IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH RSA No. 3662 of 2011 (O&M) Date of decision: November 18, 2011 Rashpal Singh and others .. Appellants Vs. Jagjit Singh alias Jeet Singh and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Ms. G.K. Mann, Advocate for the appellants. Mr. Nakul Sharma, Advocate for the caveator/ respondents. A.N. Jindal, J Having lost before both the courts, the defendants- appellants i.e. sons and widow of Mohinder Singh son of Kishan Singh, have filed this regular second appeal. The inheritance of Kishan Singh is in dispute who died on 25.4.1981 and his wife Sham Kaur pre-deceased him. For convenience, the pedigree table is reproduced as under :- Narain Singh ! Kishan Singh (died on 25.4.1981) ! Sham Kaur (died on 14.1.1980) Jagjit Singh Mohinder Bhajan Surinder Kaur (died alias Jeet Singh Singh daughter a year Singh (son) (son) (son) back) Plaintiff Def. No.1 Def. No.2 Satnam Singh Husband, Def. No.6 ____________________________________ Jasbir Kaur Balwinder Joni Def. No.3 Def. Nos.4 & 5. The plaintiff has claimed that he along with his brother Bhajan Singh had been residing in London with their father Kishan Singh, who died while staying with them in London. They had been serving him. Kishan Singh was the owner of 1/4th share of the land measuring 61 kanals 9 marlas therefore, on his death, he is the owner to the extent of 1/4th share in the suit land on the basis of the natural succession and 1/8th share in the land measuring 5 kanals comprised in K/K No.293/369 and Khasra No. 21//25/2 RSA No. 3662 of 2011 -2- *** (5-0) and land measuring 45 kanals 10 marlas being ½ share of the land measuring 91 kanals 1 marlas, land measuring 5 marlas being 5/24 share in the land measuring 1 kanal 5 marlas as fully detailed in the heading of the plaint. Similarly, he had claimed ownership of the house to the extent of 1/8th share in three houses marked as 'ABCD' in the heading of the plaint shown red in the site plan annexures A1, A2 and A3 appended to the plaint. He had also sought permanent injunction restraining the defendants not to alienate and interfere in his peaceful possession over the property in dispute. The defendants- appellants contested the cause by filing written statement wherein they took some preliminary objections, inter alia, that the plaintiff has no cause of action to file the suit; the suit is barred by limitation; the suit having been filed through Kirpal Kaur, who is not his lawful attorney, is not maintainable. Though they had admitted the ownership of Kishan Singh deceased over the agricultural land, yet they claimed that the property shown in Annexures A2 and A3 is self acquired property of the defendant No.1 Mohinder Singh ( since deceased now represented through legal heirs). The property as shown in Annexure A-1 was owned by Kishan Singh but he had sold the same to defendants No.7 and 8, more than twenty years ago, therefore, the plaintiff has no right, title or interest in the said property as having been sold by Kishan Singh during his life time. That apart, while denying the possession of the plaintiff over any part of the property, it was pleaded that Kishan Singh had executed a Will dated 2.6.1979 in favour of the defendant No.1, therefore, they are owners of the suit land on the basis of the ownership. Replication was also filed. From the pleadings of the parties, the trial court framed the following issues :- 1. Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP 2. Whether Kishan Singh the predecessor in interest of plaintiff and defendant No.1 executed a Will dated 2.6.1979 in favour of defendant No.1?OPD 3. If issue No.1 is proved, Will dated 2.6.1979 is result of fraud, is representation, concealment of facts, if so is effect?OPP RSA No. 3662 of 2011 -3- *** 4. Whether Kirpal Kaur is duly constituted attorney of the plaintiff?OPD 5. Whether the plaintiff is entitled to separate possession by way of partition of the house, Haveli and Kothi?OPP 6. Whether Kishan Singh, had transferred the house to defendant No.7 and 8 as alleged in written statement in para No.7?OPD 7. Whether the Haveli and Kothi are exclusive property of defendant No.1?OPD 8. Whether the suit is time barred?OPD 9. Whether the plaintiff has got no locus standi to file the present suit?OPD 10. Relief. In order to discharge the onus to prove the issues, the plaintiff examined Kirpal Kaur (PW1), Jasvir Kaur (PW2), Jagjit Singh (PW3), Gurwant Singh (PW4) and closed his evidence by tendering into evidence copy of the mutation order Ex.P11, mutation sheet Ex.P12, death certificate Ex.P13 and power of attorney Ex.P14. Per countra, the defendants examined Gurbachan Kaur (DW1), Mohan Singh (re-written as DW1), Som Nath (DW2) and Mohinder Singh himself appeared in the witness box as DW3. On scrutiny of the evidence, the trial court while discarding the Will, decreed the suit of the plaintiff qua agricultural land as fully described in head note 'A' of the plaint, whereas, the suit with regard to the remaining properties was dismissed. Feeling aggrieved, two appeals were filed, one by Jagjit Singh for setting aside the judgment qua the property other than the agricultural land and the other appeal was filed by Mohinder Singh for dismissal of the suit as a whole. The first appellate court also affirmed the findings returned by the trial court and dismissed both the appeals. Though Jagjit Singh has not preferred any appeal, yet, the legal heirs of Mohinder Singh namely Rashpal Singh, Tarlochan Singh and Balwindeer Singh sons and Tarsem Kaur RSA No. 3662 of 2011 -4- *** widow have filed this regular second appeal. The substantial questions of law for determination in this case are as under :- 1. Whether unregistered Will dated 2.6.1979 scribed by the Clerk of an advocate was the result of free will and consent of Kishan Singh? 2. Whether the Will can be ignored and what would be the share of the plaintiff, if Will dated 2.6.1979 is treated as valid? 3. Whether the impugned judgment and decree suffers from any perversity or illegality? While stressing to have verdict qua the aforesaid substantial questions of law in their favour, the learned counsel for the appellants contended that Kishan Singh had three sons namely Jagjit Singh (plaintiff), Bhajan Singh (defendant No.2) and Mohinder Singh (defendant No.1) and a daughter Surinder Kaur. Sham Kaur wife of Kishan Singh predeceased him, whereas Surinder Kaur was alive. As per the custom prevailing in the Jat community, it remains the wish of the father that the property should go to the sons, therefore, Kishan Singh having considered that his two sons are well settled in London he bestowed the entire property upon Mohinder Singh by way of Will dated 2.6.1979 while coming to India. There is no reason to disbelieve such Will. To the contrary, learned counsel for the respondents has thrown much dust over the Will while urging that the Will is shrouded by many suspicious circumstances and as such cannot be said to be executed by Kishan Singh of his free will and consent. Having considered the contentions, this unregistered Will dated 2.6.1979 apparently appears to be not genuine document executed by Kishan Singh of his free will and consent. The suspicious circumstances which shroud the Will are that Mohinder Singh (a beneficiary of the Will) took active part in the execution of the Will. Som Nath (DW2) had admitted during cross examination that Will was scribed at the instance of Mohinder Singh. Similarly, Mohan Singh who is closely related to RSA No. 3662 of 2011 -5- *** Mohinder Singh has stated that Mohinder Singh had thumb marked the Will after executing the same and they did not visit the office of the Tehsildar for registration of the same and no statement was recorded at the time of sanctioning of the mutation. Mohan Singh has stated that wife of Mohinder Sigh is the niece of his wife. Mohinder Singh while appearing in the witness box has also stated that he had accompanied his father at the time of execution of the Will and Som Nath had scribed the Will at his instance. Though, Surinder Kaur daughter of Kishan Singh was alive at that time. No reasons have been assigned in the Will for ignoring her. The Will is unregistered. Though the Will was scribed by the Clerk of an advocate but no effort has been made to get it registered even with the Notary Public or with the Tehsildar. The Will had been executed while ignoring his two sons and a daughter particularly when the executant had never lived with the beneficiary of the Will and it is highly doubtful that Kishan Singh would come to India for executing an unregistered Will. It is admitted case of the defendant that the testator was living in England and he died in England. Mohinder Singh also admits that at the time of death of Kishan Singh, his sister was alive but no provisions for her maintenance or her well being have been made in the Will. Although, it is mentioned in the Will that testator had already adjusted his two sons and a daughter that is why he does not want to give them anything from his property. But, no reasons disinheriting his wife and daughter are recorded. The Will was allegedly executed by the testator on 2.6.1979, whereas, the testator had died on 25.4.1981 but the Will did not see the light of the day till the year 1994, when for the first time, it was presented before the Revenue Authorities for sanctioning of the mutation. It would also be pertinent to mention here that, even according to the plaintiff, the testator had sold the house to the defendants No.7 and 8, then no inference could be drawn that the testator did not know about the manner of transferring of the property. If he could transfer the house in favour of defendants No.7 and 8, then he could also get the Will registered in favour of the defendant No.1 or transfer the entire land in his favour by other means. As such, this court also assents to the concurrent findings returned by the courts below that the Will dated 2.6.1979 allegedly executed RSA No. 3662 of 2011 -6- *** by Kishan Singh in favour of Mohinder Singh is shrouded by many suspicious circumstances which the defendant No.1 has failed to explain. As regards the consideration of the evidence on the record, the courts below have duly considered the entire evidence, therefore, the impugned judgment cannot be said to be illegal or perverse in any manner. The technical defects that Jagjit Singh filed a suit through Kirpal Kaur who was not his power of attorney at the time of filing of the suit has been rectified later on. In any case, since Jagjit Singh himself appeared in the court to ratify the acts as done by Kirpal Kaur, therefore, the acts done by Kirpal Kaur stood ratified. No further argument has been raised qua this point also. Since the plaintiff himself has admitted that his father had no other property except the agricultural land and one house in the village and the said house was sold by him, therefore, the relief qua house shown in the title at B and in the absence of any evidence of ownership qua the other houses, both the courts below have rightly declined the relief qua the houses as shown in the head note from point B to D. Consequently, all the substantial questions of law as framed by this Court are answered against the appellants. No grounds to interfere. Dismissed. November 18, 2011 (A.N. Jindal) deepak Judge