RSA No.1806 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1806 of 2011 (O&M) Date of Decision: 05.12.2011 Harsimran Kaur ...Appellant Vs. Sukhchain Singh & Ors. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL --- Present: Mr.S.S.Salar, Advocate, for the appellant. --- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- A.N.Jindal, J. This judgment shall dispose of RSA Nos. 1806 & 1292 of 2011 both titled as Harsimran Kaur Vs. Sukhchain Singh & Ors.; and Harsimran Kaur Vs. Gurinder Singh & Ors., respectively, as these arise from a common judgment and common question of law and facts are involved in both these appeals. Trial court vide judgment dated 16.08.2008 decreed the suit of the plaintiff/appellant Harsimran Kaur (hereinafter referred as RSA No.1806 of 2011 2 the plaintiff) against the defendants for declaration and permanent injunction to the effect that she is owner in joint possession of 1/5th share in the suit land. However, on appeals preferred by the defendants the first appellate court vide judgment dated 29.11.2010 while setting aside the judgment and decree passed by the trial court accepted the appeals and dismissed her suit. Col.Ajaib Singh had three sons namely Sukhchain Singh, Gurdev Singh and Harminder Singh. Harminder Singh predeceased Col.Ajaib Singh. Plaintiff is the daughter of Harminder Singh. Col.Ajaib Singh had two daughters namely Rajinder Kaur and Malwinder Kaur, who are defendant Nos. 4 and 5, (proforma defendants). Col. Ajaib Singh had allegedly executed a Will four years prior to his death in the year 1997 in favour of his two sons namely Sukhchain Singh and Gurdev Singh, defendants Nos.1 and 2. Harsimran Kaur being the daughter of Harminder Singh (son of predeceased Ajaib Singh) has challenged the said Will and has sought inheritance of 1/5th share of Col. Ajaib Singh on the basis of natural succession. Defendants Nos. 1 and 2 contested the suit, whereas defendants Nos. 3 to 5 did not put in appearance in the court and were proceeded against ex parte. Defendants Nos. 1 and 2 claimed to have obtained the property on the basis of the Will Ex.D.1 and gift deeds (Exs. D.2 to D.5) executed by Col. Ajaib Singh in their favour out of love and affection. RSA No.1806 of 2011 3 From the pleadings of the parties, trial court framed the following issues:- 1. Whether the plaintiff is owner to the extent of 1/5th share out of the suit property as alleged??OPP 2. Whether the plaintiff is entitled to declaration as prayed for? OPP 2-A Whether Col.Ajaib Singh executed gift deeds and Will on 7.7.1997? OPD 2-B Whether the gift deeds and Will are the result of misrepresentation and undue influence? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 4. Whether the plaintiff has got no cause of action to file the present suit? OPD 5. Whether the suit in the present form is not maintainable?OPD 6. Whether this Court has got no jurisdiction to hear and try the present suit? OPD 7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 8. Relief. Plaintiff in support of her case appeared as PW 1 and tendered some documents in evidence. To the contrary, the defendants examined Baljeet Singh RSA No.1806 of 2011 4 (DW 1), Tejbir Singh (DW 2), Dan Singh Cashier-cum-Clerk, State Bank of India, Ladda Kothi, Sangrur (DW 3), Harbaksh Singh Mander, Handwriting and Finger Prints Expert (DW 4), Nagar Singh (DW 5), Gurnam Singh Singh (DW 6), Ashok Kumar Ahlmad, SDM, Sangrur (again marked as DW 6), Jatinder Kumar, record Keeper (DW 8), Sukhchain Singh (DW 9) and Kuldeep Singh (renumbered as DW 9). The trial court while discarding the Will ExD.1 held the plaintiff to be owner in possession of 1/5th share on the basis of natural succession. Feeling aggrieved Sukhchain Singh and Gurdev Singh filed one appeal, whereas Gurinder Singh defendant also filed another appeal. First appellate court after hearing the parties vide judgment dated 29.11.2010 accepted the appeal preferred by Sukhchain Singh and Gurdev Singh, set aside the judgment dated 16.8.2008 passed by the trial court, whereas appeal filed by Gurinder Singh was also accepted. Arguments heard. Record perused. Undisputed