R.S.A.No. 2905 of 2010 1 In the High Court of Punjab and Haryana at Chandigarh\ R.S.A.No. 2905 of 2010 Date of decision: 5.4.2011 Sumitra and others ......Appellants Versus Bateri and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Babbar Bhan, Advocate, for the appellants. **** SABINA, J. Plaintiffs had filed a suit for declaration and permanent injunction. The pedigree table as shown in para 1 of the judgment of the trial Court is as under:- Krishan Lal | Nanda | | | | | | | | Prem Singh Satbir Singh Bhateri Roshni Bimla Shialo Baljit Plff.No.1 Plff.No.2 Def.No.1 Deft.No.2 Deft.No.3 Deft.No.4 Deft.No.5 The case of the plaintiffs, in brief, was that the plaintiffs were sons of Nanda. Nanda had died on 27.2.1996. The alleged Will dated 26.10.1995 was illegal and had not been executed by R.S.A.No. 2905 of 2010 2 Nanda. Defendants No.1 and 2, in their written statement, averred that they both had been residing with their father, whereas, defendants No.3 and 4 were residing in their matrimonial homes. The suit property was self acquired property of Nanda and defendants No.1 and 2 were absolute owners of the same. Plaintiffs and defendants No.3 to 5 had no concern with the suit land. Defendant No.3 in her written statement admitted the claim of the plaintiffs. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owners and in possession over the suit land having their respective share? OPP. 1-A Whether the Will dated 26.10.1995 is illegal, null and void and not binding on the rights of the plaintiffs and defendant No.5? OPP 2. Whether the plaintiffs are entitled for permanent injunction on the ground alleged ? OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form ? OPD 4.Whether the plaintiffs have no locus standi to file the present suit ? OPD 5. Relief.” The Civil Judge (Sr.Divn.) dismissed the suit of the plaintiffs vide judgment and decree dated 17.2.2005. In appeal filed by the plaintiffs the said judgment and decree were upheld by the Additional District Judge vide judgment and decree dated R.S.A.No. 2905 of 2010 3 10.11.2009. Hence, the present appeal by the plaintiffs. After hearing learned counsel for the appellants, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. The case of the plaintiffs was that the suit property was ancestral property in the hands of Nanda and hence, he could not execute the Will qua suit property in favour of defendants No.1 and 2. Learned trial Court has noticed that deceased Nanda was owner of other property also excluding the suit property. A family settlement was arrived at during the life time of Nanda and his three sons. Land measuring 180 kanals 2 marlas was given by Nanda to the plaintiffs and defendant No.5 ( his three sons) by way of consent decree Ex.D-2 dated 8.2.1983. The said fact was admitted by plaintiff Prem Singh, while appearing in the witness box as PW-1. In these circumstances, it can be said that by way of a family settlement, Nanda, since deceased, had given the share out of the land owned by him to his three sons. Hence, the land which remained in the hands of deceased Nanda could be disposed of by him in the manner he liked. Nanda executed a registered Will Ex.D-1 dated 27.10.1995 in favour of defendants No.1 and 2. The defendants, in order to prove the due execution of the Will, examined scribe of the Will Satbir Singh as DW-2 and attesting witnesses of the Will, Dharampal as DW-4 and Chhattar Singh as DW-5. The said witnesses deposed qua due execution of the Will by executant Nanda in favour of defendants No.1 and 2. Both the Courts below, after appreciating the evidence led by the parties on record, have held that the land held by Nanda had been partitioned by him during R.S.A.No. 2905 of 2010 4 his life time and he had suffered a decree in favour of his three sons qua their share. Hence, deceased Nanda was competent to execute the Will qua his share in favour of defendants No.1 and 2. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE April 05, 2011 anita