RSA No.3033 of 1984 (O&M ) -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3033 of 1984 (O&M) Date of decision:21.03.2011. Kabul Singh ...Appellant Versus Smt. Bhanwar Bai and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. D.S.Bali, Senior Advocate, with Ms. Neha Mann, Advocate, for the appellant. Mr. K.S.Cheema, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. Man Bai (since deceased) filed a suit against her daughters to challenge a collusive decree dated 01.06.1972 in respect of the land in dispute on the ground that the defendants had played a fraud upon her. She had alleged that she was in possession of the land measuring 93 Kanals 14 Marlas, out of which 2-½ Killas were gifted to her nephew Kabul Singh. The defendants denied the allegation of fraud and alleged that property in dispute was in the hands of their brother, namely, Jagmal who was last male holder of the property in dispute before her mother Man Bai and in furtherance of his Will, the property was transferred by Man Bai in their favour by virtue of that consent decree. The parties went to trial on the following issues: - “1. Whether the decree styled as Bhanwar Bai Versus Man Bai dated 01.06.1972 is null and void and liable to be set aside as alleged? 2. Whether the plaintiff is owner in possession of the suit land? 3. Whether the suit is within time? RSA No.3033 of 1984 (O&M ) -2- ***** 4. Whether the plaintiff is estopped from filing the suit? 5. Whether the decree and judgment dated 01.06.1972 is final and res judicata between the parties? 6. Whether the plaintiff has waived his right to sue the present suit? 7. Relief.” The learned Trial Court found issues Nos.2 and 3 in favour of the plaintiff to the effect that she was found to be the owner in possession of the land in dispute and the suit was within limitation, but other issues were decided against her about the validity of the collusive decree dated 01.06.1972. During the pendency of appeal, Man Bai died and was represented by Kabul Singh S/o Manphul Singh on the basis of a Will in his favour dated 06.07.1979 which is alleged to have been executed by Man Bai. It is pertinent to mention that the impugned decree is dated 01.06.1972 which was challenged by filing Civil Suit No.337 of 15.12.1975 by Man Bai herself who alleged to have executed the Will in favour of Kabul Singh on 06.07.1979. After filing the Civil Appeal No.183 dated 17.10.1977, Man Bai died on 24.08.1982. The learned First Appellate Court upheld the finding of the learned Trial Court on issue No.1 holding the decree dated 01.06.1972 to be valid and also dismissed the suit of the plaintiff on the ground of limitation by reversing the finding on issue No.3. During the pendency of this appeal, the appellant filed CM No.4629-C of 2007 for placing on record the substantial questions of law involved in this appeal which was ordered to be heard with the main appeal on 28.05.2007. He also filed CM No.4772-C of 2007 for staying the alienation of the land in dispute during the pendency of the appeal in which notice was issued and it was ordered to be heard with the main appeal and the alienation during the pendency of the appeal was ordered to abide the final judgment and decree. The defendants also filed CM No.7424-C of 2008 for exemption from filing certificate copy of the judgment and decree dated 26.04.1998 passed in Civil Suit No.266 of 1988 and death certificates dated 03.06.2008 and 31.12.1997 (Annexures A-1 and A-2). Application is allowed as prayed for. RSA No.3033 of 1984 (O&M ) -3- ***** The defendants filed another CM No.7425-C of 2008 for placing on record the judgments and decrees dated 26.04.1998 and 22.10.2002 passed by the Civil Judge (Jr. Division), Mohindergarh and Additional District Judge, Narnaul respectively and copies of the death certificates Annexures A-1 and A-2. Application is allowed as prayed for. They also filed CM No.7426-C of 2008 for impleading legal representatives of Rattan Bai and Bhagwani Bai, who allegedly expired on 03.01.2002 and 22.12.1997 respectively. The application is allowed subject to all just exceptions. CM No.7427-C of 2008 has been filed by the defendants under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure, 1908 [for short “CPC”] to lead additional evidence by way of producing on record judgment and decree dated 26.04.1998 passed in Civil Suit No.266 of 1988 and judgment and decree dated 22.10.2002 passed by the Additional District Judge, Narnaul in Civil Appeal No.187 of 1998-99. Notice in the application was issued to which reply was filed. For the reasons mentioned in the application by which the defendants wanted to place on record the judgment and decree of the Courts below which have a significant bearing on the decision of this case and are per se admissible, the application is allowed and the aforesaid judgments and decrees are taken on record as additional evidence. Learned counsel for the respondents has submitted that Man Bai died during the pendency of the first appeal in the year 1982 and was represented by Kabul Singh on the basis of a registered Will dated 06.07.1979 which was allegedly executed by Man Bai in his favour of the land in dispute even after the filing of Civil Suit by her. It is further submitted that the said Will was subject matter of Civil Suit No.266 of 1988 titled as `Smt. Bhagwani (died) through legal representatives and another Vs. Gulab Singh and others' in which learned Trial Court, vide its judgment and decree dated 26.04.1988, held that “in view of the above discussion it is held that the propounder of the will failed to dispel the suspicious circumstances surrounding the will and as such will Ex.DW3/A does not inspire confidence and is held to be only a paper transaction got prepared through a conspiracy hatched by the defendant No.2 to deprive the plaintiffs of their right of succession to the estate of deceased Man Bai”. This finding of the learned Trial Court was upheld by the learned RSA No.3033 of 1984 (O&M ) -4- ***** First Appellate Court vide its judgment and decree dated 22.10.2002 in which it was observed that “from the aforesaid discussion, it is clear that the defendant No.1 has failed to dispel all the suspicious circumstances surrounding the Will the copy of which is Ex.DW3/A, therefore, the Will has rightly been held by the learned Lower Court to be ingenuine”. Learned counsel for the respondents has also submitted that the judgment and decree dated 22.10.2002 passed by the learned Additional District Judge, Narnaul has become final which has not been set aside. In view of the aforesaid facts which have been brought on record, it is argued that after the Will having been declared to be illegal, Kabul Singh lost his right to intermeddle with the property of Man Bai on the basis of Will dated 06.07.1979 and ceases to be the legal representative of Man Bai because even otherwise he was not in the line of succession in case of intestate death of Man Bai and in that circumstance, the property would have devolved upon her daughters with whom she had been litigating. Thus, in the absence of Man Bai, even if the decree dated 01.06.1972 is excluded for the time being, the property would naturally devolve upon the respondents being the real daughters of Man Bai. Looking from any angle, I do not find any merit in the present appeal nor do I find any substantial question of law involved in it as envisaged under Section 100 of CPC for the purpose of adjudication. Hence, the present appeal is hereby dismissed though without any order as to costs. March 21, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE