IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 1102 of 2004 Date of decision: December 13, 2011 Mohinder Kaur (since deceased) through her legal heirs .. Appellant Vs. Baljinder Kaur .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjeev Gupta, Advocate for the appellant. Mr. R.S. Ghuman, Advocate for the respondent. A.N. Jindal, J Mohinder Kaur plaintiff- appellant (herein referred as, 'the plaintiff') having lost in her suit for declaration claiming ownership and possession before both the court below has preferred this regular second appeal. The factual matrix of the case is that originally, the suit land was owned and possessed by Sadhu Singh, who had a son namely Avtar Singh. The plaintiff is the widow whereas defendants No.2 to 4 are the sons of said Avtar Singh. The defendant No.1 claims herself to be the daughter of Sadhu Singh. It was averred that defendant No.1 is not the daughter of Sadhu Singh, but is the daughter of Chinta Singh son of Jaimal Singh. Sadhu Singh had executed a Will on 8.6.1981 in favour of the plaintiff and defendants No.2 to 4, but later on defendants No.2 to 4 procured the collusive decree from Sadhu Singh to defeat the rights of the plaintiff and thereafter they in connivance with defendant No.1 instituted a civil suit bearing No. RT-265 of 25.1.1994 to challenge the decree dated 2.12.1985 passed by the civil court in civil suit No.331. In the said suit, the defendants No.2 to 4 did not bank upon the Will dated 8.6.1981. However, in the said suit, the decree dated 22.11.1985 was set aside by the court of Additional Civil Judge (Sr. Division), Ropar, on 7.8.1996. The defendant No.1 got sanctioned the mutation of the suit land to the extent of ½ share in favour of herself and the remaining ½ share in favour of the defendants No.2 to 4. The plaintiff came to know about this fact from Halqa R.S.A. No. 1102 of 2004 -2- *** Patwari on 29.9.1999. Thus, by way of the present suit, the plaintiff Mohinder Kaur has challenged the judgment and decree dated 7.8.1996 passed in favour of defendants No.1 to 4 and has claimed ownership over the property on the basis of the Will dated 8.6.1981. The suit was contested by the defendant No.1. In her written statement, she took some preliminary objections, inter alia that the suit is not maintainable as is barred by the principles of resjudicata; the plaintiff is estopped by her act and conduct from filing the present suit. On merits, it was pleaded that Sadhu Singh never executed any Will on 8.6.1981 and the same is forged and fabricated document. The defendant Nos.2 to 4 obtained the collusive decree dated 2.12.1985 by filing civil suit No.331 against Sadhu Singh which was challenged by defendant No.1 by filing suit No.RT- 265 on 25.1.1994. The said suit was decreed by the court of Additional Civil Judge (Jr. Division), Ropar on 7.8.1996. The defendants No.2 and 3 had also filed the appeal No.243/5.11.1996 but the same was dismissed on 24.9.1999. Still the defendants had filed the regular second appeal No.921 of 2000 before this Court, which again resulted into dismissal on 10.5.2000. The plaintiff being the mother of defendants No.2 and 3 and had been residing with them and she never made efforts to be impleaded as party to the said suit and the present suit had been filed in connivance with the defendants No.2 to 4 after they had lost before the first appellate court. Defendants No.2 to 4 filed separate written statement wherein they admitted their relationship with the plaintiff and further pleaded that they are not in the knowledge of the Will dated 8.6.1981 executed by Sadhu Singh. They further stated that mutation was wrongly sanctioned in favour of the defendant No.1. Replication was also filed. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff and defendants No.2 to 4 are owners in possession of the suit land?OPP 2. Whether the judgment and decree in Civil Suit No. RT- 265 of 25.1.1994 decided on 7.3.1996 by the court of Shri Chanan Singh, ACJ (SD), Ropar is not effecting R.S.A. No. 1102 of 2004 -3- *** rights of the plaintiff and defendants No.2 to 4 to succeed to the property?OPP 3. Whether Sadhu Singh executed valid and registered Will dated 8.6.1981 in favour of the plaintiff and defendants No.2 to 4?OPP 4. Whether defendants No.2 to 4 obtained decree from Sadhu Singh to destroy rights of the plaintiff on 22.11.1985 in Civil Suit No. 331 decided by the Court of Mrs. Sudarshan Modi, the then ASSJ, Ropar?OPP 5. Whether defendants No.2 to 4 deliberately have not propounded Will dated 8.6.1981 in the earlier litigation. If so, its effect?OPD 6. Whether the suit is maintainable in the present form?OPP 7. Whether the suit is barred by Order 2 Rule 2 CPC and Section 11 of CPC?OPD 8. Whether the plaintiff was duly represented in the earlier litigation?OPD 9. Whether the plaintiff is estopped by her act and conduct to file this suit?OPD 10. Whether defendants No.2 to 4 are estopped by their own act and conduct to rely upon the present Will dated 8.6.1981?OPD 11. Whether Will dated 8.6.1981 is forged and fabricated document?OPD 12. Whether defendant No.1 is owner in possession of the suit land?OPD 13. Whether the defendant No.1 is daughter of Sadhu Singh?OPD 14. Relief. The plaintiff in order to discharge the onus on the issues which lay upon her, herself appeared in the witness box as PW-1 and examined Jagjit Singh an attesting witness to the Will as PW-2, PW-3 Rajesh Dhawan R.S.A. No. 1102 of 2004 -4- *** son of Deed Writer to prove the handwriting over the Will Ex.P1 of Prem Nath his adopted father. PW-4 Gurmit Singh Clerk produced the service book of defendant No.1 Baljinder Kaur. PW-5 Rajinder Singh, Registration Clerk produced the record regarding registration of the power of attorney dated 3.3.1988 which was executed by Baljinder Kaur in favour of Balbir Singh and he proved its copy Ex.PW5/1. After tendering into evidence copy of jamabandi Ex.P2, voter lists Ex.P3 and Ex.P4, copy of the entry of registration of Gurudwara Patalpuri mark A and B and receipts mark C and D, closed the evidence. On the other hand, the defendant examined Surinder Singh DW-1 in order to prove the entry of register Ex.D1 maintained by the Gurudwara Patalpuri. Gurmukh Singh Inspector Food and Supplies department (DW2) produced the summoned record and proved the document Ex.DW2/A relating to the ration card of Sadhu Singh. Harjinder Singh, Clerk Senior Secondary School, Gharauan (DW3) to prove the record regarding the admission of Baljinder Kaur daughter of Sadhu Singh in the said school and proved copy of the register Ex.DW3/A. Baljinder Kaur (DW4) reiterated the allegations while stating that she was born in Chak No.27 in Pakistan and her father Sadhu Singh had died on 24.12.1993 while her mother had died on 29.9.1999. She also produced the gift deed Ex.DW4/A copy of the judgment and decree sheet Ex.D5 and D6 both dated 2.12.1985, voter list Ex.D8, copy of the judgment Ex.D9. DW-5 Sital Singh had deposed that Sadhu Singh was his real brother and was married to Harbant Kaur. Out of the wedlock two children namely Baljinder Kaur and Avtar Singh were born. Sadhu Singh used to maltreat Harbant Kaur and finally she had left the house along with her daughter. Defendants No.2 to 4 in their evidence examined Jagtar Singh DW-6 in order to establish that they had been living separately from their mother Mohinder Kaur. They also tendered into evidence copy of the judgment Ex.D10 and decree sheet Ex.D11 dated 7.8.1996, copy of the judgment Ex.D12 and decree sheet Ex.D15 dated 27.11.1997, copy of the order Ex.D16 dated 9.8.1950 copy of the order Ex.D17 dated 26.7.1951, voter list Ex.D18, death certificate of Sadhu Singh Ex.D19 and closed their evidence. R.S.A. No. 1102 of 2004 -5- *** The plaintiff also tendered voter list Ex.P6 and copy of judgment Ex.P7 in their rebuttal. The trial court decided all the issues except issue No.12 against the plaintiff and dismissed the suit. The first appellate court also decided against the plaintiff. Arguments heard. Record perused. At the time of admission, this Court had framed the following substantial question of law : “Whether Sadhu Singh had executed a valid registered Will dated 8.6.1981 in favour