R.S.A. No. 3688 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3688 of 2008 Date of decision : 29.1.2009 Harvail Singh ....Appellant Versus Pal Singh alias Shamsher Singh and others ...Respondents CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr. Amarjit Singh Virk, Advocate for the appellant. ..... MAHESH GROVER, J. This appeal is directed against the judgments of the learned trial Court dated 12.3.2007 and that of the first Appellate Court dated 13.6.2008. A suit was filed by the appellant regarding the property measuring 171 Bighas 6 Biswas and it was alleged that the suit land belonged to Jawahar Singh and on his death it devolved upon Gurbax Singh his sole son. After the death of Gurbax Singh the property devolved upon his four sons namely, Mangal Singh, Tirlok Singh, Sangat Singh and Puran Singh. Mangal Singh died issueless leaving behind his widow Bachint Kaur as his sole heir to inherit 1/4th undivided share and the other coparceners namely, Puran Singh, R.S.A. No. 3688 of 2008 -2- Sangat Singh and Tirlok Singh remained undivided coparceners of the remaining 3/4th share. On 23.8.1963, Tirlok Singh died issueless without leaving any widow to inherit his estate which devolved upon the surviving coparceners in equal shares and thus the interest of the remaining coparceners namely, Sangat Singh and Puran Singh increased by law of survivorship and both of them became joint owners of ½ share in the suit land. The appellant/plaintiff being the only heir of Puran Singh claimed ½ share in the suit property whereas the remaining ½ share was inherited by the respondents. Though Tirlok Singh was legally incapable of interfering with the right of survivorship of the remaining coparceners in the Mitakshara family, an alleged attempt was made by him to bequeath his undivided 1/3rd share in favour of defendant No.1. The alleged Will dated 13.12.1960, on the basis of which mutation No.18 had been sanctioned, was sought to be declared null and void by way of this suit. The respondents contested the suit to say that Tirlok Singh died issueless on 23.8.1963 leaving behind Pal Singh alias Shamsher Singh, defendant No.1 as his only legal heir on the basis of the registered Will dated 13.12.1960 which was voluntarily and duly executed by him in his favour. It was pleaded that mutation No.18 was sanctioned in favour of defendant No.1 (respondent No.1) in the presence of the plaintiff/appellant and was to his knowledge. It was then pleaded that Puran Singh, father of the plaintiff/appellant died in the year 1979 and he never challenged the correctness and validity of the Will executed by Tirlok Singh during his life time and therefore R.S.A. No. 3688 of 2008 -3- the entire litigation which has been sought to be raised by the appellant is frivolous. Both the parties went to trial on the following issues :- 1. Whether the plaintiff is owner in possession of ½ share of the suit land?OPP 2. Whether the mutation No.18 attested on 2.12.1963 on the basis of alleged Will of Tirlok Singh since deceased in favour of the defendant No.1 is null, void and an act of fraud as alleged?OPP 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the plaintiff is estopped from filing the present suit?OPD 5. Whether the suit of the plaintiff is time barred?OPD 6. Whether the plaintiff has no locus standi to file the present suit?OPD 7. Whether the suit of the plaintiff is bad for non- joinder and mis-joinder of necessary parties? OPD 8. Relief. Additional issues No.3-A to 3-C were also framed which are to the following effect :- 3-A Whether the defendant No.1 is owner of the suit property because of registered Will dated 13.12.1960, validly executed by Tirlok Singh in his favour? OPD 3-B Whether the defendant No.1 has become owner of R.S.A. No. 3688 of 2008 -4- the suit property by adverse possession as alleged in para no.5 of the preliminary objections?OPD 3-C Whether the parties are governed by customary law in the matter of succession and alienation?OPD Both the Courts came to the conclusion that the Will was valid as Puran Singh, father of the plaintiff/appellant had never challenged the same during his life time and that almost after 30 years of the execution of the Will, which had been acted upon, the appellant was precluded from challenging the validity of the same. The suit of the plaintiff/appellant was accordingly dismissed by both the Courts. Learned counsel for the appellant stated that even though one of the attesting witnesses namely, Jagdeep Singh was alive, yet he was not examined in support of the Will and hence the same was not proved in accordance with law. After hearing the learned counsel for the appellant and perusing the impugned judgments, I am of the opinion that the contention raised by the learned counsel for the appellant is misplaced. The will is of the year 1960. The testator Tirlok Singh died in the year 1963. Puran Singh, the father of the appellant was also alive for a considerable time and he died in the year 1979. No attempt was made by Puran Singh to challenge the validity of the Will during his life time. Obviously, the sanctioning of the mutation would have been to the knowledge of the appellant and as many as for three decades he did not raise any objection to it. Therefore, the finding on this issue recorded by the Courts below cannot be faulted with in the regular second appeal. R.S.A. No. 3688 of 2008 -5- No substantial question of law has been shown to have arisen in the appeal. Accordingly, the same being devoid of any merit is dismissed. 29.1.2009 (MAHESH GROVER) JUDGE dss