RSA No. 3327 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3327 of 2011 Date of decision 11.8.2011. Smt.Sheela Devi ...... Appellant. versus Jitender and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Mr. Rohit Singh, Advocate for the appellant. K.C.PURI . J. Appellant-Sheela Devi has challenged the judgment and decree dated 19.5.2011 passed by Shri R.N.Bharati, learned Additional District Judge, Jind vide which the appeal preferred by plaintiffs against the judgment and decree dated 10.9.2010 passed by Shri Sundeep Singh, Additional Civil Judge (Senior Division), Jind accepted and the judgment and decree passed by the trial Court stood set aside. 2. Briefly stated the case of the plaintiffs is that their father Sewa Singh was married to Nirmala Devi and plaintiff No.1 and defendants No. 2 and 3 were born out of their wedlock. After the death of first wife, he RSA No. 3327 of 2011 2 married defendant No.1 and from the second marriage plaintiff No.2 was born. Therefore interest of plaintiffs No. 1 and 2 is joint. Therefore, plaintiff No. 1 preferred the suit being guardian of plaintiffs whereas interest of defendants is adverse to that of the plaintiffs. Sewa Singh had died on 31.12.2005 and before death, he voluntarily executed Will on 1.6.2005 which was registered on 3.6.2005 while in sound disposing mind and was having good health. The Will was read over and explained to him by the deed writer and he put his thumb impressions on the Will in the presence of the witnesses and the deed writer and the witnesses also thumb marked the Will in the presence of the Sub Registrar, Meham. As per the Will, entire property has been bequeathed in favour of the plaintiffs. Whereas defendant set No.1 have not been given any share out of the property, as sufficient cash and jewellery had already been given to them. Thus, plaintiffs became owner in possession of the entire property in equal share. However, defendants No. 1 to 3 have started asserting their rights in the properties and her bent upon withdrawing the amount lying with the bank and also in the insurance policies. The defendants were requested to acknowledge the right of the plaintiffs but to no avail. Hence, the suit. 3. On put to notice, defendant No. 1 filed separate written statement on appearance while defendants No.2 and 3 filed separate written statement. Defendants No. 4 and 5 also filed separate written statements. 4. In the written statement filed by defendant No.1 preliminary objections regarding maintainability, cause of action, locus standi, estoppel and jurisdiction were taken up. 5. On merits, the relationship between parties has been admitted. RSA No. 3327 of 2011 3 Although, it is claimed that plaintiff No.1 is step brother of plaintiff No. 2 and therefore, has adverse interest. Factum of death of Sewa singh has also been admitted. However, execution of Will in favour of the plaintiffs has been denied. Rather it is claimed that Sewa Singh had executed Will dated 28.4.2005 in favour of defendant No.1. Thus the Will dated 3.6.2005 is fake and forged. It is claimed that Sewa Singh used to sign the documents and therefore, his thumb impressions on the Will dated 3.6.2005 creates doubts about its validity. It is also claimed that answering defendants being nominee has become owner in possession of all insurance policies and bank account left by Sewa Singh. Further, she has become owner in possession of 1/3 share in agricultural land and also owner in possession of the plots in respect of which the Will dated 28.4.2005 was executed. Thus the suit of the plaintiffs deserves to be dismissed. It has also been claimed that the plaintiffs have not produced the original Will and have only produced the certified copy of the same, which also creates doubt about the genuineness of the Will dated 3.6.2005. 6. In the joint written statement of defendants No. 2 and 3, inter alia it is claimed that Will of Sewa Singh was never shown to the defendants. However, it if the Will is not proved in accordance with law and in that event defendants are entitled to 1/5th share in the entire property owned by Sewa Singh. 7. In the written statement filed by defendant No.4, it has been claimed that Sheela Devi defendant being wife of Sewa Singh is also nominee in all the policies and the insurance companies has no knowledge about the Will. The death claim is under consideration and would be RSA No. 3327 of 2011 4 decided only in accordance with the decision of the Court. 8. Similarly defendant No.5 State Bank of Patiala has claimed that it has been unnecessarily dragged into litigation. Sheela Devi wife of Sewa Singh is joint holder of the account and the account can be operated by either of the two survivors and therefore, Sheela Devi has every right to operate the account even after the death of Sewa Singh. 9. From the pleadings of parties, following issues were framed. 1. Whether late Sewa Singh executed a valid Will dated 1.6.2005 and registered on 3.6.2005, whereby he bequeathed the property in dispute in favour of the plaintiffs? OPP 2. If issue No.1 is proved in affirmative, whether plaintiffs deserve to be granted a declaration to the effect that they are owners and in joint possession over the immovable property detailed in head note of the plaint and are also entitled to other movable property detailed in the last portion of the head note of the same? OPP 3. Whether late Sewa Singh executed a Will dated 28.4.2005, if so, its effect? OPD-1 4. Whether suit is not maintainable in the present form?OPD 5. Whether plaintiffs do not have any cause of action? OPD 6. Whether plaintiffs have no locus standi to file and maintain the present suit? OPD 7. Whether civil court at Jind has no territorial jurisdiction in the matter? OPD 8. Whether suit has not been properly valued for the purposes of court fee and jurisdiction? OPD 9. Whether suit is bad for mis-joinder of defendants No. 4 RSA No. 3327 of 2011 5 and 5? OPD 10. