997 in favour of defendant No.2 stands admitted. Consequently, no question of law, much less substantial question of law, arises for determination in the instant second appeal. Judgments of the Courts below do not suffer from illegality or perversity so as to warrant interference in second appeal. For the reasons aforesaid, I find no merit in the instant second appeal which is accordingly dismissed in limine. 07.12.2010. ( L. N. MITTAL ) A. Kaundal JUDGE