R.S.A.No. 881 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 16.9.2009 R.S.A.No. 881 of 2007 (O&M) Baij Nath and another ......Appellants Versus Bharat Bhushan and others .......Respondents R.S.A.No. 1542 of 2007 (O&M) Ghanshiam Dev @ Ghanshiam Dutt ......Appellant Versus Bharat Bhushan and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Chaudhary, Sr.Advocate with Mr.F.S.Virk, Advocate and Mr.Vivek Suri, Advocate, for the appellants. Mr.Girish Agnihotri, Sr. Advocate with Mr.Arvinder Seth, Advocate, for the respondents. **** SABINA, J. Vide this judgment, RSA Nos. 881 and 1542 of 2007 R.S.A.No. 881 of 2007 (O&M) 2 would be disposed of as these have arisen out of same judgment. Plaintiffs Bharat Bhushan, Kulbhushan Rishi, Roop Mala and Sunita filed a suit for declaration as well as for permanent injunction and joint possession, which was decreed with costs to the effect that plaintiffs are owners in joint possession of the suit property to the extent of ¼ share by the Additional Civil Judge (Sr.Divn.) Fatehgarh Sahib vide judgment and decree dated 3.6.2004. In appeal filed by defendants No.2, 3 and 5, the said judgment and decree were upheld by the Additional District Judge, Fatehgarh Sahib vide judgment and decree dated 19.9.2006. Hence, the present appeals by the defendants No.2, 3 and 5. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 3 and 4 of its judgment, are as under:- “3. The brief facts of the case of the plaintiffs are that Bhagwanti Devi was earlier owner in possession of the suit property who died on 20.7.1991 as an intestate . That she was survived by defendants No.1 to 3 as her sons and one Sulochana Devi as her daughter and Sulochana her daughter is the mother of the plaintiffs. That Sulochana, the mother of the plaintiffs also expired on 25.3.1997 and the plaintiffs are the natural heirs of Sulochana. That after death of Bhagwanti, defendants No.1 to 3 had been giving the produce of the property of the share of Sulochana to her but they had stopped to do R.S.A.No. 881 of 2007 (O&M) 3 so after death of Sulochana since Rabi 1997. That the defendants have obtained mutation No.1684 on the basis of some WILL dated 17.11.1975 purported to have been executed by Bhagwanti in their favour in an illegal way. The plaintiffs have accordingly prayed for a decree of declaration, permanent injunction and joint possession against the defendants. 4. Notice of this suit was served upon the defendants by the trial Court. The defendants No.2 to 5 filed the joint written statement vide which they contested the suit of the plaintiffs vehemently, whereas, the other defendants have not filed any written statement in the trial Court. It is averred in the legal objections in the written statement of contesting defendants that plaintiffs have no locus standi to file the suit and suit is not maintainable in the present form. That suit is time barred and is also barred under Order 2 Rule 2 CPC. That suit is also not competent under Order 7 Rule (i) J of CPC. On merits, the contesting defendants averred that Chhajju Ram son of Ganpat Ram was earlier owner in possession of the suit property and he executed a registered WILL in favour of Bhagwanti on 6.3.1964. That it was specifically mentioned in the Will that after death of Bhagwanti. The sons of Bhagwanti, who are defendants in this case, R.S.A.No. 881 of 2007 (O&M) 4 would be the owners of the property in dispute. That Bhagwanti executed her WILL on 17.11.1975 in favour of defendants. That mutation No.1684 has been correctly sanctioned on its basis. The defendants controverted the other averments of the plaintiffs and prayed for dismissal of the suit of the plaintiffs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the declaration as prayed for? OPP 2. Whether the plaintiff is entitled to the injunction as prayed for? OPP 3. Whether the plaintiff is entitled to joint possession of the suit property? OPP 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is not maintainable? OPD 6. Whether the suit is barred under Order 2 Rule 2 CPC? OPD 7. Relief. Following additional issues were framed on 13.3.2004:- 6-A Whether Bhagwanti has allegedly executed her last Will dated 17.11.1975 in favour of the defendants No.1 to 3 ? OPD R.S.A.No. 881 of 2007 (O&M) 5 6-B Whether Chhaju Ram has executed a valid Will dated 6.3.1964 in favour of Bhagwanti ? OPD” After hearing learned senior counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. The plaintiffs had filed a suit for declaration that they were owner in equal share of the property in dispute to the extent of 1/4th share being successors of Bhagwanti. Admittedly, suit property was owned by Bhagwanti. The plaintiffs are the children of daughter of Bhagwanti, whereas, defendants are the sons and grand children of Bhagwanti. The defendants have placed reliance on registered Will dated 6.3.1964 Ex.D-1 executed by Chajju Ram in favour of Bhagwanti Devi. Admittedly, on the basis of the said Will Bhagwanti became owner of the property in dispute. In the facts and circumstances of the present case, the defendants were not required to establish the genuineness of the Will Ex.D-1. In fact, the execution of the Will Ex.D-1 was not in dispute as the property in question was inherited by Bhagwanti on the basis of the Will Ex.D-1 and the said property has given rise to the lis between the parties. In these circumstances, the learned Additional District Judge erred in holding that the Will Ex.D-1 was not a genuine document because execution of the same was not much in dispute. A perusal of the Will Ex.D-1 reveals that Chajju Ram bequeathed his property in favour of Bhagwanti. It was further R.S.A.No. 881 of 2007 (O&M) 6 mentioned in the Will that in case Bhagwanti died during the life time of the executant Chajju Ram then the sons of Bhagwanti would inherit the suit property. However, Chajju Ram died before Bhagwanti and consequently, Bhagwanti became absolute owner of the suit property on the basis of the Will. Bhagwanti could dispose of the property in the manner she liked. As per the case of the defendants Bhagwanti executed the Will dated 17.11.1975 Ex.D-2 in favour of her sons regarding the suit property. However, the defendants failed to prove the Will as per the requirement of law. As per Section 68 of the Indian Evidence Act, 1872, in order to prove a Will, propounder of the Will is required to examine at least one attesting witness of the Will in proof of the execution of the Will. However, in the present case the defendants failed to examine any of the attesting witness of the Will in question. The application filed under Order 41 Rule 27 CPC for summoning the concerned Clerk of Sub Registrar with regard to the Will dated 17.11.1975 was rightly dismissed by the learned Additional District Judge as the defendants could not be allowed to fill up the lacuna in their case. The defendants were required to plead and prove their case but had failed to establish that despite due diligence they could not examine the concerned Clerk to prove the Will in question. The plaintiffs being the children of Sulochana Devi, daughter of deceased Bhagwanti were entitled to get 1/4th share in the suit property along with sons and grand children of Bhagwanti. There is no dispute with R.S.A.No. 881 of 2007 (O&M) 7 regard to the fact that the plaintiffs are the children of Sulochana Devi, daughter of Bhagwanti. Hence, both the Courts below have rightly decreed the suit of the plaintiffs. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE September 16, 2009 anita