R.S.A. No. 1468 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1468 of 2010 (O&M) Date of decision : 3.2.2011 Kewal Singh ......Appellant Versus Sarwan Singh and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Manish Prabhakar, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for declaration that he was owner in possession of the suit land to the extent of half share. The case of the plaintiff, in brief, was that Geja Singh was owner of the property in dispute. During his lifetime, Geja Singh executed a Will in favour of his sons Kewal Singh and Sarwan Singh on 16.4.1985. Thus, the plaintiff had half share in the suit property. On 5.8.1971, Geja Singh executed a mortgage deed qua 13 kanals 19 marlas of land in favour of Jagir Singh for a consideration of ` 9,000/-. Jagir Singh sold the mortgagee rights to the plaintiff on 20.7.1987. Geja Singh took loan of ` 6,000/- from Darshan Singh vide pronote dated 17.4.1985. Plaintiff had paid the said amount to Darshan Singh. Mutation No.1366 had been wrongly R.S.A. No. 1468 of 2010 (O&M) 2 sanctioned in favour of defendants No.1 and 2 qua inheritance of Geja Singh. Sale deed executed by Geja Singh in favour of defendants No.6 to 12 was null and void. Hence, the suit was filed by the plaintiff. Defendants No.1 and 2, in their written statement, averred that Geja Singh had sold land to Arjan Singh and Balwinder Singh. Arjan Singh had further sold some part of his house to Teja Singh. Geja Singh had sold land to his wife Jagir Kaur and had challenged the said sale deed. Suit filed by Geja Singh was decreed on 29.4.1993. Geja Singh executed a Will in favour of Sarwan Singh and Satwinder Kaur on 8.6.1989. Mutation was sanctioned in favour of Sarwan Singh and Satwinder Kaur on the basis of Will. Geja Singh sold 16 kanals land to Satwinder Kaur vide sale deed dated 18.6.1987. Defendant No.2 was a bona fide purchaser. Will dated 16.4.1985 was a forged and fabricated document. Defendants No.3 to 12 were proceeded ex parte as they had failed to appear despite service. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Geja Singh executed a registered Will dated 16.4.1985 in favour of his sons namely Kewal Singh and Sarwan Singh is sound disposing mind ? OPP. 2. Whether the plaintiff is entitled to declaration as prayed for ? OPP. 3. Whether the plaintiff is entitled to alternative relief of joint possession of suit land ? OPP. 4. Whether the plaintiff is entitled to permanent injunction as prayed for ? OPP. R.S.A. No. 1468 of 2010 (O&M) 3 5. Whether the plaintiff has got 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 is not properly valued for the purpose of Court fees and jurisdiction ? OPD. 8. Whether Geja Singh sold land measuring 16 Kanals during his life time in favour of Sukhwinder Kaur, defendant No.2 vide sale deed dated 8.6.1987 for Rs.20,000/- ? OPD. 9. Whether the suit is barred by the principle o resjudicata ? OPD. 10. If issue no.8 is proved, whether the Sale deed dated 8.6.1987 is illegal, null and void, without consideration ? OPP. 11. Relief.” Vide judgment and decree dated 18.5.2007, trial Court decreed the suit of the plaintiff and held that the plaintiff was owner of land measuring 19 kanals 12 ½ marlas out of total land measuring 39 kanals 5 marlas situated in village Kandiala. Plaintiff was also declared owner in possession to the extent of half share in the house situated at Village Kandiala. Mutation No. 1366 was declared null and void. Aggrieved by the said judgment and decree, defendants No.1,2 and 11 preferred an appeal. Vide judgment and decree dated 15.12.2008, the said appeal was allowed and the plaintiff was held joint owner in possession to the extent of 1/5th share in the suit land as a natural heir of Geja Singh in the land bearing khasra No. 11/23 (7-7), 24/1 (0-18), 20//3 (8-0), 4/1(1-0), 25//18/2(2-0), R.S.A. No. 1468 of 2010 (O&M) 4 19/1 (4-0) and house in dispute. It was held that remaining 4/5th share was owned by other legal heirs, namely, Sarwan Singh, Gurdip Kaur, Bhiro and Balwindero in equal share. Kewal Singh was mortgagee of land bearing khasra No. 25//18/2 and 19/1. The suit of the plaintiff qua land represented by khasra No.20//7(8-0),8/3 (0-9), 8/2 (1-16) and 8/1 (5-15) was dismissed. Hence, the present appeal by the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Plaintiff in order to substantiate his case had placed reliance on Will dated 16.4.1985. Plaintiff had, however, failed to prove the said Will. Will is a sacred document and speaks of the mind of the deceased-executant after his death. In order to establish the due execution of the Will, the propounder of the Will is required to examine at least one of the attesting witness to the Will. In the present case, the plaintiff could not examine the attesting witnesses to the Will as they had allegedly died. However, the plaintiff was required to establish that the signatures on the Will were of the attesting witnesses. Plaintiff, however, had failed to discharge the said burden. Learned counsel for the appellant has submitted that defendant No.1 had admitted in his cross-examination qua the execution of Will dated 16.4.1985 by Geja Singh. However, the said admission by defendant No.1 is not sufficient to hold that the Will dated 16.4.1985 had been duly proved. The admission made by defendant No.1 could not bind the other defendants who were disputing the execution of the Will by Geja Singh in favour of R.S.A. No. 1468 of 2010 (O&M) 5 plaintiff and defendant No.1. Moreover, defendant No.1 was also a beneficiary of Will dated 16.4.1985. In these circumstances, the learned Additional District Judge had rightly disbelieved the Will dated 16.4.1985 as the plaintiff had failed to prove its due execution. The sale deed executed by Geja Singh in favour of defendant No.2 dated 18.6.1987 had been rightly believed by the learned Additional District Judge as plaintiff had also admitted execution of the said sale deed in his cross examination. Plaintiff had purchased the mortgagee rights of Jagir Singh vide agreement deed dated 20.7.1987 qua khasra No.25//18/2(2-0),19/1(4-0). The said land was mortgaged by Geja Singh with Jagir Singh vide agreement dated 5.8.1971. In these circumstances, the judgment and decree passed by the learned Additional District Judge call for no interference. No substantial question of law arises in this case. Dismissed. (SABINA) JUDGE February 3, 2011 Anand