C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 Date of decision : February 16, 2011 Darshan Singh ....Appellant versus Lachhman Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. M.L. Saggar, Senior Advocate with Ms. Meenu Sharma, Advocate, for the appellant Mr. GS Sandhawalia, Advocate, for the respondents L.N. Mittal, J. (Oral) Darshan Singh plaintiff having been unsuccessful in both the courts below is in second appeal. The dispute in this lis pertains to property left by Chain Singh alias Chanan Singh who died on 23.10.1995. He was unmarried and issueless. Plaintiff and defendant no. 1 are brothers of Chanan Singh whereas defendants no. 2 and 3 are sons of defendant no. 1. The plaintiff C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -2- on the basis of natural succession claimed half share in the property of Chanan Singh, the other half share being of defendant no. 1. Defendants, however, set up two fold defence. They alleged that Chanan Singh had exchanged suit land with some other land of defendants no. 2 and 3 for which mutation no. 3074 was sanctioned on 18.3.1993 and accordingly, defendants no. 2 and 3 are owners in possession of the suit land left by Chanan Singh. Second defence was that Chanan Singh executed Will dated 9.2.1994 in favour of defendants no. 2 and 3 who were rendering services to the deceased testator and in view of said Will also defendants no. 2 and 3 have become owners in possession of the suit land left by Chanan Singh. Learned trial court vide judgment and decree dated 6.11.2000 discarded the plea of exchange set up by the defendants but held the Will dated 9.2.1994 set up by the defendants to have been duly proved and consequently the suit was dismissed. In first appeal preferred by the plaintiff, learned Additional District Judge, Jalandhar vide judgment and decree dated 18.11.2003 upheld the judgment and decree of the trial court and dismissed the appeal. Feeling aggrieved, the plaintiff has preferred the instant second appeal. Along with appeal, the plaintiff-appellant has moved CM No. 3214.C of 2004 for amendment of the plaint to plead that the suit land was ancestral coparcenary property of the deceased Chanan Singh along with his brothers plaintiff and defendant no. 1 and therefore, by survivorship interest C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -3- of Chanan Singh in the suit property shall devolve on plaintiff and defendant no. 1 in equal shares. The application has been opposed by respondents-defendants by filing reply. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that in view of section 6 of the Hindu Succession Act, 1956 (in short, the Act) interest of deceased Chanan Singh in Joint Hindu Family property shall devolve by survivorship on other coparceners i.e. plaintiff and defendant no. 1 because Chanan Singh had no female class-I heir. On the other hand, counsel for respondents contended that the suit property was not Joint Hindu Property of Chanan Singh with plaintiff and defendant no. 1 and the question of devolution of the property by survivorship on plaintiff and defendant no. 1 did not arise. It was also contended that there is no occasion for seeking amendment of the plaint at the stage of regular second appeal. I have carefully considered the rival contentions. There is no explanation why the proposed plea sought to be taken up by amendment was not taken in the trial court or in the lower appellate court. At this highly belated stage, proposed amendment cannot be allowed. Even otherwise Chanan Singh was issueless. Consequently, he was not debarred from executing Will of the suit property held by him. Section 6 of the Act relates to intestate succession. On the contrary, section 30 of the Act permits disposal of property by Will or testamentary disposition if the C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -4- property is so capable of being disposed of. Consequently, it cannot be said that Chanan Singh had no right to execute the Will. Section 6 of the Act would have come into picture if Chanan Singh had died intestate. For this added reason as well the proposed amendment in the plaint cannot be allowed. Accordingly, CM No. 3214.C of 2004 seeking amendment of plaint is dismissed. As regards merits of the appeal, learned counsel for the appellant raised a very strange contention. It was contended that in view of exchange mutation no. 3074 set up by the defendants Chanan Singh was not owner of the suit land at the time of his death and therefore, in view of section 152 of the Indian Succession Act, 1925, the Will in question would not relate to the suit property. The contention is completely misconceived rather bordering on absurdity. The exchange mutation has not been accepted by the plaintiff-appellant. Both the courts below have also discarded the same. Consequently, it cannot be said that at the time of his death, Chanan Singh was not owner of the suit land. Section 152 of the Indian Succession Act, 1925 would, therefore, be of no help to the plaintiff- appellant. However, even assuming what the learned senior counsel has argued to be correct, even then it will not enure for any benefit to the plaintiff-appellant in any manner because in that event Chanan Singh was not owner of the suit land at the time of his death. Consequently, plaintiff- appellant inheriting half share in the suit land of Chanan Singh would not arise. The plaintiff-appellant cannot blow hot and cold in the same breath C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -5- by contending that no exchange took place and by also contending that in view of exchange mutation Chanan Singh was not owner of the suit land at the time of his death. Plaintiff has to accept one situation. If the exchange took place, question of inheriting suit land by plaintiff from Chanan Singh would not arise. Conversely if the exchange had not taken place, Chanan Singh was owner of the suit land and in view of the Will executed by him, defendants no. 2 and 3 inherited the same. Either way, the contention raised by learned counsel for the appellant is completely frivolous and meritless. Defendants have successfully proved the Will dated 9.2.1994 as set up by them. They have examined scribe of the Will and one attesting witness to prove the same. Both of them have supported the case of the defendants and proved due execution of the Will by Chanan Singh. The aforesaid Will is registered one. Registration of the Will further adds to its authenticity. Registration record was also got proved by examining concerned official with record. There is concurrent finding by both the courts below that the Will stands proved. The said finding is based on proper appreciation of evidence and is fully justified by evidence on record. Defendants' evidence to prove the said Will is cogent and credible and the same has not been rebutted in any manner because statements in negative made by the plaintiff and his witnesses carry no probative value on this aspect. Even learned counsel for the appellant could not advance meaningful argument against the aforesaid finding of the courts below. C.M. No. 3214.C of 2004 and Regular Second Appeal No. 1335 of 2004 -6- For the reasons aforesaid, I find that there is no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed. ( L.N. Mittal ) February 16, 2011 Judge 'dalbir'