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties and appraisal of the evidence dismissed the suit of the plaintiff vide judgment and decree dated 10.9.2010. 8. Feeling dissatisfied with the aforesaid judgment and decree dated 10.9.2010, the plaintiffs preferred the appeal before the First Appellate Court, who vide judgment and decree dated 19.5.2011 accepted the appeal partly holding that all the legal heirs of Sewa Singh are entitled to 1/5th share each. 9. Feeling dissatisfied with the aforesaid judgment and decreed dated 19.5.2011, the instant regular appeal has been preferred by the defendants/appellants. 10. The appellant in paragraph No.6 of the grounds of appeals has mentioned that following substantial questions of law have arisen :- i) Whether grave and manifest injustice has been caused to the defendant-appellant ? ii) Whether the judgments passed by the learned courts below are outcome of misappropriation and misreading of the evidence available on record ? Iii) Whether the learned lower courts below have exceeded their jurisdiction while deciding the suit ? iv) Whether the execution of Will dated 28.04.2005 can be declared as nul,l and void in the absence of proper issue ? v) Whether the plaintiff is entitled for the relief which he never claimed ? I have heard learned counsel for the parties and have gone through the records of the case with his able assistance. RSA No. 3327 of 2011 6 12. Learned counsel for the appellant has submitted that no issue regarding execution of Will dated 28.4.2005 was framed. In the absence of the same finding regarding the said issue in favour of appellant cannot be accepted. Both the Courts below have mis- interpreted and mis-read the evidence available on the file. The Courts below have exceeded their jurisdiction. The case of the plaintiffs is that they have become owner of the suit property on account of the Will dated 1.6.2005 registered on 3.6.2005. Both the Courts below have given a categoric finding that said Will is not proved. The Ist Appellate Court could not have declared that each of the legal heir is entitled to 1/5th share of the property held by Sewa Singh. Since the plaintiffs are held not able to prove the Will dated 1.6.2005 and as such the suit of the plaintiffs should have been dismissed. No decree for declaration could have been passed. The Ist Appellate Court has exceeded its jurisdiction in passing the decree for declaration. 13. I have carefully considered the submission made by counsel for the appellant and have also gone through the file of the case. 14. The plaintiffs have based their claim on the Will dated 1.6.2005 registered on 3.6.2005. The claim of the defendant-appellant Sheela Devi is that Sewa Singh executed Will dated 28.4.2005 in her favour. Both the Courts below after appreciating the evidence on the file reached to the conclusion that both Wills dated 1.6.2005 and 28.4.2005 remain unproved on the file. The trial Court dismissed the RSA No. 3327 of 2011 7 suit of the plaintiffs on the ground that Will dated 1.6.2005 in favour of the plaintiffs was not held to be proved. Since, there is concurrent finding of fact recorded by both the Courts below that Will dated 1.6.2005 in favour of the plaintiffs and Will dated 28.4.2005 in favour of the defendant-appellant, have not been proved and that being concurrent finding of fact, cannot be challenged in the regular second appeal. There is nothing on the file that such finding is a result of mis-reading or mis-interpretation of the evidence on the file. Issue No.3 regarding execution of Will dated 28.4.2005 in favour of the defendant-appellant has been framed. So, the argument of counsel for the appellant that in the absence of said issue, no finding on the Will can be given, is mis-conceived on the face of it. Specific issue was framed. Both the Courts below have observed that original Wills dated 1.6.2005 and 28.4.2005 have not been produced on the file. That fact has not been disputed during the course of arguments. So, in these circumstances, the findings of both the Courts below does not call for any interference. 15. So, far as the submission made by counsel for the appellant to the effect that Ist Appellate Court has exceeded its jurisdiction in declaring that each of the legal heir is entitled to 1/5th share of the property left by Sewa Singh, is concerned, that submission is without any substance. Both the parties have failed to prove their respective Wills, as alleged by them. So, in the absence of Will, the property of Sewa Singh will devolve as per natural succession. It is not disputed during the course of arguments that RSA No. 3327 of 2011 8 Sewa Singh left 5 legal heirs, who are party to the suit, which are other than the institution, arrayed as respondent. So, in these circumstances, the Ist Appellate Court was well within its rights to pass the decree of declaration that each of the legal heir shall be entitled to 1/5th share of the property held by Sewa Singh. So, it cannot be said the Ist Appellate Court has exceeded its jurisdiction. 16. The other argument raised by counsel for the appellant to the effect that since the appellant has been nominated in the bank account and as such she is entitled to get the same. However, it is settled law that nomination is made only for the purpose of collection of the amount from the bank, but that amount shall have to be shared in accordance with law of inheritance. 17. In view of the above discussion, all the points raised by the appellant stand determined against the appellant. 18. Consequently, the appeal is without any merit and the same stands dismissed. 19. A copy of the judgment be sent to the trial Court for compliance. ( K.C. Puri ) 11.8.2011 Judge sv/chugh