RSA No.1386 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1386 of 2006 Date of Decision:30.01.2009 Dyal Singh & anr. ....appellants Versus Meeko & anr. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr.Anupam Bhardwaj,Advocate for the appellants Mr.B.S.Jaswal, Advocate for respondent No.1. **** RAKESH KUMAR GARG J. This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit of the plaintiff-respondent for declaration to the effect that she is the co-sharer to the extent of 1/4th share of the share of Smt.Ishar Kaur d/o Hira Singh in the land as detailed in the headnote of the plaint and mutation No.952 regarding the inheritance of deceased Ishar Kaur sanctioned in the name of defendant is null and void and for joint possession and for permanent injunction restraining the defendant from alienating the suit land to anybody else, has been decreed. As per the averments made in the suit, originally Ishar Kaur d/o Hira Singh r/o village Bhinder, Tehsil Baba Bakala, was owner of the suit land. Ishar Kaur was married at village Cheemabath with Inder Singh. Out of that wedlock the plaintiff and the defendants were born and they are the legal heirs of Ishar Kaur. In her last days of life Ishar Kaur and the defendants were not in good terms with the plaintiff. She used to live with the plaintiff at village Bhinder and died there. She also performed her last RSA No.1386 of 2006 2 ceremonies. It was averred that Ishar Kaur died intestate and plaintiff became co-sharer to the extent of 1/4th share in her property. It was further stated that defendants are alleging that Ishar Kaur had executed a Will in their favour. The alleged Will is forged. It was further pleaded that the revenue authorities wrongly sanctioned mutation No.952 regarding the inheritance of Ishar Kaur on the basis of the alleged Will. The plaintiff is not bound by the order of the mutation. It was also pleaded that the plaintiff requested the defendants not to alienate the land and to admit the claim of the plaintiff but the defendants did not pay any heed to her request. Hence this suit. Upon notice the defendants contested the suit by filing written statement alleging that Ishar Kaur executed a valid Will dated 12.10.1993 in their favour and mutation regarding the inheritance of Ishar Kaur was legally sanctioned by revenue authorities in their favour. The other averments in the plaint were denied and dismissal of the suit was prayed for. On considering the evidence on record, the trial Court came to the conclusion that Will dated 12.10.1993 relied upon by the defendants was surrounded by suspicious circumstances and the defendants have failed to remove those suspicious circumstances. Therefore, the Will cannot be accepted and therefore by way of natural succession plaintiff has become co-sharer to the extent of 1/4th share of the land in dispute and thus, decreed the suit of the plaintiff-respondent. Appeal filed by the defendants against the aforesaid judgment and decree of the trial Court was dismissed by the Additional District Judge, Amritsar, vide impugned judgment and decree dated 23.02.2006. While dismissing the appeal, the Lower Appellate Court observed as under: “In this back drop, the appellants/defendants failed to dispel RSA No.1386 of 2006 3 the suspicious circumstances and the will in question appears to be unnatural dis position and in this view of the matter the trial Court has rightly excluded the will in question and held the respondent/plaintiff to be entitled to the share in the property on the basis of natural inheritance of Ishar Kaur. From the evidence, brought on record, it stands amply established that Ishar Kaur has 1/4thshare in the suit property and after her death respondent/plaintiff together with her brothers i.e. appellants/defendants inherited the property of their mother. Therefore, the lower Court has rightly held the respondent/plaintiff to be the owner/co- sharer to the extent of ¼ share and relief of injunction has rightly been granted to the respondent/plaintiff. Thus the findings on issues No. 1, 2 and 3 are hereby affirmed.” Still not satisfied, the defendants have filed the instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellants has vehemently argued that the exclusion of the plaintiff-respondent from inheritance of Ishar Kaur in the Will Ex.D-1 stands fully explained as she had already been given land measuring 39 kanal 11 marlas by the testator. It was further contended that mere presence of one or the other beneficiary at the time of execution of the Will per se is not a suspicious circumstance and therefore the judgment and decrees of the Courts below are liable to be set aside and the suit of the plaintiff is liable to be dismissed. On the other hand, learned counsel for the respondent has vehemently argued that the Courts below on appreciation of evidence have recorded a concurrent finding of fact that Will in dispute is full of suspicious circumstances and the appellants have failed to remove those suspicious circumstances and therefore the same was rightly discarded by the Courts RSA No.1386 of 2006 4 below and the appeal is liable to be dismissed as no substantial question of law arises in this appeal. I have heard learned counsel for the parties and perused the record of the appeal. Admittedly, Ishar Kaur was original owner of the suit property and the plaintiff and the defendants are children of Ishar Kaur. The plaintiff had claimed succession being natural heir and the defendants/appellants claimed inheritance on the basis of the Will dated 12.10.1993 allegedly executed by Ishar Kaur. Thus, the entire controversy revolves around the fact that whether Ishar Kaur had executed any valid Will in favour of the defendants/appellants or not. The Lower Appellate Court considered the following reasons to discard the Will: The plaintiff denied the execution of the Will by Ishar Kaur. On the other hand, the defendants have proved the Will Ex. D-1. Undisputedly, Ishar Kaur died on 21.12.1993. The Will is dated 12.10.1993. The Will was got scribed in Tehsil Complex Baba Bakala from regular deed writer. Yet, the Will was not got registered in spite of the fact that the parties came to execute the Will in Teshil Complex. In the Will, the only reason for exclusion of the plaintiff-respondent is that sufficient property was given to her as dowry at the time of her marriage but no evidence has been placed on record to prove this fact. It was also mentioned that 5 killas of land was given to her as gift deed but there is no detail of this land. Beneficiaries of the Will were also present at the time of execution of the Will. Although, the Will is not to be discarded only for this. But when this fact is considered along with other attending circumstances, the presence of beneficiaries at the time of execution of Will also becomes one of the suspicious circumstances. The age of RSA No.1386 of 2006 5 the executant was stated to be about 75 years and she died within two and a half month of the execution of the Will. The defendants/appellants have failed to remove all these suspicious circumstances. Keeping in view all the aforesaid circumstances, the Courts below have recorded a concurrent finding of fact that Will relied upon by the appellants was surrounded by suspicious circumstances and the appellants have failed to remove those suspicious circumstances and therefore the Will cannot be accepted. The learned counsel for the appellants was unable to show any perversity in the aforesaid findings of the Courts below. Thus, I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 30.01.2009 neenu