RSA No.2486 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2486 of 2004(O & M) Date of Decision: 09.12.2008 Sarup Singh & anr. ....appellants Versus Roshan Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Karminder Singh,Advocate for the appellants Mr.Animesh Sharma, Advocate for the respondents **** RAKESH KUMAR GARG J. This is plaintiffs' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiffs for declaration to the effect that the plaintiffs and defendant No.6 to 28 are joint owners in possession of suit land and the sale deed dated 15.03.1995, 21.03.1995 and 10.05.1995 alleged to have been executed by the deceased Parkash Kaur in favour of defendants No.1 to 3 respectively and that the alleged Will dated 29.03.1995 are the result of fraud and forgery committed by defendant Nos.1 to 5 and hence are null and void with consequential relief of permanent injunction restraining the defendant Nos.1 to 5 from interfering in the possession of and forcibly dispossessing the plaintiffs and defendants No. 6 to 28 therefrom, has been dismissed. In brief, the case of the plaintiff-appellants was that the suit land had been joint ownership of Kartar Singh and Daulat Singh sons of Puran Singh and they inherited the same from their father and was ancestral property; that after the death of Kartar Singh, his ½ share in the RSA No.2486 of 2004 2 suit property was inherited by plaintiffs and defendant no.6 in equal shares; that after the death of Daulat Singh, his ½ share in the suit property was inherited by his widow Parkash Kaur and she died issueless on 30.5.1995; that Daulat Singh was having two brothers Kartar Singh and Joginder Singh, and two sisters, namely, Kartari and Durgi and all of them pre- deceased Parkash Kaur and the plaintiffs and defendant No. 6 to 28 were sons and daughters of the aforesaid brothers and sisters of the deceased Daulat Singh and had succeeded to the estate of Parkash Kaur, after her death; that defendant No.1 Roshan Singh was brother of deceased Parkash Kaur, while defendants No. 2 to 5 were sons of defendant no.1; that deceased Parkash Kaur started showing signs of fickle mind and her mental condition started decaying about 2/3 years prior to her death, after which she became easily susceptible to impression and influence; that the condition of Parkash Kaur further deteriorated during the last year of her life and she almost became of imbecile mind and lost the senses of free and independent judgment and discretion; that after the death of Parkash Kaur, defendants no.1 to 5 started alleging that she had executed sale deed dated 15.3.1999 in favour of defendant no.1. Another sale deed dated 29.3.1995 in favour of defendant no.2 and the sale deed dated 10.5.1999 in favour of defendant no.3 out of the property in dispute; that defendants No. 1 to 5 further alleged that Prakash Kaur executed a Will dated 29.3.1995 in favour of defendants no. 2 to 4; that the alleged sale deeds and the Will were the result of fraud and forgery committed by defendants No.1 to 5 upon Parkash Kaur; that the plaintiffs requested the defendants to admit their claim with respect to the property in dispute but they refused to do so. Hence the suit. The suit was contested by defendants No.1 to 5 jointly taking up preliminary objections that the suit was barred under Order 2 Rule 2 CPC. After the death of Smt. Parkash Kaur, the cause of action of RSA No.2486 of 2004 3 the present suit accrued to the plaintiffs but the plaintiff No.1 filed suit for injunction against the defendants No. 1 to 3 in which the sale deeds and the Will were referred to and the said suit was dismissed by the court of Shri Surinder Gupta, learned Additional Civil Judge (Senior Division), Hoshiarpur vide judgment dated 3.11.1997 and present plaintiff No.2 was also impleaded as a party in the said suit. The present plaintiffs, however, did not claim the relief of the present case in the said previous suit; that the suit of the plaintiffs was barred under Order 23, Rule 1(4) of the CPC as the earlier suit filed by plaintiff No.1 for declaration against the answering defendants in which the sale deeds which are in issue in the present case were challenged and present plaintiff Gurmukh Singh was impleaded as defendant No.4 and the said suit was dismissed as withdrawn by the court of Shri Jaspal Verma, the then Civil Judge (Junior Division), Hoshiarpur, on 22.4.1998; that the plaintiffs had no locus-standi to file the present suit. On merits, it was claimed that though the property in dispute was earlier owned by Kartar Singh and Daulat Singh but Joga Singh, another brother of Daulat Singh also inherited property from his father. It was averred that Parkash Kaur was being looked-after by contesting defendants and her treatment was got done by the answering defendants, and the plaintiffs never cared for the welfare of Parkash Kaur. It was averred that Parkash Kaur during her life time executed legal and valid Will dated 29.3.1995 in favour of the defendants, on the basis of which they inherited the property of Parkash Kaur. It was averred that Parkash Kaur executed three sale deeds for valuable consideration in favour of defendants No. 1 to 3 who had become owners of the land purchased under the sale deeds and entered in possession of the land. The defendants denying the rest of the averments of the plaint, prayed for dismissal of the suit. On the basis of the pleadings of the parties, the trial Court RSA No.2486 of 2004 4 framed the following issues: 1. Whether the plaintiffs along with defendants No. 6 to 28 are joint owners in possession of the suit land?OPP 2. Whether impugned sale deeds dated 15.03.1995, 21.03.1995 and 10.05.1995 alleged to have been executed by Parkash Kaur in favour of defendant Nos.1 to 3 respectively; as also whether alleged Will dated 29.03.1995 are the result