of the plaintiff and defendant Nos. 2 to 4 or not?” However, before opening the argument, Mr. R.S. Ghuman, Advocate had also stressed this court to decide the following question of law :- “Whether the suit has been designed malafidely by suppressing the material facts?” The undisputed facts appearing in this case are that Sadhu Singh had a wife namely Harbant Kaur and out of their wedlock, Avtar Singh since deceased and Baljinder Kaur defendant No.1 were born. Sadhu Singh had suffered a collusive decree by filing a suit No.331 on 22.11.1985 which was decided on 2.12.1985 in favour of the defendants No.2 to 4. Baljinder Kaur challenged the said collusive decree by filing suit No.RT- 265 on 25.1.1994 which was decided in her favour on 7.8.1996 and she was held to be owner of ½ share in the property of Sadhu Singh. The appeal against the said judgment was also dismissed by the first appellate court on 24.9.1999. The regular second appeal preferred by the defendants No.2 and 3 was also dismissed on 10.5.2000. The present suit was filed by Mohinder Kaur mother of defendants No.2 to 4 after they lost before the first appellate court, i.e. on 24.9.1999. During the period, since the death of Sadhu Singh i.e. on 24.12.1993 Mohinder Kaur never came to get herself impleaded as R.S.A. No. 1102 of 2004 -6- *** party or otherwise raised claim on the basis of alleged Will dated 8.6.1981, but it appears that she continued waiting for the result of the suit which has been filed by Baljinder Kaur and ultimately when her sons lost up to the first appellate court, she manufactured a device and filed the present suit while passing the alleged Will dated 8.6.1981. While examining the case from another angle, the suit appears to be a clever device manufactured by Mohinder Kaur in connivance with defendants No.2 to 4. Records reveal that actually Sadhu Singh had suffered a collusive decree in favour of defendants No.2 to 4 on 2.12.1985. Sadhu Singh had died on 24.12.1993. Since Sadhu Singh was not left with any property to be conferred upon her by way of Will, after the alleged decree dated 2.12.1985, therefore, he may not be intending to transfer any property in the name of Mohinder Kaur, therefore, she did not set up the Will. Further more, since sons of Mohinder Kaur had already become the owners of the property on the basis of the collusive decree dated 2.12.1985, therefore, she remained silent but when the decree was set aside on 7.8.1996 and the appeal against the said judgment and decree was dismissed in the year 1999, the plaintiff filed the present suit. As regards the jointness of the plaintiff Mohinder Kaur and her knowledge about the litigation, it is established beyond doubt on the record that the plaintiff and defendants No.2 to 4 had been residing together in the same house. From the perusal of the voter list Ex.D18 for the year 1991 and Ex.D7 for the year 1998, it is apparent that the plaintiff had been residing with her sons i.e. defendants No.2 to 4 and had the ration card in the same house. Even ration card Ex.DW2/A proved on the record reveals that Mohinder Kaur had been living with her sons in the year 1991. All this goes to show that at the time of filing the civil suit No.RT-265 of 1994 by Baljinder Kaur, Mohinder Kaur was residing with her sons. The said litigation remained pending up to 24.2.1999. It is highly improbable that Mohinder Kaur remained ignorant about the pendency of the litigation from 1994 to 1999 in spite of the fact that all her sons were involved in the said litigation. If Mohinder Kaur had any claim under the Will, then she would have come to contend about the same and claim her right. R.S.A. No. 1102 of 2004 -7- *** As regards the relationship of Baljinder Kaur with Sadhu Singh, ample evidence has been brought on record in order to prove the same. First of all, in the previous litigation between the sons of the plaintiff and Baljinder Kaur, the civil court had returned the concurrent findings of fact that Baljinder Kaur was the daughter of Sadhu Singh. That apart, in the present case, besides the statement of Baljinder