facts are that Col.Ajaib Singh died on 25.08.2001. He had three sons and two daughters. Plaintiff is the daughter of Harminder Singh predeceased son of Col.Ajaib Singh. There was litigation between the parties regarding the mutation Nos. 1435 relating to the inheritance of Harminder Singh. The whereabouts of Harminder Singh were not available, therefore, Harsimran Kaur had got sanctioned mutation in her favour. Col. Ajaib RSA No.1806 of 2011 5 Singh had filed appeal before the Collector, Sangrur against the mutation Nos. 1435 and order dated 14.7.1997 but the same was dismissed on 26.11.1997 and Col.Ajaib Singh filed revision against the order of Assistant Collector, Sangrur dated 14.7.97 (Ex. PA) and against the order dated 26.11.1997 (Ex.D.16) of the Collector Sangrur, before the Additional Commissioner (Appeals), Patiala and the revision was also dismissed by the Additional Commissioner (Appeals), Patiala on 4.8.1999, copy of which is Ex.PB. Further there is one order so passed by the Judicial Magistrate First Class, Moga dated 5.9.2001 Ex.PC regarding release of the attachment of the land of absconder Harminder Singh. This order also refers to the mutation of inheritance of Harminder Singh having been sanctioned in favour of Harsimran Kaur. It is also in evidence that after the mutation of inheritance having been sanctioned in favour of Harsimran Kaur, she sold some part of the property to defendants Nos. 1 and 2 which has been admitted by DW 1 Kuldeep Singh. All this goes to show that Col. Ajaib Singh had no cordial relations with Harsimran Kaur. That may be the cause that Col.Ajaib Singh executed Will Ex.D.1 on 7.7.1997 bequeathing his entire property in favour of his sons Sukhchain Singh and Gurdev Singh (defendants Nos. 1 and 2). The Will is registered one having been duly proved by the witnesses. Col.Ajaib Singh was not a lay man but having reached the status of Colonel, he cannot be said to have executed the Will under undue influence or pressure. There is no evidence that he was sick RSA No.1806 of 2011 6 or infirm. Minor discrepancies being pointed out in the Will itself do not falsify the same in view of his strained relations with the plaintiff. Baljit Singh DW 1 has categorically stated that the Will was duly executed at the instance of Colonel Ajaib Singh. In any case, if some allegations of fraud or misrepresentation are levelled by a party the onus lies upon him to prove the same. Similar observations were made by this court in Zailo Vs. Ram Saran & Ors. 1996 (3) Punjab Law Reporter 747. The said judgment is applicable to the facts of the present case on all fours. Will Ex.D.1 not only bears the signatures but also the photographs of the testator. Will also mentions the reasons for ignoring Harsimran Kaur as Harminder Singh got married with Shinderpal Kaur against his wishes and thereafter he left his wife and started living with another girl Gurjinder Kaur. It is also mentioned in the Will that he did not want to give anything to Harsimran Kaur as well as her mother Shinderpal Kaur because they had involved him in litigation and as such he was harassed and mentally disturbed at their hands. Aspirations of Col.Ajaib Singh to confer rights of property upon defendants Nos. 1 and 2 are also indicated. Gift deeds dated 17.5.1999, 20.5.1999, 1.6.1999 and 8.6.1996 Ex.D.2 to Ex.D.5 have been executed in favour of defendants Nos. 1 and 2. Not only this, Col. Ajaib Singh had also transferred some of the property to Gurdev Singh & Gurinder Singh through his attorney Bhupinder Singh. It is also not proved that the property in the hands of Col. Ajaib Singh RSA No.1806 of 2011 7 was ancestral, coparcenary and joint Hindu family property. Thus, he being the absolute owner of the property could transfer the same in favour of any one he liked. All this goes to show that first appellate court had appreciated the evidence in right perspective. No question of law much less substantial question of law arises in this appeal for determination by this court. Both the appeals are devoid of any merit and the same are dismissed in limine. (A.N.Jindal) 05.12.2011 Judge rp