R.S.A.No. 1716 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1716 of 2007 (O&M) Date of decision: 4.9.2009 The Nurpur Sethan Cooperative Agricultural Services Society Ltd. ......Appellant Versus Gurvinder Kaur and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. V.K.Khunger, Advocate, for the appellant. Mr.Sandeep Khunger, Advocate, for respondent No.1. Mr.J.S.Sandhu, AAG, Punjab for respondent No.2. None for respondent No.3. **** SABINA, J. Gurvinder Kaur-plaintiff-respondent No.1 filed a suit for declaration, which was decreed by the Additional Civil Judge (Sr.Divn.) Ferozepur vide judgment and decree dated 5.4.2004. In appeal filed by defendant No.2, the said judgment and decree were R.S.A.No. 1716 of 2007 (O&M) 2 upheld by the Additional District Judge, Ferozepur vide judgment and decree dated 1.2.2007. Hence, the present appeal by defendant No.2. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. The bone of contention between the parties is land measuring 12 kanals 2 marlas situated at village Nurpur Sethan, Tehsil and District Ferozepur, which was part of the total land as detailed and described in head note of the plaint. The land as detailed and described in head note of the plaint was originally owned by Bachittar Singh. He had four sons, namely Avtar Singh, Kirpal Singh, Malkiat Singh and Harjit Singh. On 20.2.1993, he executed a Will in favour of his three sons, namely Avtar Singh, Kirpal Singh, Malkiat Singh and his daughter-in- law Gurvinder Kaur i.e. respondent-plaintiff (wife of his fourth son Harjit Singh) in equal share. Aforesaid Harjit Singh was not allowed to inherit any share in the property left by him as he was stated to an affluent child and was not under his control. He died on 20.1.1994 and mutation of his inheritance bearing number 1719 (copy Ex.P-2) was sanctioned in favour of the legatees as mentioned in the Will Ex.PA on the basis of an order dated 21.8.1998 (copy Ex.P-1) passed by Assistant Collector Ist Grade R.S.A.No. 1716 of 2007 (O&M) 3 Ferozepur. 3. Aforesaid Harjit Singh was working as salesman with the appellant Nurpur Sethan Cooperative Agricultural Service Society (hereinafter referred to as Appellant Agricultural Service Society). He was stated to have raised some loan and had also embezzled funds of the Agricultural Service Society, upon where arbitration awards Ex.D-1 to Ex.D-12 were passed against him during the year 1997 for recovery of Rs.12,80,000/-. To effect the recovery of the said amounts, the land in dispute as inherited by wife of aforesaid Harjit Singh under the impugned Will was attached vide a rapat number 10 dated 10.9.1999 Ex.P-8 at the instance of the appellant Agricultural Service Society. It was resented by the respondent-plaintiff, who instituted a suit for declaration challenging the legality and validity of the said rapat No.10 terming the same to be illegal, null and void and not binding upon her in as much as no arbitration award was ever passed against her and the property inherited by her from her father-in-law could not be attached for recovery of the amounts, if any, due towards her husband, who was excluded to inherit any share in the property left by her father-in- law. Relief of mandatory injunction was also claimed R.S.A.No. 1716 of 2007 (O&M) 4 for deletion of the said entry regarding attachment in the revenue record and also for restraining the appellant Agricultural Service Society from effecting any recovery from her or from the land in dispute. Said suit was filed after service of the notice dated 14.4.2000 (copy Ex.P-3) upon respondent No.2 and after service of another notice under Section 79 of the Punjab Cooperative Societies Act (Copy Ex.P-4) upon the appellant as well as respondent No.3. 4. Upon notice, the appellant Agricultural Service Society appeared and filed written statement taking up the stand that the impugned Will dated 20.2.1993 is a forged and fabricated document which was created to avoid payment of all the dues of the appellant Agricultural Service Society. According to them, there are numerous awards against aforesaid Harjit Singh and the Society is to recover the amounts on the basis of those awards. Harjit Singh was to inherit the property from his father Bachittar Singh but they had got created the forged and fabricated Will to avoid payment of the dues of the society. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the R.S.A.No. 1716 of 2007 (O&M) 5 declaration as prayed for? OPP 2. Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for ? OPP 3. Whether deceased Bachittar Singh executed a legal and valid Will in favour of Avter Singh, Kirpal Singh, Malkiat Singh and the plaintiff? OPP 4. Whether a sum of Rs.12,80,000/- was recoverable from Harjit Singh by defendant No.2 Society? OPD 5. Whether mutation of inheritance of deceased Bachittar Singh is wrong and therefore liable to be set aside? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Plaintiff Gurvinder Kaur had filed a suit for declaration that she was co-sharer of the suit property to the extent of 1/4th share without any encumbrance. Originally the land in question was owned by Bachittar Singh. He executed a Will dated 20.2.1993 in favour of his three sons namely Avtar Singh, Kirpal Singh and Malkiat Singh and his daughter-in-law Gurvinder Kaur in equal shares. Bachittar Singh died on 22.1.1994 and mutation of his inheritance was sanctioned on the basis of the Will on 21.8.1998 (Ex.P-1). The R.S.A.No. 1716 of 2007 (O&M) 6 share of Gurvinder Kaur was, however, attached in terms of the order passed on 11.8.1999 by Assistant Collector, Cooperative Societies and in terms of the same, the land qua the share of the plaintiff was attached vide Rapat No.10 dated 10.9.1999. Hence, the plaintiff has filed the suit. Plaintiff in order to prove due execution of the Will in her favour has examined PW-4 Kesar Singh, one of the attesting witnesses of the Will. The said witness duly proved the execution of the Will Ex.PA executed by Bachittar Singh in favour of his three sons and the plaintiff in equal shares. Since Harjit Singh was not the owner of the suit land, and the same was, in fact, owned by the plaintiff by virtue of Will Ex.PA, both the Courts below rightly held that the same could not be attached in execution of the arbitration awards dated 17.7.1997 and 21.7.1997 Ex.D-1 to Ex.D-12 passed against Harjit Singh, husband of the plaintiff. Harjit Singh has no concern with the suit land. Thus, both the Courts below rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 04, 2009 anita