of fraud and forgery committed by defendants No. 1 to 5 and hence, null and void qua the rights of plaintiff and defendant nos. 6 to 28, in the present suit?OPP 3. Whether the plaintiffs are entitled to grant of permanent injunction as prayed for? Or in the alternative for joint possession of the suit land as prayed for? OPP 4. Whether the suit of the plaintiff is barred under Order 2 Rule 2(3) CPC? OPD 5. Whether the present suit is barred under Order 23, Rule 1(4) CPC?OPD 6. Whether the plaintiffs have got no locus-standi to file the present suit?OPD 7. Whether the suit is bad for not complying with the provisions of Order 7 Rule 1(J) CPC? OPD 8. Relief. After hearing the learned counsel for the parties, the trial Court returned the findings holding that the Will dated 29.03.1995 Ex.D1 and the sale deeds dated 10.05.95, 29.03.1995 and 15.03.1995 were validly executed by Parkash Kaur and issues no. 1 to 3 were accordingly decided against the plaintiffs and in favour of contesting defendants. Issues No. 4,5,6 and 7 however were decided against the defendants and RSA No.2486 of 2004 5 suit of the plaintiffs was accordingly ordered to be dismissed with no orders as to costs. Feeling aggrieved from the same, the plaintiffs filed an appeal which was also dismissed by the Additional District Judge, Hoshiarpur vide impugned judgment and decree dated 10.03.2004. Still not satisfied, the plaintiffs have filed the instant appeal challenging the judgment and decrees of the Courts below by raising the following the substantial questions of law: 1. Whether the courts below can misread and mis-interpret the evidence before coming to the conclusion that the Sale Deeds in which not a single penny was paid at the time of registration of the sale deed was a legal document? 2. Whether the executant who was suffering from cancer and was mentally incapacitate can execute a WILL in his unsound and indisposing mind? In support of his case, learned counsel for the appellants has vehemently argued that the Will as well as registered sale deeds are surrounded by suspicious circumstances which have been proved on the file. The deceased Testator was not in need of any money and the land in question had been sold without any legal necessity. Moreover, neither a single penny was paid before the Sub-Registrar at the time of registration of the sale deeds nor any amount was deposited in the account of Parkash Kaur, deceased. There was no occasion for the deceased Parkash Kaur to spend such a huge sum. Learned counsel has further argued that Roshan Singh, attorney of Parkash Kaur has no authority to sell the land and thus the reasons recorded by the Courts below non-suiting the plaintiffs are totally perverse. The counsel further contended that sale deeds were got executed by playing fraud with Parkash Kaur and the judgment and RSA No.2486 of 2004 6 decrees of the Courts below are liable to be set aside and the plaintiffs/appellants are entitled to decree as prayed. On the other hand, learned counsel for the respondents has supported the findings of the Courts below and has argued that both the Courts below on appreciation of evidence have recorded a concurrent finding of fact and no question of law arises in this appeal and the same is liable to be dismissed. I have heard learned counsel for the parties and perused the record. The plea of the appellants that at the time of execution of the Will and the sale deeds, Parkash Kaur was not well, is not supported by any evidence except bald statement of the plaintiffs. The plaintiffs/respondents have not placed on record any other evidence. On the other hand, DW2 Madho Singh and DW3 Manohar have stated positively that at the time of execution of the Will, Parkash Kaur was in sound disposing mind, though, according to the plaintiffs they had been giving treatment to Parkash Kaur, yet no medical record was placed on judicial file. It was also admitted by plaintiff Sarup Singh that Parkash Kaur was not being treated for any type of mental illness and she was only having fever which by any stretch of imagination cannot be said to have affected the mental capacity of a person. Another aspect of the case is that Parkash Kaur, after execution of the Will, appeared before the Sub- Registrar to admit the execution of the Will at the time of registration of the sale deeds which belie the case of the plaintiffs regarding Parkash Kaur being of a fickle mind at the time of execution of the Will. In view of the above, no fault can be found in the execution of the Will in favour of the defendants. The second contention of the learned counsel for the appellants that the contesting defendants got executed their sale deeds Ex.D-2, Ex.D-4 and Ex.D-5 and the power of attorney Ex.D-3 from Parkash Kaur by playing fraud and concealment is also without any basis. The RSA No.2486 of 2004 7 plaintiffs/appellants did not allege the circumstances under which the fraud and misrepresentation was played upon Parkash Kaur in getting executed these three sale deeds in question nor any such evidence had been adduced. No plea was taken by the plaintiff-appellants that the sale deeds were without consideration. The execution of the sale deeds is not denied by the plaintiff appellants. Otherwise also the due execution of the three sale deeds had been proved on behalf of the defendants by examining DW2 Madho Singh and DW3 Manohar, attesting witnesses and from the testimony of DW-3 Kulwinder Singh defendant. The plaintiff- appellants being strangers to the sale deeds could not even otherwise challenge the sale deeds claiming the same to be without consideration. I am supported in my view by a judgment of this Court in the case of State of Punjab Vs. Gurmel Singh 2003(2) Civil Court Cases-115(P & H). For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 09.12.2008 neenu