RSA No.1150 of 1984 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1150 of 1984 Date of decision:22.03.2011. Sohan Singh ...Appellant Versus Bhaju and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. M.S.Kang, Advocate, for the appellant. Ms. Simran Chahal, Advocate, for respondent Nos.3 to 5. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against judgment and decree of both the Courts below by which his suit for declaration with consequential relief of permanent injunction and in the alternative for joint possession, has been dismissed. The dispute in this case is with regard to the estate of Mohan Singh S/o Gulzar Singh who died as a bachelor. One Gulzar Singh had one daughter called Bhajan Kaur and three sons, namely, Bhaju, Mohan Singh and Sohan Singh. Mohan Singh bequeathed property in dispute by way of registered Will dated 03.09.1980 in favour of respondent Nos.3 to 5, namely, Lehmber Singh and Sarbjit Singh sons of Bikkar Singh and Kashmira Singh alias Sheera son of Mohan Singh son of Beant Singh, residents of village Kotha, Tehsil Nakodar. Sohan Singh, brother of Mohan Singh filed the present suit alleging that Mohan Singh had died intestate and upon his death, he alongwith defendant Nos.1 and 2, namely, his brother Bhaju and sister Bhajan Kaur, have succeeded to his estate, whereas defendant Nos.3 to 5 have illegally got a mutation sanctioned in their favour in connivance with the revenue authorities and on inquiry, it was RSA No.1150 of 1984 -2- ****** found that Mohan Singh alleged to have executed the Will in their favour. In the written statement, naturally the defendant Nos.3 to 5 set up the registered Will dated 03.09.1980 to claim the estate of Mohan Singh. On the pleadings of the parties, the following issues were framed: - “i) Whether the plaintiffs are related to Mohan Singh deceased as alleged and have got locus standi to file the present suit?OPP. ii) Whether the plaint is properly valued for the purposes of court fees and jurisdiction?OPP. iii) Whether the plaintiff is estopped to file the present suit by his acts and conduct as alleged in the written statement?OPD. iv) Whether the plaintiff has got no locus standi to file the present suit?OPD. v) Whether the description of the property in suit is incorrect? If so, its effect?OPD. vi) Whether Mohan Singh deceased executed a valid Will in favour of the defendants? If so, its effect?OPD. vii) Whether if issue No.6 is proved, whether the Will in question is the result of fraud, mis- representation and undue influence as alleged?OPP. viii) Whether the plaintiff is entitled to the decree of declaration or joint possession?OPP. ix) Relief.” Both the Courts below concurrently upheld the validity of Will (Ex.D2) which was sought to be challenged by the plaintiff on the ground that before the execution of the Will itself on 03.09.1980, Mohan Singh had died on 18.06.1980 and entry to that effect was made on 20.06.1980. The learned First Appellate Court has found that the plaintiff had filed the suit on 09.02.1981 in which it is not urged that the Will in question is brought into existence after the RSA No.1150 of 1984 -3- ****** death of the Testator Mohan Singh. It was also not mentioned that the Will has been got registered by producing somebody else before the Sub Registrar. The written statement to the original plaint was filed on 13.03.1981 in which it was clearly mentioned that Mohan Singh had executed the legal and valid registered Will in their favour on the basis of which mutation was sanctioned. The plaintiff filed replication on 02.08.1981, but in the replication also it was not pleaded that Mohan Singh was not alive on 03.09.1980 or the Will has been got executed or registered by a fictitious person. The plaintiff also amended the plaint on 23.07.1981, but even in the amended plaint this fact was not brought that Mohan Singh had died on 18.06.1980 or was not alive on 03.09.1980 when the Will was executed. The Court had also found that the plaintiff has failed to compare the thumb impressions of the Testator on the impugned Will with his admitted thumb impressions. It was also found established that the deceased was living in village Kang Khurd, whereas the plaintiff was living with his other brother in village Bharoli, Tehsil Nawanshahar which is at a distance of 50 miles from which it was observed that the Testator was not living with his brother at the time of his death whose last rites were even performed by the defendant Nos.3 to 5. Both the Courts below have found that the death certificate of Mohan Singh cannot be relied upon simply for the reason that there were overwriting in it which were not initialed. Thus, the plea of death of Mohan Singh earlier to the execution of the Will is only concocted and has rightly been rejected by the Courts below as it was not pleaded by the plaintiff despite the fact that Will was set up in the written statement and, thereafter, the plaintiff had filed replication and also the amended plaint. It is really strange that a brother filing the suit is not knowing the date of his death which he could plead in the plaint, otherwise it would have been his foremost stand to be taken in the plaint to dislodge the case set up by the defendants as the plaintiff himself said that he came to know on inquiry that the mutation has been sanctioned in favour of defendnat Nos.3 to 5 on the basis of a Will. Learned counsel for the appellant has argued that the defendant Nos.3 to 5 has failed to prove their relationship with Mohan Singh by way of RSA No.1150 of 1984 -4- ****** pedigree table, therefore, there was no occasion for Mohan Singh to have excluded his own brothers and sister from the property which was given to the strangers. I am not impressed with this argument raised by learned counsel for the appellant because it has come in evidence that the deceased Testator was living with the defendant Nos.3 to 5 in their village which was 50 miles away from the village of the plaintiff and even the last rites were also performed by them. It appears that since the Testator was a bachelor and was not being looked after well by his own brothers, therefore, he had taken shelter with defendant Nos.3 to 5 who were looking after him in the hour of his need and out of the service rendered by them he executed the registered Will in their favour, which otherwise has not been challenged on the ground that the Will is not signed or attested by the attesting witnesses. In view of the above discussion, I do not find any question of law much-less substantial involved in this appeal as envisaged under Section 100 of the Code of Civil Procedure, 1908 and as such, the same is hereby dismissed. In the given facts and circumstances of the case, the parties are directed to bear their own costs. March 22, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE