IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.1156 of 1989 Date of decision: 3rd December, 2010 Teja Singh and others … Appellants Versus Tejo and others … Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S. Gill, Senior Advocate with Ms. Neha Sharma, Advocate for the appellants. None for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Banta Singh died about 9/10 years before filing of the suit by plaintiff-respondents. He was survived by Dhan Kaur widow-defendant No.4 to the suit; three sons namely Teja Singh, Mohinder Singh and Ajit Singh-defendants No.1 to 3 respectively to the suit; and three daughters namely Banso and Mindo-defendants No.5 and 6 to the suit and Tejo- plaintiff to the suit. Present appeal has been filed by defendants to the suit. Plaintiff-respondent claimed that after the death of Banta Singh, all the legal heirs became owners in equal share, i.e. 1/7th share each. She further stated that her father had not executed any valid Will with a sound disposing mind. It was further stated that the defendant-appellants had forged the Will, which was wrong and the natural succession should take place. In the suit so filed, the defendant-appellants had not caused appearance and they were proceeded against ex-parte. The trial Court Regular Second Appeal No.1156 of 1989 held that since the plaintiff had claimed that the Will was forged and fabricated, she should have proved this fact and unless it is proved, the mutation granted by the Tehsildar, Phillour, relying upon the Will dated 11th December, 1972 could not be set aside. According to the grounds of appeal, Banta Singh had executed the Will in England. The plaintiff-respondent challenged dismissal of the suit by filing an appeal. The appellate Court accepted the appeal and held as under: “6. From the evidence on record, the fact that the plaintiff was a daughter of Banta Singh is proved. By way of natural succession the plaintiff had a right to 1/7th share. The defendants who got mutation sanctioned in their favour had preferred to remain away from the Court. It is always for the propounder of the Will to prove its genuineness and also to establish that the testator executed the same with a sound disposing mind. It is difficult to appreciate the approach of the learned Sub Judge that it was for the plaintiff to bring evidence and to establish that the Will, on the basis of which mutation was sanctioned, was forged document. The mutation proceedings are summary in its nature meant for fiscal purposes only, but any findings recorded by the Revenue Officer does not finally decide the question of succession. Mutation also does not create any title. The plaintiff was under no obligation to lead evidence and show that the Will referred to in the mutation proceedings was in fact forged document. The succession is always automatic and since the plaintiff was one of the natural heirs, she had succeeded to the same unless the Will referred to in the mutation was validly proved. The passage of time from the date of sanction of the mutation will not effect the rights of the plaintiff. A co-sharer unless ousted, is deemed to be in joint possession of the land.” 2 Regular Second Appeal No.1156 of 1989 I have perused the evidence of the plaintiff-respondent Tejo, who appeared as PW-1 and Sohan Singh PW-2. Both of them stated that Banta Singh had executed no Will. Mohan Lal Patwari was examined as CW-1. He stated that the mutation on the basis of Will was granted in favour of the three sons of Banta Singh in equal share, but he had not brought the original Will in the Court. No written statement was filed asserting that Banta Singh had made a Will. If the breach of natural succession has to occur, the beneficiary on the basis of the Will has to make an averment to this effect. By virtue of mutation proceedings executed by the revenue authorities, the natural succession cannot be kept in abeyance. It was a specific case of the plaintiff and her witnesses that no Will was executed. This fact was not refuted. Mr.H.S. Gill, Senior Advocate assisted by Ms. Neha Sharma, Advocate, by way of an application, has formulated following questions as substantial questions of law for consideration of this Court: i) Whether the suit filed by the plaintiff/respondent Tejo was barred on the principle of estoppel? ii) Whether the suit filed on 15.5.1986 was barred by limitation in view of the fact that Banta Singh had died on 16.8.1973 and mutation in favour of appellant was sanctioned on 31.7.1976? iii) Whether a fake report was obtained regarding the service of summons on Teja Singh appellant and publication of notice in unknown paper ‘Sarvodya Sansar’ is not proper service? iv) Whether the Will in question was validly executed and was liable to be upheld particularly, in view of the fact 3 Regular Second Appeal No.1156 of 1989 that its execution was not denied and it was for the plaintiff to prove alleged suspicious circumstances? Mr. Gill has relied upon a judgment rendered by a Single Bench of this Court in ‘Smt. Bhagwanti v. Smt. Sita Devi and others’ 1983 Punjab Law Reporter 490 to contend that if the plaintiff pleads ignorance of Will and has not specifically denied execution of the same, and the witnesses who had adduced their evidence are not cross- examined, the Will cannot be ignored. On facts, this judgment is not attracted. In the present case, it was specifically stated in the plaint that no valid Will was executed. The plaintiff, appearing as PW-1, specifically stated as under: “My father had made no Will” Sohan Singh PW-2 also stated: “Banta Singh died 8/9 years ago. He had made no Will regarding his land.” This categoric assertion of witnesses has gone unchallenged. Mr. Gill has further relied upon another judgment of a Single Bench of this Court rendered in ‘Kuldip Rai v. Sharan Singh and others’ 1989 PLJ 227 to contend that the Court has to record its satisfaction that substituted service was effected upon the appellant- defendants. The ex-parte order had attained finality. It was never challenged. Even when appellant-defendants appeared in the appeal, they had not questioned the ex-parte order. 4 Regular Second Appeal No.1156 of 1989 Mr.Gill has further relied upon ‘B.L. Sreedhar and others v. K.M. Munireddy (Dead) and others’ AIR 2003 Supreme Court 578 to contend that principle of estoppel shall operate against the plaintiff, as mutation was granted in the year 1976 and the civil suit was filed on 15th May, 1986. A perusal of head-note of the suit reveals that the same was filed for possession as owner of 1/7th share of the land, which was within 12 years of the death of Banta Singh. It cannot be said that any estoppel shall operate against the plaintiff-respondent. Even though, there is no evidence on the record to show as to when the plaintiff-respondent learnt or came to know regarding the mutation proceedings. On facts, the substantial questions of law formulated by counsel for the appellant do not arise. Hence, no interference is warranted in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE December 3, 2010 rps 5