Regular Second Appeal No. 2153 of 2006 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No. 2153 of 2006 Date of Decision: 27.11.2008 Smt. Lila and Another …Appellants Versus Sahib Singh and Others …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Baldev Raj Mahajan, Advocate for the appellants. Mr. Amit Jain, Advocate for respondents No.1 to 4. None for respondents No.5 to 16. Kanwaljit Singh Ahluwalia, J. One Ghasitu was survived by Mangal and Darbo alias Dharmo. Mangal's son is Ram Sarup, who was married to Lilawati. From the loins of Ram Sarup and from the womb of Lilawati, Sham Lal, plaintiff was born. Darbo alias Dharmo had two sons namely Gainda Ram and Mam Chand. They were married to two sisters, namely Manbhari and Surji Devi, respectively. Mam Chand is stated to have died 50 years ago. Manbhari died in 1989. It was pleaded that Surji Devi after the death of Mam Chand did kareva marriage with Gainda Ram. Gainda Ram is said to have died on 5.4.1994. Sham Lal, plaintiff, Regular Second Appeal No. 2153 of 2006 2 claimed that Gainda Ram had made a will dated 17.1.1994 in his favour which was registered on 1.4.1994. The above said facts have been narrated as stated by Mr. Baldev Raj Mahajan, Advocate, appearing for the appellants. These facts have been stated by Mr. Mahajan on the basis of written statement filed by the appellants/defendants. Mr. Amit Jain, Advocate, appearing for plaintiffs/respondents No.1 to 4 stated that suit was filed by Surji Devi stating therein that she being a sole surviving legal heir of Gainda Ram, was his legally wedded wife, was entitled to the estate of Gainda Ram. It was further stated in the suit that Gainda Ram had made no will in favour of Sham Lal. During the course of proceedings, plaintiffs No.2 to 5 who are sons of Jhanda Ram, brother of Surji Devi, had set up a will made by Surji Devi in their favour. Mr. Mahajan states that the entire controversy revolves around two points, which ought to be considered by this Court, whether Gainda Ram had made a will in favour of Sham Lal or not? Secondly even if it is held that Gainda Ram had made no will, appellants/defendants being legal heirs of Surji Dvei from her husband side, will be entitled to the estate of Surji. Therefore, will made by Surji Devi in favour of her brother's sons is being assailed. Having noticed the facts and contentions of the rival side, I proceed to notice the facts of the case as given in the plaint and written statement and concurrent findings of facts arrived by the two Courts below. Surji Devi had filed a suit for declaration and permanent injunction against the defendants on 11.5.1994. It was pleaded by her Regular Second Appeal No. 2153 of 2006 3 that she was legally wedded wife of Gainda Ram son of Datu Ram who had expired on 1.4.1994 in village khukhni. Gainda Ram was owner in possession of agricultural land measuring 44 kanals 6 marlas, details of which has been given in the head notice of the plaint. It was stated that this fact is borne out from jamabandi for the year 1998-99. Gainda Ram was also recorded as owner in possession of 6 marlas gair mumkin bara in village Khukhni. It was stated that Gainda Ram had no male or female child from the wedlock of Surji Devi. It was stated that Gainda had earlier contracted second marriage with Manbhari, who was stated to be sister of Surji Devi. Manbhari died in the year 1989 as issueless. It was further pleaded that defendants intended to grab his property and defendants No.4 to 7 alleged themselves to be owner of land on basis of forged will and on 3.5.1994 defendants made an attempt to take possession of the suit property. Notice of suit was issued. Defendants appeared. They filed joint written statement in which they stated that Surji Devi had no locus standi to file and maintain the suit and she had not approached the Court with clean hands. It was stated that Surji Devi had no relationship with Gainda Ram. Husband of Surji had expired only five years ago. It was further denied that Surji was legally weeded wife of Gainda Ram who had expired on 5.4.1994. It was stated that Gainda Ram had executed a valid and legal will dated 17.1.1994 in favour of defendant Sham Lal and the will was registered on 1.4.1994. Replication was filed in which averments made in the suit were reiterated and that of written statement were denied. The following issues were formulated by learned trial Court:- Regular Second Appeal No. 2153 of 2006 4 1. Whether the plaintiff Surji Devi (since deceased) was the lawful wedded wife of Gainda Ram deceased? If so, its effect? OPP. 2. Whether the plaintiff has become owner in possession of suit land by way of inheritance and is entitled to claim injunction? OPP 3. Whether suit of the plaintiffs is not maintainable? OPD 4. Whether the plaintiffs have not come to the Court with clean hands and has suppressed the material facts from the Court? OPD 5. Whether the Gainda has executed a valid will in favour of defendants no.4 and 7? OPD 6. Whether the plaintiffs have no locus standi to file the present suit? OPD 7. Whether the plaintiffs have no cause of action? OPD 8. Whether the suit is the misuse of the process of the Court? OPD. 9. Relief. Witnesses were examined by both the parties. Learned trial Court after discussing the evidence came to the Regular Second Appeal No. 2153 of 2006 5 conclusion that during the pendency of suit, Surji Devi died and defendants No.2 to 5 were also impleaded as her legal heirs. Learned trial Court has further held that Surji Devi was proved to be lawfully wedded wife of Gainda Ram deceased. Learned trial Court further held that since the will dated 17.1.1994 was registered only five days before the death of Gainda Ram, who was admitted in the hospital, it noticed various circumstances to hold that will Ex.D1 is surrounded by suspicious circumstances and held the same to be false and fabricated document. It was further held that will made by Surji Devi in favour of defendants No.2 to 5 had not been proved and, therefore, they have become stranger to the estate of Gainda Ram. These findings were assailed before learned lower Appellate Court. Learned lower Appellate Court considered all the evidence and came to conclusion that will Ex.D1 of Gainda Ram relied upon by the appellants/defendants is not reliable. It further held that will Ex.P12 made by Surji Devi in favour of plaintiffs No.2 to 5 had been proved therefore, defendants have no locus stand to claim estate of Gainda Ram. For arriving at these concurrent findings of Fact, the two Courts below have taken various pieces of evidence into consideration especially the statement of Zile Singh DW9. Mr. Mahajan has stated that the findings of the two Courts below are perverse as threadbare evidence has not been considered to hold that will Ex.P12 had been made by Surji Devi in favour of plaintiffs No.2 to 5 is legal and valid will. He has stated that regarding the will Ex. P12 no specific issue was framed. It is further stated that inheritance of Regular Second Appeal No. 2153 of 2006 6 Surji Devi was not a subject matter of the suit. Mr. Mahajan has further stated that in case will Ex.P12 is ignored then the appellants will succeed to the estate of Gainda Ram even though the same was inherited by Surji Devi. It has been further stated that as per law of succession, after the death of Gainda Ram and Surji Devi, the property has to devolve upon the appellant in natural course of succession. It has been further stated that the Courts below have relied upon stray line in cross-examination of Zile Singh DW.9 that appellants were neighbourers and not in relations of Gainda Ram. Mr. Amit Jain has stated that issue No.6 was specific to the extent that whether the plaintiffs had got locus standi to file the present suit or not? It has been stated that locus standi of plaintiffs No.2 to 5 was to be determined by the Courts and for determining the same, the Court has to examine the validity of the will Ex.P12. I have given my thoughtful consideration to the rival contentions advanced by learned counsel for the parties. The findings of two Courts below that Surji Devi was the legally wedded wife have not been assailed before me. Finding of the two Courts below that will Ex.D1 was a fabricated and fictitious document is also not challenged before me. Dispute has been confined only to the extent that whether validity and legality of will Ex.P12 made by Surji Devi could be gone into by the Courts without having formulated any specific issue. It will be pertinent here to mention that after the death of Surji Devi, amended plaint was filed in which it was specifically stated that plaintiffs No.2 to 5 had succeeded to the property on basis of will Ex.P12 executed by Surji Devi. Appellants/defendants had sufficient Regular Second Appeal No. 2153 of 2006 7 opportunity to controvert the same. Issue No.6 was formulated that whether plaintiffs No.2 to 5 have a locus standi or not?, could only be adjudicated after validity and legality of the will Ex.P12 was to be examined and determined by the two Courts below. It is because of will Ex.P12, plaintiffs No.2 to 5 were deriving their interest in the estate otherwise they were alien to the estate and, therefore, the Courts below were bound to determine the validity of will Ex.P12. Therefore, the Courts had examined the evidence and returned a finding. When parties were conscious regarding the dispute and were agitating upon the same, there was no need to frame a specific issue. Therefore, there is no material argument has been raised before me to disturb the concurrent findings of fact recorded by the two Courts below. Hence, there is no merit in the present appeal and the same is dismissed. (Kanwaljit Singh Ahluwalia) Judge November 27, 2008 “DK”