R.S.A.No. 185 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 4.9.2009 R.S.A.No. 185 of 2007 (O&M) Tikka Singh and another ......Appellants Versus Paramjit Kaur and others .......Respondents R.S.A.No. 340 of 2007 (O&M) Major Singh and others ......Appellants Versus Tikka Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. M.L.Saggar, Sr.Advocate with Ms.Taranjeet Kaur, Advocate, for the appellants. (in RSA No.185 of 2007) Mr.S.S.Salar, Advocate for the appellant (in RSA No.340 of 2007) Mr. Sumeet Mahajan, Sr.Advocate with Mr.Amandeep Singh, Advocate for respondent No.1. **** R.S.A.No. 185 of 2007 (O&M) 2 SABINA, J. Vide this judgment, RSA Nos. 185 and 340 of 2007 would be disposed of as these have arisen out of same civil suit. Plaintiff Paramjit Kaur filed a suit for declaration, which was decreed by the Civil Judge (Jr.Divn.), Ludhiana vide judgment and decree dated 26.8.2003 to the effect that plaintiff and defendant No.1 Surjit Kaur being only legal heirs of deceased Babu Singh are legally entitled to inherit his property in equal shares. In appeal filed by defendant Nos. 2 and 3, the said judgment and decree were upheld by the Additional District Judge, Ludhiana vide judgment and decree dated 6.10.2006. Hence, the present appeals by defendants No.2 and 3 (RSA No.185 of 2007) and legal heirs of defendant No.1 (RSA No.340 of 2007). Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- 2. Brief facts of the plaintiff case that Babu Singh was son of Kishan Singh, was the original owner of the land measuring 78K-11M comprising in Khewat no.714, Khatauni No.742. He has also 1/8th share in the land measuring 41K-16M in Khewat No.723, Khatauni No.751, situated in village Sihar, Tehsil and District Ludhiana. Babu Singh had one wife namely Nihal Kaur. He had two daughters i.e. Plaintiff Paramjit Kaur and defendant No.1 Surjit Kaur. Babu Singh was R.S.A.No. 185 of 2007 (O&M) 3 married to Nihal Kaur and plaintiff Paramjit Kaur was born out of their wedlock in the year 1963. Surjit Kaur is his daughter from the first marriage. The plaintiff has been studying in Govt. High School Sihar, in 1979. Babu Singh was having an account no.2606 in Indian Overseas Bank, Sihar. Nihal Kaur was also a joint account no.1348 with the plaintiff in the said bank. The plaintiff has been shown as daughter of Babu Singh in these accounts. Babu Singh also performed her marriage with jagdev Singh. On 31.8.1987, defendant No.1 Surjit Kaur got a Will executed from Babu Singh, bequeathing his entire property in her favour. When Babu Singh came to know about it he revoked the said Will vide revocation deed dated 6.10.1987. On 15.1.1989, Babu Singh executed a Will in his sound disposing mind and bequeathed his entire property in favour of plaintiff Paramjit Kaur and defendant No.1 Surjit Kaur in equal shares. The Will dated 15.1.1989 is his last Will. Babu Singh died on 24.6.1989 leaving behind the plaintiff and defendant No.1 as his only legal heirs. The plaintiff and defendant No.1 are his only legal heirs and are owners in equal shares of the land belonging to Babu Singh as per the said Will. Defendant Nos.2 and 3 have no interest in the suit R.S.A.No. 185 of 2007 (O&M) 4 property and are threatening to interfere in peaceful possession of the plaintiff over the suit property. When they declined to accede to his request, plaintiff filed the suit through her attorney. 3. Notice of the suit was given to the defendants who came present and filed written statement. They raised preliminary objections that the suit is not maintainable because Paramjit Kaur is not the daughter of Babu Singh. The plaintiff is not in possession of any piece of land. She sought a mere suit for declaration without seeking her possession of the said land is not maintainable in the eyes of law. Jagdev Singh attorney has no authority to institute the present suit. On merits, it is stated that paramjit Kaur is not the daughter of Babu Singh. In fact she is daughter of Natha Singh, brother-in- law of Babu Singh. Nihal Kaur is the second wife of Babu Singh. Surjit Kaur is the daughter of Babu Singh from his first marriage with Tej Kaur Paramjit Kaur was not born to Nihal Kaur in 1963. In fact, Paramjit Kaur was born from the wedlock of Natha Singh and Sodhan. Nihal Kaur was at the age of 60 years at the time of birth of Paramjit Kaur and she against the wishes of her husband, she brought her up and got her educated at her home. Nihal Kaur herself could not give birth to any child. She died at the R.S.A.No. 185 of 2007 (O&M) 5 age of 85 years. He admitted it correct that plaintiff was studying in Government High School, Sihar and she has joint account with Babu Singh and Nihal Kaur. Babu Singh performed her marriage. However, she was not born to Nihal Kaur. Sodhal was mother of Paramjit Kaur. Nihal Kaur got the parentage of Paramjit Kaur entered in the record wrongly. Babu Singh has no love and affection with Paramjit Kaur. So, there was no occasion for him to execute a Will in favour of the plaintiff. The Will dated 15.1.1989 is not the last Will of Babu Singh as he has earlier executed a Will dated 31.8.1987 in favour of the defendant. So, there was no occasion for Babu Singh to upset the Will dated 31.8.1987. On 6.6.1989, Babu Singh executed and registered a Will. He was in a sound state of mind at that time. So the defendants are owners of the property left by Babu Singh as per the Will dated 6.6.1989. The entry in the revenue record has already been made as per the order dated 29.10.1991 of A.C.Grade-I. The plaintiff preferred an appeal and the said appeal was dismissed by the Collector on 5.6.1992. Other pleas were denied by the answering defendants.