RSA No. 3308 of 2007 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 3308 of 2007 Date of decision: September 9,2008 Charanjit Singh ..Appellant. Versus Bhag Singh and another ..Respondents Coram: Hon'ble Mr.Justice Rakesh Kumar Garg Present: Mr. R.S.Chauhan, Advocate for the appellant. ... Rakesh Kumar Garg,J. Unsuccessful plaintiff has directed the present appeal against the judgment and decrees of the courts below whereby her suit for declaration to the effect that she is owner of the suit land and for consequential relief of joint possession has been dismissed. As per the case set up by the plaintiff, Sibu her real brother, was owner in possession of the suit property. The said Sibu died on 4.6.1995 issueless and intestate and is succeeded by plaintiff being his only legal heir and thus has become owner of the properties in dispute. The defendants have no right, title or interest in the suit properties. It is further the case of the plaintiff that taking benefit of simplicity and illiteracy of Sibu and in the absence of the plaintiff, the defendants in connivance with each other have got the mutated properties in dispute sanctioned in their name on the basis of alleged sale deed dated 17.8.1994 in respect of 22 Kanals 14 Marlas of land in favour of defendant No.1 and regarding 16 marlas of land in favour of defendant No.2 on the basis of alleged will dated 25.10.1989 alleged to have been executed by deceased Sibu in favour of the defendants. It has been alleged by the plaintiff that the sale deed and the will are forged, false and fabricated documents and the same is without consideration also as the same might have been prepared by the defendant No.1 by playing fraud upon the deceased to deprive the plaintiff from inheriting RSA No. 3308 of 2007 2 the property of the deceased. The suit has been contested by the defendants and it has been submitted that Sibu was looked after and served by defendant No.2 and in lieu of the services rendered to him, executed a valid will dated 25.10.1089 while he was in a sound disposing mind. Avtar Singh, defendant No.2 became owner in possession of the same being legal heir of Sibu. Sibu had also sold the land measuring 22 Kanals 14 Marlas to defendant No.1 vide registered sale deed dated 17.8.1994 for a valuable consideration of Rs.1,99,950/-, which Sibu received prior to the execution of the sale deed at village Mehtabpur at the time of bargain and handed over the possession of the land and mutation to this effect was rightly sanctioned. After hearing learned counsel for the parties, the trial Court vide impugned judgment and decree dismissed the suit of the plaintiff. Feeling aggrieved, she filed an appeal before the District Judge, Hoshiarpur who dismissed the said appeal vide impugned judgment and decree dated 4.5.2007. While dismissing the appeal, the District Judge observed as under:- “The above evidence brought on the file by the defendants has not been rebutted with any cogent and convincing evidence by the plaintiff. The solitary statement of the plaintiff is not sufficient to come to the conclusion if the Will has been forged and fabricated. The plaintiff has nowhere stated if the Will Ex.D8 does not bear the thumb impression of the deceased at the time of its execution or at the time of its registration before the Sub Registrar. Had the thumb impression of the deceased not been on the Will, the plaintiff could have examined the document expert to disprove the same, which he did not. Rather from the admission made by the plaintiff herself it has come on the record that she is permanent resident of England and is residing there for the last more than 30 years. She seldom comes to India. Even when her brother died, she did not RSA No. 3308 of 2007 3 bother to perform his last rites. She came about 1-1/2 years after the death of her brother. On the contrary, the defendants have led sufficient oral and documentary evidence to prove that the deceased Sibu was residing in the house of defendants and he was looked after by them. He was having joint ration card and voter list along with the defendants. Avtar Singh defendant No.2, in whose favour the deceased executed the Will was in India and had been rendering services along with his father and other family members to the deceased. Avtar Singh defendant No.2 had gone abroad only in the year 1992. If the plaintiff did not bother to look after her brother nor she resided with him and if the deceased executed the Will in favour of defendant No.2, who was related to him as the grandfather of Sibu and great grand father of defendant Bhag Singh was the same person, there is nothing wrong it. Jagir Kaur plaintiff as PW1 admitted in her cross-examination as correct that Sibu died on 4.6.1995 and she received information about it on telephone and she had gone abroad one month earlier. When she went abroad, at that time her brother was all right and was fully conscious and he used to road about. She came to India for condolences 10 months after the death of her brother and then she replied that she came back to India after 1-1/2 years of death of her brother. It is correct that the last rites of her brother were performed by Bhag, again said, she did not know who did it because she was abroad. When she came back to India after the death of her brother, she did not inquire from anybody as to who performed the last rites of her brother and who spent money on it. She did not inquire from anybody as to who immersed the last remains of her brother in Kiratpur because none came to her and for condolences she was staying in village Mehmoodpur. She did not remember if the ration card of Sibu was joint with her She did not know that RSA No. 3308 of 2007 4 before going abroad if she obtained any ration card in her favour. Sibu was never issued any vote in the village of her in-laws. She was issued vote in her in laws village when she remained in India for ten years. There is substance in the stand taken up by the learned counsel for the respondent that if a lady like plaintiff, who is a permanent resident of United Kingdom came to India even after 1- 1/2 years of death of her brother, what love and affection she could have for the deceased and the question of her looking after the deceased does not arise. The only suspicious circumstances pointed out by the learned counsel for the appellant is that the real sister like plaintiff has been disinherited by the deceased in place of defendant No.2, who is not class I heir of the deceased, rather he is distantly related to the deceased. To meet this objection, I would like to refer to the case titled as Sadasivan Vs. K. Doraswamy 1996(1)Apex Court Journal page 1(SC), in which it was held that divesting of close relations is not a suspicious circumstances as divesting of close relations is the purpose of execution of Will. In case titled as Sumitra Devi Kochhar Vs. The State 199(3) Civil Court Cases page 84 (Delhi) it was held that mere exclusion of daughters from inheritance does not create doubt regarding genuineness of Will. Further, in case Mangat Ram Vs. Dina Nath, 1997(1) Civil Court Cases page 570 (P&H) it was observed that a validly executed Will which is proved by proper evidence before the Court cannot be ignored merely on the ground that some Class-I heirs are excluded.” Still not satisfied, the present appeal has been filed by the plaintiff in this Court challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the RSA No. 3308 of 2007 5 courts below have misread and misinterpreted the evidence on record which has vitiated the findings of the courts below. Learned counsel has further argued that the courts below have not considered the fact that the appellant who is the real sister of the plaintiff- deceased Sibu has been deprived of the property by the alleged Will which proves that the same is surrounded by suspicious circumstances and is liable to be discarded. Learned counsel has also argued that the alleged sale deed is an act of fraud on the part of respondents as the due execution of the sale deed and passing of consideration has not been proved and therefore, the judgment and decrees of the courts below are liable to be set aside. I have heard learned counsel for the appellant and find no merit in the contentions raised by the counsel for the appellant. Both the courts below have recorded a concurrent finding of fact that the execution of alleged Will and sale deed have been proved and the evidence brought on the record by defendants has not been rebutted with any cogent and convincing evidence by the appellant. It has also been held by the courts below that there is no evidence to prove that the Will has been forged and fabricated or is the result of fraud. The solitary statement of the appellant is not sufficient to come to the conclusion in favour of the appellant. For the reasons recorded above,I find no merit in the appeal. No substantial question of law arises in the appeal. Dismissed. September 9, 2008 (RAKESH KUMAR GARG) nk JUDGE