Kaur, she has also placed on record matriculation certificate Ex.D1, character certificate Ex.D2, Junior Basic Teachers' Certificate Ex.D3, school admission card Ex.DW3/A and gift deed Ex.DW4/A in order to establish that Baljinder Kaur is the daughter of Sadhu Sigh. The said documents were also produced by defendant No.1 Baljinder Kaur in the previous litigation and the same were believed to be true by the civil court. Again in order to strengthen the relationship, Baljinder Kaur had examined Sital Singh DW-5 brother of Sadhu Singh. He cleared all the doubts while stating that Harbant Kaur was the widow of Sadhu Singh and out of their wedlock two children namely Baljinder Kaur and Avtar Singh were born. Later on, their relations became strained. The learned counsel for the respondent has also taken me through the litigation between Harbant Kaur and Sadhu Singh. Copy of the order dated 9.8.1950 (Ex.D16) passed by the Magistrate Ist Class, Ropar reveals that the application of Harbant Kaur under Section 488 Cr.P.C. (125 Cr.P.C.) was allowed against Sadhu Singh and she was accepted to be the wife of Sadhu Singh and she was awarded maintenance. The order dated 26.7.1951 (Ex.D17) passed by the learned Sessions Judge, Ambala also clearly makes out that Harbant Kaur was having a daughter with her and the maintenance was awarded by the court to Harbant Kaur as well as her daughter. Thus, there is no reason to disbelieve that Baljinder Kaur is the daughter of Sadhu Singh. As regards the argument that Baljinder Kaur is not the daughter of Sadhu Singh, but is the daughter of Chinta Singh, it may be pertinent to mention that as per evidence, after the relations between Sadhu Singh and Harbant Kaur became strained, Harbant Kaur started living with Chinta Singh son of Jaimal Singh son of Jeon Singh resident of village Gharauan, Tehsil Sirhand and the gift deed dated 30.3.1970 highlights the fact that Harbant Kaur along with her daughter Baljinder Kaur had started living R.S.A. No. 1102 of 2004 -8- *** with Chinta Singh. Now coming to the other argument raised by the learned counsel for the plaintiff regarding validity of the Will dated 8.6.1981, it is observed that mere fact that the Will is a registered document would hardly be sufficient to establish that it was executed by Sadhu Singh of his free will and consent. It is shrouded by many suspicious circumstances. Sadhu Singh died in the year 1993, but the Will did not see the light of the day till 1999. Even the defendants No. 2 to 4 also did not mention if Sadhu Singh had executed any Will in their favour. In the Will, name of one of the grand son is recorded as Sita Singh, but he had no grand son in the name of Sita Singh. As a matter of fact, Mohinder Kaur herself never wanted to place reliance on the said Will. Had she been interested in the estate of Sadhu Singh, then she would have set up the Will in the previous litigation pending between the parties by moving an application for impleading her as party, but she continued waiting till the defendants No.2 to 4 lost in the case. It may further be noticed that the Will Ex.P1 does not refer to his deserted wife Harbant Kaur and daughter Baljinder Kaur, as such, the Will being shrouded by suspicious circumstances and the plaintiff having failed to dispel suspicion, the said Will is bound to be discarded. Mere fact that Harbant Kaur was deserted by Sadhu Singh or that she started living at the house of Chinta Singh would not disinherit the defendant No.1 from the property she may inherit by way of natural succession. Both the substantial questions of law framed by this Court are answered against the plaintiff- appellants. Since the suit had been malafidely designed on account of which, the defendant No.1- respondent has remained deprived of the fruits of the land which ultimately would have been borne by her if the defendant No.1 would have obtained the possession by way of decree passed on 7.8.1996. Resultantly, this appeal is dismissed with costs and the plaintiff-appellants are burdened with special costs of `1 lac. December 13, 2011 (A.N. Jindal) deepak Judge