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff and defendant No.1 are R.S.A.No. 185 of 2007 (O&M) 6 the owners in possession of the property in dispute in equal shares? OPP 2. Whether the alleged Will dated 15.1.1989 in favour of the plaintiff and defendant No.1 is valid and legal. If so, what effect? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the alleged Will dated 6.6.1989 in favour of defendant Nos. 1 to 3 is valid. If so, what effect ? OPD 6. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. Plaintiff Paramjit Kaur filed a suit for declaration basing her claim on Will dated 15.1.1989. The case of the plaintiff is that Babu Singh had died on 24.6.1989 leaving behind the plaintiff and defendant No.1 Surjit Kaur as his only legal heirs. The case of the plaintiff further is that defendant No.1 Surjit Kaur had got a Will executed in her favour on 31.8.1987 but the same was revoked vide revocation deed dated 6.10.1987. Defendants No. 2 and 3, on the other hand, based their claim on Will dated 6.6.1989 alleged to have been executed by Babu R.S.A.No. 185 of 2007 (O&M) 7 Singh in their favour. Both the Courts below did not believe the Wills set up by both the parties. It was held that plaintiff- Paramjit Kaur was daughter of Babu Singh and hence, she was entitled to succeed the property of Babu Singh in equal shares with Surjit Kaur- defendant No.1. Will dated 15.1.1989 Ex.P-6 was not duly proved by the plaintiff. In fact, original of the said Will was not produced on record nor its loss could be duly established by the plaintiff so as to enable her to prove the same by leading secondary evidence. It has been noticed by the trial Court in its judgment that both the attesting witnesses to the Will dated 15.1.1989 had admitted in their cross- examination that Paramjit Kaur was present at the time of execution of the Will by Babu Singh. Therefore, the beneficiary had played a dominant role at the time of execution of the Will Ex.P-6. The said Will was not got registered by the executant although he remained alive till June, 1989. The attesting witnesses further admitted in their cross-examination that Babu Singh could not walk properly because of dislocation of the hip joint. In these circumstance, the Courts below rightly held that the Will dated 15.1.1989 Ex.P-6 was not a genuine document. Will dated 6.6.1989 set up by the defendants is Ex. D-1. Defendants No. 2 and 3 are the nephews of deceased Babu Singh. The defendants examined DW Kuldeep Rai, deed writer and defendants R.S.A.No. 185 of 2007 (O&M) 8 also examined DW Chuhar Singh and DW Jagdish Singh, who are the attesting witnesses of the Will, to prove the execution of the Will by Babu Singh in favour of Surjit Kaur, Tikka Singh and Ranjit Singh. Will Ex.D-1 is a registered document. Although registration of the Will goes a long way in establishing the genuineness of the Will yet the propounder of the Will is required to dispel the suspicious circumstances surrounding the Will. In the Will Ex.D-1, the execution and revocation of earlier Will has not been mentioned. The attesting witnesses to the Will admitted in their cross-examination that Babu Singh had disclosed to them that he had got the earlier Will revoked. However, the said fact is not mentioned in the Will Ex.D-1. It has been observed by the learned Additional District Judge in the impugned judgment that DW Jagdish Singh had admitted in his cross-examination that 10-15 days prior to the execution of Will, Babu Singh had sustained injuries as he had fallen while walking. However, no medical report of such treatment was placed on record. The fact that Babu Singh had suffered a fracture implied that he was bed ridden and unable to move. In these circumstances, the registration of the Will at Ludhiana instead of office of Sub Registrar Malaud made the Will a suspicious one. Moreover, the testator has not given any reason for denying his property to his daughter Paramjit Kaur. Learned Additional District Judge has further observed that there was no evidence on record to R.S.A.No. 185 of 2007 (O&M) 9 suggest that the deceased was being looked after by defendant Nos. 2 and 3. Hence, both the Courts below rightly held that the Will Ex.D-1 was not a genuine document. Plaintiff-Paramjit Kaur has alleged herself to be daughter of Babu Singh. DW Tikka Singh deposed that Babu Singh had only one daughter i.e. Surjit Kaur. The plaintiff, on the other hand, while appearing in the witness box, proved on record her birth certificate Ex.P-10, wherein she is described as daughter of Babu Singh and Nihal Kaur. She also produced on record the death certificate of Nihal Kaur Ex.P-9 and voter list Ex.P-11. She also proved on record invitation card of her marriage Ex.P-7, wherein Paramajit Kaur is described as daughter of Sardarni and Sardar Babu Singh. It has been observed by the learned Additional Judge in the impugned judgment that defendant No.2, in his cross examination admitted that the marriage card was got printed by Babu Singh at the time of marriage of Paramjit Kaur and her marriage was performed by Babu Singh. The plaintiff also proved on record her joint account with her mother Nihal Kaur. The said fact was admitted by the defendants in the written statement. It has further been observed by the learned Additional District Judge that the plaintiff had deposed that she had joint saving account with her father Babu Singh and the said fact was not questioned during her cross-examination. In these circumstances, the Courts below rightly came to the conclusion that Paramjit Kaur was daughter of Babu Singh. The R.S.A.No. 185 of 2007 (O&M) 10 finding of fact arrived at by the Courts below calls for no interference by this Court in appeals. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE September 04, 2009 anita