RSA No.3449 of 2010 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3449 of 2010 (O&M) Date of Decision: 16 th May, 2011 Manjit Kaur Kalra ….Appellant Versus SPS Ahluwalia & others ….Respondents CORAM: - HON’BLE MR. JUSTICE L. N. MITTAL PRESENT: Mr. S. S. Narula, for the appellant. * * * * * L. N. Mittal, J. (Oral) CM No. 10047-C of 2010 Allowed as prayed for. CM No. 10048-C of 2010 It is stated that documents Annexure A-1 and A-2 have not been admitted in evidence in trial court, whereas documents Annexure A-3 and A-4 are plaint and written statement of the instant suit. Accordingly this application under Section 151 of Civil Procedure is partly allowed. Application for taking on record Annexures A-1 and A-2 is dismissed. However this application is -1- RSA No.3449 of 2010 (O&M) allowed qua documents Annexures A-3 and A-4, which are taken on record, subject to all just exceptions. CM No. 10049-C of 2010 and RSA No.3449 of 2010 Plaintiff-Manjit Kaur Kalra having failed in both the courts below has filed the instant second appeal. The dispute is among the siblings. Defendants/respondents are real brothers of the plaintiff/appellant. Suit property i.e. House No.116, Sector 16-A, Chandigarh belonged to Pritam Singh Ahluwalia father of the parties. He allegedly executed Will dated 07.12.1989 according to which he bequeathed all his property including the suit property in favour of his wife Kartar Kaur but it was also stipulated that after death of Kartar Kaur, plaintiff would have 2/5th share in the suit house and defendants would have 1/5th share each in the suit house. However Kartar Kaur also had liberty to alienate the suit property during her lifetime. Kartar Kaur admittedly filed suit against both the parties herein and against some other persons. The said suit was decreed vide judgment and decree dated 06.04.1993 declaring Kartar Kaur to be the sole and exclusive owner of the suit house. The said suit was decreed against all defendants of the said suit except defendant No.2 Jagarjit Singh, who is not party to the instant suit. -2- RSA No.3449 of 2010 (O&M) Plaintiff’s case is that in view of Will dated 07.12.1989, she has 2/5th share in the suit house. The plaintiff sought declaration to this effect. However, defendants’ stand is that Kartar Kaur, mother of the parties, executed registered Will dated 13.10.1993 apportioning the suit property into different portions among the parties and parties are owners of the said respective portions. Learned Civil Judge (Junior Division), Chandigarh vide judgment and decree dated 06.05.2005 dismissed the plaintiff’s suit. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Chandigarh vide judgment and decree dated 13.04.2010. Feeling aggrieved, plaintiff has filed the instant second appeal. Alongwith appeal, appellant has moved CM No.10049-C of 2010 for additional evidence to place on record certified copy of judgment and decree dated 06.04.1993 (Annexure A-2) passed in previous suit filed by Kartar Kaur. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently contended that in view of Will dated 07.12.1989 executed by father of the parties, plaintiff-appellant has 2/5th share in the suit property. The -3- RSA No.3449 of 2010 (O&M) contention cannot be accepted. The said Will has not been proved in accordance with law in the instant suit. On the contrary, pursuant to the said Will, Kartar Kaur mother of the parties was declared to be exclusive owner of the suit house vide judgment and decree dated 06.04.1993. Since said judgment and decree dated 06.04.1993 are not in dispute, the same are admitted by way of additional evidence. CM No.10049-C of 2010 for additional evidence is allowed. Present plaintiff was party to the said suit as defendant No.6. As per judgment and decree dated 06.04.1993 Annexure A-2, Kartar Kaur become exclusive owner of the suit house. Consequently, Kartar Kaur had authority to bequeath or deal with suit house in any manner she liked. Kartar Kaur executed Will dated 13.10.1993, which has been proved by defendants by examining Jaswant Singh, Advocate as DW-2, who is one of the attesting witnesses of the said Will. He has been wrongly mentioned as scribe of the Will in the judgment of the trial court, but in fact he has stated that he had not drafted the aforesaid Will although it was drafted in his presence. He has categorically said that he attested the Will as witness. He has also stated that he knew the executant Kartar Kaur. His statement could not be shaken in lengthy cross-examination. Jaswant Singh has thus proved that Will dated 13.10.1993 was duly executed by Kartar Kaur, mother of the parties. Finding of the courts below in this regard is fully justified by the unrebutted evidence of -4- RSA No.3449 of 2010 (O&M) the defendants. Therefore, the said finding does not warrant interference in second appeal as it is not shown to be perverse of illegal in any manner. From the aforesaid discussion, it emerges that pursuant to decree dated 06.04.1993 to which plaintiff herein was party, Kartar Kaur become exclusive owner of the suit property. Plaintiff- appellant is bound by said decree. Kartar Kaur bequeathed the said property vide Will dated 13.10.1993, thereby apportioning different portions of the suit property among the parties. Consequently, parties are bound by the said Will and have inherited the suit property under the said Will in accordance therewith. Plaintiff has, therefore, been rightly non-suited by the courts below. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is meritless and is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 16th May, 2011 ‘raj’ -5-