RSA No. 1966 of 2006 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1966 of 2006 (O&M) Date of Decision: 16.5.2011. Chuhar Singh and another .......Appellants Vs. Gurcharan Singh & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. S.S.Toor, Advocate for the appellants. Mr. Naresh Kaushal, Advocate for respondents No. 1, 2, 4 and 5 to 14. ..... SABINA, J. Plaintiffs had filed a suit for declaration challenging the sale deed, release deed dated 10.7.2001 and mutation No. 2430. The case of the plaintiffs in brief was that Jiwan Singh was owner in possession of the land in dispute. Jiwan Singh died on 24.5.1966 leaving behind Manohari, Bakshish Kaur, Kodo Kaur, Bachni Kaur and Gomti Kaur as his legal heirs. Manohri Kaur died on 9.8.1987. Bakshish Kaur died in the year 1987. Kodo Kaur died in the year 1961 and Bachni Kaur died in the year 1993. Bakshish Kaur was represented by defendant No. 1 and Kodo Kaur was represented by defendant No.2. Bachni Kaur was represented by defendant No.3. During the RSA No. 1966 of 2006 (O&M) -2- pendency of the suit, defendants Charan Singh, Dokhan Kaur, Joginder Kaur, Jarnail Kaur, Jagir Kaur, Charan Kaur, Gurcharan Singh and Jasbir Singh executed the sale deed dated 10.7.2001 in favour of defendants Aman Kaur and Vivek Kumar. Defendants Charan Singh, Dokhan Kaur, Joginder Kaur, Jarnail Singh also executed release deed dated 10.7.2001 in favour of Gurcharan Singh and Jasbir Singh with regard to suit property. The said sale deed and release deed were illegal and were liable to be set aside. The mutation dated 15.11.1995, sanctioned on the basis of the sale deed and release deed, was liable to be set aside. Manohari was not shown as successor of Jiwan Singh, although she was alive at the time of death of Jiwan Singh. Surmukh Singh was not shown as son of Jiwan Singh in the pedigree table at the time of sanctioning of mutation. Bakshish Kaur, Kodo Kaur, Bachni Kaur had died before the sanction of mutation on 19.10.1995. Manohri was also owner in possession of some property in village Lohara and had executed a will in favour of the plaintiffs which was registered on 25.5.1978. Plaintiffs had succeeded the property situated in village Lohara on the basis of the will and mutation was sanctioned on 16.2.1990 in their favour. At the time of sanctioning of mutation qua the property situated at village Niwarsi, notice was not issued to the plaintiffs. On the basis of wrong mutation, defendants were threatening to alienate the suit property. After the death of Jiwan Singh, his four daughters and widow had inherited 3 Kanals 5 Marlas of land each. The plaintiffs were owners in possession to the extent of the share of Manohri. Defendants No. 1 to 3 and 5 to 7, in their written RSA No. 1966 of 2006 (O&M) -3- statement, averred that the land, mentioned in para No. 1 of the plaint, was owned and possessed by the defendants. The description of the land had not been properly given. The plaintiffs were the legal heirs of Dhanna Singh. All the legal heirs of Jiwan Singh were not mentioned in the pedigree table. Surmukh Singh was son of Jiwan Singh, who had died and therefore, his widow and children had inherited his share out of the suit property. The share of Bakshish Kaur, Bachni Kaur and Kodo Kaur was inherited by their legal heirs. Mutation No. 2430 had been rightly sanctioned by the revenue authorities. Plaintiffs had no concern with Manohri and Surmukh Singh was the son of Jiwan Singh as mentioned in the mutation No. 637 sanctioned on 7.6.1966 of village Lohara. Mutation No. 930 dated 16.2.1990 was wrong and against the law and facts and was not binding on the rights of the defendants. Defendants No. 15 and 16, in their written statement, averred that the sale deed dated 10.7.2001, executed in their favour, was for consideration. The vendors were owners in possession of the suit property. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiffs are in cultivating possession of the disputed land on the grounds mentioned in the plaint? OPP 2. Whether mutation No. 2430 is illegal, null and void and is liable to be set aside on the grounds mentioned in the plaint? OPP 3. Whether deceased Manohari has executed a valid RSA No. 1966 of 2006 (O&M) -4- will on 25.5.1978 in favour of plaintiffs? OPP 4. Whether suit is not maintainable in the present form? OPD 5. Whether plaintiffs have no locus standi to file and maintain the present suit? OPD 6. Whether plaintiffs have no cause of action? OPD 7. Whether plaintiffs are estopped by their own act and conduct from filing the suit? OPD 8. Relief.” Civil Judge (Junior Division) vide judgment and decree dated 2.3.2005 dismissed the suit of the plaintiffs. Aggrieved by the said judgment and decree, plaintiffs preferred an appeal and the Additional District Judge, vide judgment and decree dated 27.2.2006 dismissed the appeal. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the courts below had erred in dismissing the suit of the plaintiffs. Manohari had executed a registered valid will in favour of the plaintiffs qua her share. Plaintiffs had become owners of the suit property to the extent of share of Manohari. Learned counsel for the respondents, on the other hand, has submitted that the will set-up by the plaintiffs was not a genuine document and the plaintiffs had failed to establish that it had been duly executed by Manohari. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. The question that requires consideration in the present case is as to whether the will, set-up by the plaintiffs RSA No. 1966 of 2006 (O&M) -5- dated 25.5.1978, is a genuine document. The will is a solemn document and comes into operation after the death of the testator. In order to establish the due execution of the will, the propounder of the will is required to examine at least one of the attesting witness to the will in compliance of Section 68 of the Indian Evidence Act, 1872. The propounder of the will is further required to dispel any suspicious circumstance surrounding the will. Although in the present case, the will in question is a registered document, yet the same cannot be said to be a genuine document. Admittedly, Manohari was widow of Jiwan Singh and had inherited the share out of the property left by Jiwan Singh on his death. Defendants had placed various documents on record (shown during the course of arguments) to establish that Surmukh Singh was son of Jiwan Singh. In this regard Ex. D-10 is the copy of mutation, qua the property in village Lohara, sanctioned after the death of Jiwan Singh. In the said mutation, Surmukh Singh has been described as son of Jiwan Singh along with other heirs in the pedigree table. The said mutation was sanctioned on 2.6.1966. Manohari Devi has been described as wife of Jiwan Singh. Gomti, Bachni, Kodo and Bakshish Kaur have been described as daughters of Jiwan Singh. As per Ex. D-8, pedigree table, Surmukh Singh has been described as son of Jiwan, whereas Manohari has been described as his wife. Ex. D-9 is the mutation sanctioned qua the property of Surmukh Singh after his death. Jagir Kaur has been described as wife of Surmukh Singh and Gurcharan Singh and Jasbir Singh have been described as his sons and Charan Kaur, RSA No. 1966 of 2006 (O&M) -6- Jarnail Kaur and Jaswinder Kaur have been described as his daughters. Surmukh Singh has been described as son of Jiwan Singh. In Ex. D-11, the mutation qua the property in village Niwarsi, Surmukh Singh has been described as son of Jiwan Singh son of Ballu Singh and it has also been mentioned therein that Surmukh Singh has already died. The said mutation was sanctioned on 19.10.1995. The legal heirs of Surmukh Singh have also been described in the pedigree table. In the copies of the voter lists placed on record, Surmukh Singh has been described as son of Jiwan Singh. As per the death certificate Ex.D-12, Surmukh Singh-deceased has been described as son of Jiwan Singh. Both the courts below, relying upon the said documentary evidence, rightly held that it was duly proved on record that Surmukh Singh was son of Jiwan Singh. A perusal of will dated 25.5.1978 (shown during the course of arguments), reveals that it has not been mentioned therein as to why Surmukh Singh had been denied share in her property by Manohari. The will Ex. P-1 had been allegedly attested by Sugan Singh, Nihal Singh and Tarlok Singh. The plaintiffs examined Nihal Singh, one of the attesting witness as PW-5. The said witness deposed that he knew Manohari who had since died. She had executed a will in favour of Chuhar Singh and Jhanda Singh. He did not know who had got scribed the said will but it was scribed in the old Tehsil. Manohari had thumb marked the same after admitting its contents to be correct. He had attested the will Ex.P-1. He did not know whether Manohari understood her good or bad. The same was her personal matter and he had merely attested the will. The RSA No. 1966 of 2006 (O&M) -7- witness in his cross examination deposed that he did not know if the executant had any child of her own. He further deposed in his cross examination that at the time of registration of will, Chuhar Singh was also present. Chuhar Singh might have talked to the scribe qua the will. The witness further deposed in his cross examination that Jhanda Singh and Chuhar Singh were also present at the time of execution of the will. Thus, from the testimony of PW-5 Nihal Singh, it is evident that the beneficiaries were present at the time of execution of the will and had, thus, taken active part at the time of execution of the will. This makes the will a suspicious document. The defendants, on the other hand, examined Sugan Singh, one of the attesting witness to the will as DW-7 and the said witness deposed that the will in question was not executed in his presence. Keeping in view these facts, the courts below rightly held that the will in question could not be described to be a genuine document. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 16, 2011 Gurpreet