RSA No. 413 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 413 of 2009 (O&M) Date of Decision: January 24,2011 Waryam Singh ...........Appellant Versus Prem Singh and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.R.S. Chauhan, Advocate for the Appellant. ** Sabina, J. Plaintiffs filed a suit for declaration to the effect that the suit property be declared to be co-parcernary property of the parties and the revenue entries showing defendants No. 1 to 3 as exclusive owner of the property were wrong and were liable to be corrected in favour of the plaintiffs. The case of the plaintiffs in brief was that Hirda Ram son of Mutaba had inherited the suit property. Hirda Ram had four sons namely, Dharam Singh, Rushia Ram, Ram Singh and Diwan Singh. Plaintiffs and defendants were heirs of Rushia Ram. Plaintiff no.1 and defendants No. 1 to 3 were the sons of Rushia Ram,whereas, plaintiffs No. 2 to 4 and 9 were RSA No. 413 of 2011 (O&M) 2 the heirs of Ananat Ram, pre-deceased son of Rushia Ram. Defendant No. 10 was widow of Rushia Ram. The suit property was co-parcenary property of the parties. Rushia Ram was cultivating the suit land. Rushia Ram had also purchased share of Dharam Singh out of the income of the ancestral land. Defendants No. 1 to 8 and 10 in their written statements averred that the suit land was not co-parcenary property of the parties. Rushia Ram was owner of the suit land which was his self-acquired property. Rushia Ram had executed Will dated 20.1.1998 in favour of defendants No. 1 to 3. On the basis of the same, the said defendants had become owners in possession of the entire property of Rushia Ram. Defendant No. 9 was proceeded ex-parte. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs have the locus standi to file the present suit?OPP 2.Whether the suit land is joint Hindu Coparcenary property as alleged?OPP 3.Whether the entries in the revenue record are wrong as prayed for and are liable to be corrected?OPP 4.Whether the plaintiffs are entitled to the relief of declaration as prayed for ?OPP 5.Relief.” Vide judgment and decree dated 21.1.2004, the trial Court decreed the suit of the plaintiffs to the effect that the suit property was Joint Hindu Family/Coparcenary property and plaintiff No.1 had 12/77th share in RSA No. 413 of 2011 (O&M) 3 the suit land. Plaintiffs No. 2 to 4 and defendant No. 9 had joint interest to the extent of 12/77th share equally. Defendants No. 1 to 3 and defendant No. 10 had interest to the extent of 12/77th share each. Defendants No. 4 to 8 held share to the extent of 1/77th each. Aggrieved by the said judgment and decree, defendants No. 1 to 8 preferred an appeal. Vide judgment and decree dated 2.3.2010, the appeal was partly allowed and decree was modified to the extent that the Exhibit D1 was a legal and valid Will executed by Rushia Ram. Plaintiff-Prem Singh had 1/7th share, plaintiffs 2 to 4 and defendant No. 9 had 1/7th share in the suit property. Kala Devi widow of deceased had 1/7th share in the suit property. Tarsem Singh, Waryam Singh and Balwan Singh had 4/21th share each in the suit property. Aggrieved by the said judgment and decree, defendants No. 2 and 3 have filed the present appeal. After hearing the learned counsel for the appellants, I am of the opinion that the present appeal deserves dismissal. The First Appellate Court has upheld the Will executed by Rushia Ram in favour of defendants No. 1 to 3. The question that requires consideration in this appeal is as to whether the suit property is co- parcenary property in the hands of the parties. A perusal of para 17 of the judgment of the learned Additional District Judge reveals that there was no serious dispute qua the nature of land being ancestral in the hands of Rushia Ram inherited by him from his father Hirda Ram. Thus, the dispute remains only qua the nature of property which Rushia Ram had purchased from his brother-Dharam Singh. The case of the plaintiffs is that the share of Dharam Singh had been purchased by Rushia Ram out of the funds of the Joint Hindu Family RSA No. 413 of 2011 (O&M) 4 Property and the suit property was also liable to be treated as Joint Hindu Family/Co-parcenary property of the parties. To support this plea, plaintiff- Prem Singh appeared in the witness box. Defendants, on the other hand, failed to establish that Rushia Ram had any other source of income out of which he had purchased the share of Dharam Singh. In these circumstances, the Courts below rightly held that the suit property was ancestral property in the hands of Rsuhia Ram. Rushia Ram had executed Will dated 20.1.1998 in favour of defendants No. 1 to 3. Rushia Ram died on 31.10.2000. The genuineness of the Will is not under challenge as the same has been held to be validly executed in favour of the appellants. Thus, in case, the suit property has been partitioned during life time of Rushia Ram, it would have been divided into seven equal shares, i.e. Rushia Ram, his widow and five sons. Rushia Ram could validly execute the Will qua his share (1/7th) in the suit property. In these circumstances, defendants No. 1 to 3 had 4/21th share in the suit property, whereas, plaintiff-Prem Singh had 1/7th share in the suit property. The legal heirs of Ananat Ram had 1/7th share in the suit property and Kala Devi, widow of deceased had 1/7th share int the suit property. The First Appellate Court had, thus, rightly modified the decree of the trial Court. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge January 24, 2011 arya