RSA.No.4293 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA.No.4293 of 2011 Date of Order: 2.11.2011 Smt Veera Kumari and others .....Appellants Vs. Smt Natho Devi and others .....Respondents CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Ram Avtar Yadav, Advocate for the appellants. JASWANT SINGH, J (ORAL) Defendants-appellants in the instant second appeal are challenging the impugned judgment and decree dated 15.12.2010 passed by learned Civil Judge (Jr. Division), Gurgaon whereby the suit filed by the respondents-plaintiffs was decreed as also the judgment and decree dated 23.9.2011 passed by the learned Additional District Judge, Gurgaon whereby the appeal filed by them has been dismissed. The facts in brief are that the plaintiffs-respondents filed a civil suit No.197 dated 9.8.2005 for partition of house No.177-B, New Colony, Gurgaon with a consequential relief of permanent injunction. It is averred that the suit property i.e H.No.177-B along with another house bearing H.No.177-A was allotted to one Mool Raj Chopra (since deceased), who was married to one Smt Onkar Devi and had five daughters i.e Natho Devi- plaintiff/respondent No.1, Prem Lata, Veera Kumari-defendant/appellant No.1, Bimla Devi-defendant/appellant No.2 and Darshana Kumari- defendant/appellant No.3. Plaintiff-respondent Nos.2 & 3/husband and RSA.No.4293 of 2011 #2# daughter respective of said daughter Prem Lata. Said Mool Raj Chopra died on 21.8.1956 and after his death, the said property was mutated in the name of his wife Onkar Devi instead of her five daughters. During the life time, Smt Onkar Devi alienated H.No.177-A but later on she died on 6.5.2004. After his death, the suit property was occupied by defendant/appellant No.1- Veera Kumari as a co-sharer. Plaintiff requested to get the property partitioned by metes and bounds but the defendants refused, hence the suit was filed. The suit was contested between the parties and ultimately the same was decreed vide judgment and decree dated 15.12.2010 passed by learned Civil Judge (Jr. Division), Gurgaon. On an appeal having been filed by the defendants-appellants, the same has been dismissed vide judgment and decree dated 23.9.2011 passed by learned Additional District Judge, Gurgaon, hence the present appeal. Learned counsel for the appellants argues that the impugned judgment and decrees passed by both the courts below are wholly erroneous and liable to be set aside in view of the registered will dated 23.10.2003 (Ex.PW5/A and Ex.D.11) and the suit of the plaintiff-respondents was liable to be dismissed. After hearing learned counsel for the appellants and perusing the paper book, this court does not find any merit in the present appeal and the same deserves dismissal since no substantial question of law is involved in the present appeal, which is sine qua non for exercising of jurisdiction under Section 100 CPC. The learned trial Court on the pleadings of parties framed as many as eight issues and issue Nos.1 & 7 being the material issues are reproduced hereunder: RSA.No.4293 of 2011 #3# “1. Whether all the daughters of Sh. Moolraj Chopra and Smt Onkar Devi Chopra are entitled to 1/5th share in suit property?OPP 7. Whether Smt Omkar Devi Chopra executed a will dated 23.10.2003 in favour of defendant No.1 to the extent of 250 sq yards of the total area of plot in question?OPD” While deciding issues Nos.1 & 7, learned trial Court has clearly observed that it is an admitted case of both the parties that initially the house was allotted to said Mool Raj Chopra (since deceased). At the time of his death, certain allotments were due, which were paid by his wife-Smt Onkar Devi and she became the owner of the house by way of Conveyance Deed dated 10.11.1956 (Ex.P.1 and Ex.D.1). Learned trial Court also came to the conclusion that five daughters of said Mool Raj Chopra had shares to the equivalent extent being Class-I heirs along with their mother i.e 1/6th share each. Learned trial Court has further observed that Smt Onkar Devi could have executed a will to the extent of 1/6th share as per Section 30 of the Hindu Succession Act. So far as the legality and validity of the alleged Will is concerned, it has been specifically observed by the learned trial Court that no attesting witness was produced to prove the same and consequently the Will was held to be not proved. Taking into account this factual background, the learned trial Court came to the following conclusion in para 17 of its judgment: “In view of above discussion it is established that plaintiff No.1 and defendant Nos.1 to 3 have 1/5th share each in the suit property while plaintiff Nos.2 and 3 have 1/5th share in equal share in the suit property being husband and daughter of deceased Prem Lata who was daughter of Sh. Mool Raj Chopra and Smt Onkar Devi as per section 15 Sub Section 1 of Hindu Succession Act. It may be observed that the RSA.No.4293 of 2011 #4# provisions of Sub Section 2(ii) of Section 15 of the Hindu Succession Act are not applicable in the case in hand as the daughter of deceased Smt Prem Lata namely Sarita (plaintiff No.3) is alive.” Learned first Appellate Court also concurred with the finding of learned trial Court and observed that undisputedly the suit property was allotted to Mool Raj Chopra by the Rehabilitation Department in lieu of property left behind by him in Pakistan at the time of partition of the country. He was a government employee and died on 21.8.1956 and Conveyance Deed of the property was executed in favour of his wife Onkar Devi, who died on 6.5.2004. Learned first Appellate Court while dealing with the legality of will dated 23.10.2003 (Ex.D.11) observed that the original will has not been brought on record. Neither Scribe nor any of the attesting witness of the said will has been examined to prove the authenticity of the will. It was further observed that even the will is not signed by Sub Registrar, who is alleged to have registered the will. PW5-Babu Ram-UDC from the office of Sub Registrar has deposed that the will does not bear signature of Sub Registrar and relevant finding of the first appellate Court in paragraph 12 reads as under: “The case of defendant No.1 Veera Kumari is that her mother Omkar Devi had executed Will dated 23.10.2003, Ex.D11 regarding area measuring 250 sq yards out of the suit property. It may be mentioned here that original Will dated 23.10.2003 has not been brought on record. Neither the scribe nor any of the attesting witnesses of the said Will has been examined in the court to prove the said Will. A further scrutiny of the said Will reveals that it was not signed by the Sub Registrar who purported to have registered the Will. PW5 Babu Ram UDC had deposed before the court that the Will did not bear signatures of the Sub Registrar under his seal.” RSA.No.4293 of 2011 #5# In view of the discussion made above, it is apparently clear that both the courts have rightly held the so called will dated 23.10.2003 (Ex.D.11) as not proved and as such no reliance can be placed upon the same. The factual foundation that neither the Scribe nor attesting witness of the will has been examined in the Court to prove the execution of will, this Court is left with no alternative but to affirm the finding of fact also recorded by both the courts below. Resultantly, the arguments of the learned counsel for the appellants by relying upon the will dated 23.10.2003 is of no consequence and this Court does not find any illegality or perversity to differ with the concurrent findings of fact recorded by both the courts below. Dismissed. November 02, 2011 ( JASWANT SINGH ) manoj JUDGE