RSA No.4358 of 2009(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4358 of 2009(O & M) Date of Decision:20.09.2010 Smt.Shakuntla Devi ....appellant Versus Kuldeep Singh & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.P.R.Yadav,Advocate for the appellant **** RAKESH KUMAR GARG J. This is defendant's second appeal challenging the judgement and decrees of the courts below whereby suit of the plaintiff- respondents for declaration, was decreed. As per the averments made in the suit, one Phool Singh was owner in possession of the suit land to the extent of 1/9th share as mentioned in para No.1 of the plaint. On 11.08.1997, Phool Singh executed a registered Will in favour of plaintiff-respondents regarding the suit property. The plaintiffs were owners in possession of 2/3rd share out of 1/9th share. Phool Singh was competent to alienate his share. The defendant was entitled to 1/81st share, only. Mutation was sanctioned in favour of plaintiffs on the basis of the Will. The mutation, on the basis of the Will, was set aside vide order dated 29.03.2000 and 10.01.2002 passed by Collector Rewari and Commissioner Gurgaon, respectively. Thus, the present suit for declaration that plaintiffs were owners in possession of the suit property by virtue of the registered Will dated RSA No.4358 of 2009(O & M) 2 11.08.1997 and the mutation No.274 was binding on defendant and the orders dated 29.03.2000 and 10.01.2002 setting aside the mutation were illegal, was filed. Consequential relief for possession was also sought. Upon notice, appellant filed written statement raising various preliminary objections. On merits, it was submitted that the Will was illegal and against the principles of law of inheritance. It was submitted that Phool Singh was not competent to Will away the property in the presence of natural heirs. Phool Singh was Ahir by caste and agriculturist by profession and was governed by customary law in the matter of succession of agricultural land. It was also stated that he was not physically and mentally fit to execute the Will and the same was not binding upon his heirs. The suit property was ancestral. No notional partition took place. The order of sanctioning mutation was illegal and the same was rightly set aside. Dismissal of the suit was prayed for. On the pleadings of the parties, the following issues were framed: 1. Whether the deceased Phool Singh executed a registered will on dated 11.8.1997 bearing vasika No. 159? OPP 2. Whether the plaintiffs have become owner in the possession of the suit property as detailed in para No. 1 of the plaint? OPP 3. Whether the order of Collector, Rewari dated 29.3.2000 and order of the Commissioner, Gurgaon dated 10.1.2002 are illegal and liable to be set aside? OPP 4. Whether the plaintiffs are entitled to alternative relief as prayed for? OPP 5. Whether the plaintiffs have no locus standi to file the present suit? OPD 6. Whether the suit is bad for non-joinder of necessary parties? OPD 7. Whether the suit of the plaintiff is not maintainable in the present form? OPD 8. Relief. RSA No.4358 of 2009(O & M) 3 After hearing the arguments and perusing the evidence on record, the trial Court decided issues No. 1 to 3 in favour of the plaintiffs and issues No. 5 to 7 against the defendants. Resultantly, the suit was decreed with no orders as to costs. Aggrieved from the aforesaid judgement and decree of the trial Courts, defendant filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgement and decree. While dismissing the aforesaid appeal, the Lower Appellate Court observed as under: “From examination of record in light of aforesaid rival contentions it is crystal clear that PW1 Suresh Chand Aggarwal, deed writer stated that he had drafted Will dated 11.8.1997 of Phool Singh. The Will was read over to Phool Singh in presence of witnesses. Accepting the Will to be correct he signed and thumb mark the Will in presence of witnesses. The witnesses also signed the Will. He proved certified copy of Will Ex.PW1/A. PW2 Shri Niwas Sharma, PW3 Mangtu Ram, Numbardar and PW4 Mahender Singh stated that they had signed the Will of Phool Singh as attesting witnesses. PW5 Madan Lal son of Phool Singh father of Kuldeep Singh minor plaintiff reiterated pleadings of plaint. Photocopy of the mutation No. 274 dated 18.9.1997 Ex. P1, copies of Jamabandies for the year 1999-2000 Ex.P2 to P4, certified copy of order dated 10.01.2002 of the Commissioner, Gurgaon Ex.PX and certified copy of order dated 29.3.2000 of the Collector, Rewari, Ex.PY were tendered. DW1 Smt. Shakumtla Devi defendant in affidavit Ex.DW1/A pleaded pleadings of written statement. Perusal of aforesaid evidence shows that Shri Phool Singh had RSA No.4358 of 2009(O & M) 4 executed a registered Will dated 11.8.1997 Ex. PW1/A in favour of the plaintiffs. In Will he stated that he was happy with the services of plaintiffs. Shakuntla his daughter was married living with her family sufficient amount was spent on her dowry in marriage. Phool Singh had died on 5.9.1997. As per Ram Pyari Vs. Bhagwant's case (Supra) happy marriage or financial well settlement could not be made basis for excluding a daughter. According to Daljit Singh Vs. Sukhwinder Singh's case (supra) exclusion of daughter in itself is not a suspicious circumstance. The ratio of other judgments relied by learned counsel for respondents are not at issue. As such their critical analysis is not called for. Shri Phool Singh owner in possession of suit property being Karta of family could have executed will regarding his share. In case Phool Singh had died intestate without executing the will his LRs including Shakuntla Devi, Madan Lal and LRs of Rakesh would have been entitled to shares in the property. The execution of registered will dated 11.8.1997 Ex.PW1/A has been proved. The defendant failed to prove any suspicious circumstance regarding execution of will. Therefore, arguments of learned counsel for appellant are devoid of merit. It is well settled principle of law that Civil Courts are competent to decide the validity of will and not the revenue Courts. Therefore,the findings of learned trial Court on issues No. 1 to 7 are sustainable. Accordingly, point of determination is decided against appellant.” Still not satisfied, the defendant has preferred the instant appeal submitting that the following substantial questions of law arise in this appeal: RSA No.4358 of 2009(O & M) 5 a) Whether Phool Singh was competent to execute the will in respect of the whole co-parcenary property especially when the other co-parcener was there? b) Whether the will in question has been proved to be conscious act of Phool Singh? c) Whether as per the prevailing custom amongst the Ahirs as a community Phool Singh was not competent to bequeath the property in dispute? d) Whether the suit was bad for non joinder of necessary parties and was liable to be dismissed? e) Whether the Judgements and Decrees passed by the Ld. Courts below are illegal, non speaking and are liable to be set aside? I have heard learned counsel for the appellant and perused the impugned judgement and decrees of the courts below. On the basis of the evidence on record, both the courts below have recorded a concurrent finding of fact that the execution of Will in question stands proved in favour of the plaintiff-respondents and the appellant failed to prove any suspicious circumstance regarding execution of the Will. The argument of the appellant that property in dispute was ancestral at the hands of Phool Singh and therefore he was not competent to Will away the property in dispute, is without any merit. It is well settled that a Karta can Will away his share in the ancestral property. In the present case, the Joint Hindu Family consisted of plaintiffs and Phool Singh, only. Thus, undisputedly, at the time of alienation of the suit property by way of Will, the appellant had no right to claim any share in the suit property as she was not a member of the Joint Hindu Family coparcenary property and, thus, the argument raised by appellant that the suit land was ancestral and the same could have not been Willed away by Phool Singh is not available to her. Thus, I find no merit in this appeal. RSA No.4358 of 2009(O & M) 6 No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 20.09.2010 neenu