REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1307 of 2011(O&M) DATE OF DECISION: 18 th MARCH, 2011 Chander .... Appellant Versus Balwinder Kumar .... Respondent CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Manuj Nagrath, Advocate for the appellant. * * * * L.N. MITTAL, J. (ORAL) CM No.3675-C of 2011 Allowed as prayed for. CM No.3676-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 3 days in filing the appeal is condoned. CM No.3677-C of 2011 For reasons mentioned in the application, which is accompanied by affidavit, delay of 1 day in refiling the appeal is condoned. CM No.3678-C of 2011 and Main Appeal: Harish Chander-plaintiff having lost in both the courts below has come up by way of instant second appeal. It is one of the unfortunate numerous cases being filed in the courts relating to property disputes among the siblings or close family members. Will is executed by a person to avoid such litigation and ordinarily REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -2- it is recited in the Will that the Will is being executed to avoid litigation after death of the testator. However, after the death of the testator, invariably Will leads to litigation. In the instant case, plaintiff and defendants No.1 to 3 are sons of Harbans Singh, whereas, defendants No.4 to 7 are daughters of Harbans Singh. The plaintiff alleged that he is exclusive owner of the properties described in various sub-paragraphs of paragraph 1 of the head note of the plaint in view of Panchayati compromise dated 10.09.1994 and that plaintiff is owner of 1/8th share of half share of Harbans Singh on the basis of natural inheritance in properties mentioned in various sub-paragraphs of paragraph 2 of the head note of the plaint. The plaintiff also sought declaration that alleged Will dated 09.11.1993 of Harbans Singh is forged and fabricated and result of fraud. The plaintiff also sought ancillary relief of permanent injunction. The plaintiff's case is that Harbans Singh father of the parties vide compromise dated 10.09.1994 distributed his properties among the parties and accordingly properties detailed in paragraph 1 of the head note of the plaint fell to the exclusive share of plaintiff, who is, therefore, exclusive owner thereof. The plaintiff also alleged that properties described in paragraph 2 of the headnote of the plaint have been inherited by the parties from their father Harbans Singh by natural succession in equal shares i.e. 1/8th share each. The plaintiff pleaded that Will dated 09.11.1993 allegedly executed by Harbans Singh is forged and fabricated document and it was not executed by him. Defendant No.5 was proceeded ex parte. Remaining defendants contested the suit. Compromise dated 10.09.1994 was denied. Plaint averments were broadly controverted. It was alleged that Harbans Singh himself executed Will dated 09.11.1993 voluntarily. Plaintiff is also REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -3- beneficiary under the said Will. Compromise dated 10.09.1994 is forged and fabricated. Defendants are ready to give the property bequeathed to the plaintiff by Harbans Singh. It was also pleaded that Harbans Singh had himself sold 19 Kanals 10 Marlas land including 17 Kanals 15 Marlas land mentioned in paragraph 1(e) of the headnote of the plaint, vide agreement dated 25.09.1996 on receipt of full sale consideration and executed power of attorney for execution of sale deed and the said purchaser has further sold the said land to other persons. Various other pleas were also raised. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 24.10.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 03.11.2010. Feeling aggrieved, plaintiff has preferred the instant second appeal. Along with appeal, appellant has moved CM No.3678-C of 2011 for additional evidence. I have heard learned counsel for the appellant and perused the case file. Plaintiff's case is based on alleged compromise dated 10.09.1994. The plaintiff alleged that he received the suit properties mentioned in paragraph 1 of the headnote of the plaint, vide compromise dated 10.09.1994. However, the said compromise is unregistered one. Consequently, the same could not transfer any title in the immovable suit properties in question to the plaintiff. It is not the plaintiff's case that this compromise is only memorandum of oral settlement arrived at earlier. On the contrary, it is the plaintiff's case that he got the properties in question by way of this compromise. However, unregistered compromise or partition document could REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -4- not have the effect of transferring title in immovable property. It is also not the case of the plaintiffs that suit property was ancestral in the hands of Harbans Singh or was property of Joint Hindu Family or coparcenary which could be settled by oral family settlement, subsequently reduced into writing as memorandum of settlement. Consequently, the plaintiff cannot claim title on the basis of alleged compromise dated 10.09.1994. Learned counsel for the appellant vehemently contended that compromise dated 10.09.1994 although unregistered can be looked into for collateral purpose. The contention does not help the appellant, because case of the appellant regarding his exclusive ownership over properties detailed in paragraph 1 of headnote of the plaint is based on the said document. As noticed hereinbefore, the plaintiff could not derive title or ownership over the said immovable properties on the basis of aforesaid unregistered document. The next question that arises for determination is regarding Will dated 09.11.1993 set up by the defendants. However, the defendants have examined both attesting witnesses of the said Will as witnesses in the court. They have stated about due execution of the said Will. Their statements could not be impeached in their cross-examination. The matter does not rest here. Even the plaintiff specifically admitted in the witness box that the aforesaid Will was executed by his father Harbans Singh. In view of said admission, nothing remains to be determined about the execution and validity of the said will. However, there is also sufficient evidence led by the defendants to prove the execution of the will. In addition to it, plaintiff himself admitted execution of the will by his father, but the plaintiff came out with new plea in the witness box that the Will was cancelled. However, no such plea was taken in the pleadings by the plaintiff. There is also no evidence to depict that the said REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -5- Will was ever cancelled. Learned counsel for the appellant referred to alleged contradictions in the statements of attesting witnesses of the Will. However, the said contradictions are not significant. Moreover, the alleged contradictions pale into insignificance when execution of the Will stands admitted by the plaintiff himself. For the same reason, contention regarding any other suspicious circumstance surrounding the Will cannot be entertained. Even otherwise, the Will has been duly proved by the defendants by leading cogent and credible evidence. Appellant has moved CM No.3678-C of 2011 for additional evidence to prove report of handwriting expert, examined during proceedings for registration of the Will. However, since execution of the Will has been admitted by the plaintiff-appellant himself and has also been proved by defendants by leading cogent evidence, proposed additional evidence to disprove the Will cannot be admitted in second appeal. Even otherwise there is no justification for not producing the proposed evidence in the trial court. The application is thus without any merit and is, therefore, dismissed. Learned counsel for the appellant emphatically contended that compromise dated 10.09.1994 can be looked in to for the collateral purpose of determining the genuineness and validity of the impugned Will. This contention also does not help the appellant because the compromise cannot have the effect of cancelling the Will when there is not even any reference to the Will in the said compromise. Omission to mention the Will in the compromise would also not depict that the Will was not executed by Harbans Singh, when there is cogent evidence to prove execution of the Will and also there is admission by the plaintiff himself regarding the execution of the Will. REGULAR SECOND APPEAL No.1307 OF 2011(O&M) -6- For the reasons aforesaid, I find no merit in the instant second appeal. Concurrent finding recorded by both the courts below against the plaintiff-appellant is fully justified by the evidence on record and is supported by various reasons recorded by the courts below in detailed judgments. The said finding does not warrant interference in second appeal as it is not shown to be perverse or illegal nor it is based on misreading or mis-appreciation of evidence. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine. (L. N. MITTAL) JUDGE 18th March, 2011 'raj'