IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.968 of 2009 (O&M) Date of Decision: 25.5.2010 Subhash Chander. ....... Appellant. Versus Smt.Ramditi and others. ....... Respondents . CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri Gulab Singh Malik, Advocate for the appellant. .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiff is in second appeal. He filed a suit for declaration pleading that he is owner in possession of 1/6th share of the land described in the plaint which land belonged to his father-Girdhari Lal and according to the right of succession, he was entitled to succeed 1/6th share, whereas his mother-Smt.Ramditi, who was arrayed as defendant no.1, and defendant no.6 were entitled to 1/6th share each, whereas proforma defendant nos. 4 to 6 were entitled to equal ½ share in the suit property and that mutation of inheritance should have been recorded appropriately. He also questioned Will dated 4.11.1993 executed by his father in favour of his mother- R.S.A.No.968 of 2009 (O&M) -2- .... Ramditi, who was arrayed as defendant no.1. It was averred that Girdhari Lal was owner of the property in question which was ancestral in nature and that Will dated 4.11.1993 in favour of the mother of the plaintiff was a result of fraud and not binding on his rights. He also questioned the right of defendant no.1 to get the mutation sanctioned in her favour on the basis of said Will. Defendant no.1 contested the suit and pleaded that Girdhari Lal was absolute owner of the suit property and neither the plaintiff nor proforma defendant nos. 4 to 6, who are her sons and daughter, were entitled to claim any inheritance of the same. She claimed that the Will in question was valid and her possession on the suit property was as owner on its basis. She pleaded that Girdhari Lal, during his life time, had given shares of the plaintiff and proforma defendant nos. 4 & 5 and they were left with no right in the suit property which had come to her on the basis of Will. She denied that the suit property was ancestral. A counter claim was also filed by defendant no.1 wherein she pleaded that the plaintiff and proforma defendant nos. 4 to 6 be restrained from interfering in her possession of the property which Girdhari Lal had bequeathed in her favour. Tehsildar, Barwala and State of Haryana, who were impleaded as defendant nos. 2 and 3, in a joint written statement, justified their action in granting mutation in favour of defendant no.1, the beneficiary of the Will. The proforma defendant nos. 4 to 6 also filed their written statement and took similar pleas as taken by defendant no.1. R.S.A.No.968 of 2009 (O&M) -3- .... Defendant no.7 also filed his written statement while raising several preliminary objections. On merits, he alleged that deceased-Girdhari Lal was not owner in possession of the suit land on the date when he executed Will dated 4.11.1993. It was pleaded that Girdhari Lal had already given the suit property to defendant no.7 by way of a decree dated 5.6.1989 passed in civil suit titled “Prem Kumar Versus Girdhari Lal” which fact was within the knowledge of defendant nos. 1 and 4 to 6. He alleged that Will dated 4.11.1993 was null and void, against facts, based on misrepresentation and not binding upon his rights. The parties went to trial on as many as six issues and both the Courts below, after appraisal of the entire evidence on record, dismissed the suit as well as the first appeal of the appellant. It was concluded that Will dated 4.11.1993 was valid and during his life time, Girdhari Lal had given shares to the plaintiff and defendant nos. 4 to 6 & 7 from the property which belonged to him. They further returned a finding that the suit property was not proved to be coparcenary. In the instant appeal, learned counsel for the plaintiff-appellant contended that the findings recorded by the Courts below are erroneous and are liable to be set aside. I have heard the learned counsel for the plaintiff-appellant and have gone through the impugned judgments. The foremost question that is to be determined is as to whether the suit property was coparcenary as pleaded by the plaintiff or not. Apart from the bald statement made by the plaintiff, there is no R.S.A.No.968 of 2009 (O&M) -4- .... other material on record to show that the suit property was coparcenary in nature. The plaintiff failed toi trace out the lineage of the suit property and consequently, the findings recorded by the Courts below that the suit property was not proved to be coparcenary property, cannot be faulted with. In so far as the question relating to the validity of Will dated 4.11.1993 is concerned, the plaintiff pleaded fraud, but was unable to substantiate such a plea. It has also transpired from the material on record that by way of suffering a civil court decree in favour of the plaintiff and defendant nos. 4 to 6 & 7, Girdhari Lal had distributed amongst them the property owned by him and retained some property, i.e., the suit property,which he alienated in favour of his wife, i.e., defendantno.1, by way of Will dated 4.11.1993. It is a settled proposition of law that a person, who pleads a fraud, must necessarily prove it by leading cogent evidence. The existence of the Will in favour of defendant no.1 has not been denied and rather, it has been admitted by the plaintiff himself that Will in question was executed by his father in favour of his mother, but pleaded that the same was based on fraud and misrepresentation. In these circumstances, it was incumbent upon the plaintiff to have proved his allegation, but, as mentioned above, he has failed to substantiate his averment by producing cogent evidence. On the basis of the above discussion, it is apparent that the appellant has failed to prove coparcenary nature of the suit property and has also not been able to dislodge the validity of Will dated 4.11.1993. He has also been unable to show any injustice for the simple reason that Girdhari R.S.A.No.968 of 2009 (O&M) -5- .... Lal, during his life time, had given the plaintiff and his other sons & daughter sufficient land and bequeathed the suit property which was retained by him in favour of defendant no.1. Accordingly, there is no infirmity in the findings recorded by the Courts below. No substantial question of law has been shown to have arisen for consideration of this Court. The appeal is, therefore, held to be without any merit and is dismissed. May 25,2010 ( Mahesh Grover ) “SCM” Judge