Regular Second Appeal No. 4801 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 4801 of 2009 Date of decision : August 31, 2010 Mahinder Singh ....Appellant versus Suba Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Amit Jain, Advocate, for the appellant L.N. Mittal, J. (Oral) Mahinder Singh plaintiff having failed in both the courts below has filed the instant second appeal. Ujjagar Singh was common ancestor of the parties. He had three sons i.e. Mahinder Singh plaintiff, Tarlok Singh (father of defendants no. 1 and 2) and Joginder Singh (father of defendants no. 3 and 4). Ujjagar Singh executed registered Will dated 17.4.1989 regarding 31 kanals 14 marlas land in suit in favour of the defendants bequeathing part thereof in favour of defendants no. 1 and 2 and remaining part in favour of defendants no. 3 and 4. Ujjagar Singh also had 112 kanals 7 marlas more land which was bequeathed by him vide registered Will dated 20.11.2001 almost equally in favour of two sons each of his three sons. The said Will and the Regular Second Appeal No. 4801 of 2009 -2- land covered thereby is not under dispute in the instant suit. The plaintiff alleged that 156 kanals 12 marlas land was allotted to Arjan Singh father of Ujjagar Singh in village Badopal in lieu of land left in Pakistan. The said land was inherited by his two sons Ujjagar Singh and Budha Singh to the extent of 1/3rd share each and by two sons of his third son Sohan Singh to the extent of 1/3rd share. Ujjagar Singh sold the land of his share in village Badopal and purchased the suit land and other land in village Sadhanwas. The plaintiff, thus, alleged that the suit land was ancestral in the hands of Ujjagar Singh and therefore, he was not competent to bequeath the suit land in favour of the defendants vide registered Will dated 17.4.1989. Accordingly, the plaintiff challenged said Will dated 17.4.1989 and sought declaration that he is owner in possession of 1/3rd share in the suit land measuring 31 kanals 14 marlas and registered Will dated 17.4.1989 is illegal and null and void and is liable to be set aside. Defendants contested the suit and denied plaint allegations. It was denied that the suit land was ancestral in the hands of Ujjagar Singh. It was also denied that Ujjagar Singh was not competent to execute the Will dated 17.4.1989 regarding the suit land. It was also pleaded that Ujjagar Singh distributed 112 kanals 7 marlas land among sons of his three sons and retained the suit land measuring 31 kanals 14 marlas for himself and therefore, he was competent to bequeath the same. Various other pleas were also raised. Learned Additional Civil Judge (Senior Division), Tohana vide judgment and decree dated 21.12.2007 dismissed the plaintiff's suit. First appeal preferred by the plaintiff stands dismissed by learned Additional Regular Second Appeal No. 4801 of 2009 -3- District Judge, Fatehabad vide judgment and decree dated 10.6.2009. Feeling aggrieved, the plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant at considerable length and perused the case file. It is the plaintiff's case that land measuring 112 kanals 7 marlas (which is not subject matter of the case) was also ancestral land in the hands of the plaintiff's father Ujjagar Singh. However, Will dated 20.11.2001 thereof in favour of grandsons of Ujjagar Singh has not been challenged on the assumption that the said land was distributed equally among the sons of his three sons. However, the very fact that the said Will has not been challenged would depict that Ujjagar Singh was competent to execute the Will of the said land and was also, therefore, competent to execute the Will of the suit land. In addition to the aforesaid, it is plaintiff's own case that land measuring 112 kanals 7 marlas was distributed equally among the sons of three sons of Ujjagar Singh. He had even given the said land for cultivation during his life time. It would depict that the suit land measuring 31 kanals 14 marlas was, therefore, retained by Ujjagar Singh as his own share in the total land. In this view of the matter also, Ujjagar Singh was competent to bequeath away the suit land vide Will dated 17.4.1989. Learned counsel for the appellant vehemently contended that land in village Badopal was ancestral land. Ujjagar Singh sold the same and purchased the suit land and other land in village Sadhanwas and therefore, the said land was also ancestral. However, the land purchased by Regular Second Appeal No. 4801 of 2009 -4- Ujjagar Singh vide sale deeds dated 11.7.1958, Ex. PW4/D, PW4/E, PW4/F has not been directly connected with the suit land. Sale deeds Ex. PW4/A, PW4/B, PW4/C dated 10.6.1958 of land of village Badopal sold by Ujjagar Singh have also not been connected with the land which he allegedly got from his father. There is concurrent finding by both the courts below that suit land is not proved to be ancestral in the hands of Ujjagar Singh. The said finding is based on appreciation of evidence and therefore, does not warrant interference in the second appeal because the said finding is not shown to be perverse or illegal. It may be added that even if for the same of arguments, it is assumed that the suit land measuring 31 kanals 14 marlas and the other land measuring 112 kanals 7 marlas was ancestral in the hands of Ujjagar Singh, even then impugned Will dated 17.4.1989 relating to suit land measuring 31 kanals 14 marlas only cannot be said to be illegal or null and void. It cannot be said that Ujjagar Singh was not competent to bequeath the suit land to his own grandsons. On the other hand, as noticed hereinbefore, the suit land had been retained by Ujjagar Singh as his own share while distributing other 112 kanals 7 marlas among the sons of his three sons. Learned counsel for the appellant also contended that Will dated 17.4.1989 has not been proved. It was contended that Joginder Singh DW6 is one of the attesting witnesses of the Will dated 17.4.1989 but he has not stated about the necessary ingredients of execution and attestation of the Will by two witnesses as required by section 63 of the Indian Succession Act, 1925 read with section 68 of the Evidence Act. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in Regular Second Appeal No. 4801 of 2009 -5- Pentakota Satyanarayana & Ors. Versus Pentakota Seetharatnam & Ors, 2005(4) RCR (Civil) 615. I have carefully considered the aforesaid contention but find no merit therein. Firstly, Will dated 17.4.1989 is registered one; secondly, one of the attesting witnesses of the said Will namely Joginder Singh DW6 has been examined; thirdly and most importantly, execution of the said Will by Ujjagar Singh was not even disputed by the plaintiff-appellant in the plaint. On the contrary, the plaintiff also himself stated in the plaint that Ujjagar Singh had executed the said Will. The plaintiff, however, challenged the said Will on the ground that Ujjagar Singh was not competent to execute the Will. However, execution of the Will by Ujjagar Singh was not even disputed in the plaint and was rather specifically pleaded and admitted in the plaint and therefore, no evidence was required to prove the said Will because admission is the best proof of a fact. Learned counsel for the appellant contended that plaintiff being co-sharer in the suit land could maintain simple suit for declaration even without being in possession of the suit land and suit is not barred by section 34 of the Specific Relief Act. In support of this contention, reliance has been placed on two judgments of this Court i.e. Lal Singh versus Ajit Singh and another, 2008(3) RCR (Civil) 650 and Jai Narain versus Smt. Sona Devi, 2006(2) RCR (Civil) 212. However, in view of my discussion in the preceding paragraphs, I am not adjudicating upon this contention because the plaintiff-appellant otherwise cannot succeed in the appeal. For the reasons aforesaid, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for Regular Second Appeal No. 4801 of 2009 -6- determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) August 31, 2010 Judge 'dalbir'