Civil Revision No.5262 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.5262 of 2008 Date of decision: 4.2.2009 Gurmel Singh ...Petitioner Versus Nirmal Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. J.S.Santwal, Advocate for the petitioner. Mr. Padam Jain, Advocate for the respondents. ***** S.D.ANAND, J. The grievance of the defendant-petitioner is with regard to frame of the following additional issue, the onus of proof whereof was placed upon him:- “Whether Jagat Singh executed valid registered will in favour of defendant No.1?OPD” For adjudication of the controversy, learned counsel for the parties have made available to this Court copies of pleadings ( plaint, written statement and replication) of the parties. The following pedigree- table, as between the parties, is apparent from the record:- Jagat Singh | ---------------------------------- | | Dayal Kaur Pritam Kaur (defendant No.2 before T.C.) | | | _______________ | | | Kewal Singh(Dead- Gurmel Singh Harvinder Singh (represented by his legal (Defendants No.1 and 2 before representatives-plaintiffs/ the Trial Court). respondents) Civil Revision No.5262 of 2008 -2- The allegations in the plaint are as under:- Jagat Singh, who was Karta of joint Hindu family, died intestate on 4.1.2003. The parties are his natural heirs. The property in suit was ancestral in the hands of Jagat Singh vis-a-vis the parties to the cause. A part of the land detailed in sub para (a) of the headnote had been purchased with the income of the Joint Hindu Family/coparcenary property; while the land detailed in sub para (b) of the headnote had been inherited by Jagat Singh from his father Mihan Singh. The two sources of acquisition of property notwithstanding, the property was ancestral in the hands of Jagat Singh qua the parties before this court. Petitioner-Gurmel Singh filed a civil (suit No.85 of 14.3.1989) against only Jagat Singh and obtained a collusive decree dated 31.7.1989 with regard to the property detailed in sub para (a) of the headnote of the plaint. Jagat Singh could not have conceded the grant of that decree as the property which was subject of that decree was Joint Hindu Family/coparcenary property in the hands of Jagat Singh vis-a-vis parties to the cause. The allegations, made in the course of that suit that there had been a family partition, were false. That decree had, thus, been obtained by playing fraud and misrepresentation and Kewal Singh (father of Nirmal Singh and Harvinder Singh) who was necessary party thereto had not been impleaded as such before that Court. A mutation also came to be sanctioned of that decree dated 31.7.1989. The plaintiffs-respondents applied for a declaration that they are owner in possession of their share of the property in issue and that the impugned decree and mutation are illegal. Also applied for, in the alternative, was a decree for the possession of the land under reference and a decree for permanent injunction for the restraint of defendant- petitioner Gurmel Singh from transferring the land in issue in any manner whatsoever. Besides raising certain preliminary objections, the defendant- Civil Revision No.5262 of 2008 -3- petitioner averred the validity of the impugned Civil Court decree on a plea that the plaintiffs-respondents never looked after Jagat Singh, to whom services were rendered only by the defendant-petitioner, and it was in lieu of the services rendered that Jagat Singh executed a registered will dated 14.10.1979 in favour Gurmel Singh defendant-petitioner. “He also got himself medically examined regarding his fitenss and of sound disposing mind.” In the rejoinder, the plaintiffs-respondents averred that “even Jagat Singh was not competent to execute the alleged will of coparcenary & JHF property”. The learned Trial Court had initially framed the following issues:- “I. Whether the decree dated 31.07.1989 passed in the suit titled Gurmail Singh V/s Jagat Singh and the subsequent mutation No.5266 passed on the basis of the said decree are illegal, null and void as alleged?OPP. II. Whether the mutation No.6039 of inheritance of Jagat Singh is null and void as alleged?OPP. III. Whether the suit is not maintainable in its present form?OPD. IV. Whether the plaintiffs or barred by their own act and conduct to file the present suit?OPD. V. Whether the plaintiffs have suppressed the material facts from the Court? If so its effect?OPD. VI. Whether the suit is time barred?OPD. VII. Whether the suit is bad for vagueness and ambiguity and is also not properly verified as alleged?OPD. VIII. Whether the suit is liable to be dismissed on account of Civil Revision No.5262 of 2008 -4- non- inclusion of the land situated at village Rania?OPD. IX. Whether the plaintiffs are entitled to the declaration as prayed for?OPP. OR IX-A. Whether the plaintiffs are entitled to the possession of the land in suit as claimed?OPP. X. Whether the plaintiff are entitled to the injunction as claimed?OPP. XI. Relief. “ It was later on only that the above quoted additional issue was framed by the learned Trial Court. Learned counsel for the petitioner argues that framing of additional issue was improper inasmuch as it does not arise from the pleadings of the parties. The plea is resisted by the learned counsel for the plaintiffs- respondents who argues in favour of the validity of the frame of the issue as being relate-able to the pleadings raised by the parties at the trial. It would be apparent from a perusal of the pleadings of the parties that the factum of execution of the impugned will had not been disputed by the plaintiffs-respondents who only averred that a valid will could not have been executed by Jagat Singh in favour of defendant- petitioner Gurmel Singh as it (will) was relate-able to the property which was ancestral in the hands of Jagat Singh qua the parties to the cause. There cannot, thus, be any escape from the conclusion that the issue with regard to competence of the will, does arise from the pleadings of the parties to the cause. However, the frame of the issue does not appear to be proper. It shall be presently read as under:- Whether Jagat Singh could have executed a valid will in Civil Revision No.5262 of 2008 -5- respect of property which was ancestral in his hands qua the parties to the cause? The petition shall stand disposed of accordingly. The stay order dated 29.9.2008 shall stand vacated. The vacation of stay order shall be communicated to the Court concerned forthwith. February 04, 2009 (S.D.Anand) Pka Judge