R.S.A.No. 4382 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 4382 of 2008 Date of Decision:August 07, 2009 Jangir Kaur and another ---Appellants versus Nishan Singh and others ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.K.S.Chahal,Advocate, for the appellants *** SABINA J. Plaintiffs – Jangir Kaur and Gurmail Kaur had filed a suit for declaration and permanent injunction against the defendant. Civil Judge ( Junior Division), Barnala vide judgment and decree dated 23.12.2004 dismissed the suit of the plaintiffs. Aggrieved by the same, plaintiffs preferred an appeal and the same was dismissed by Additional District Judge, Barnala vide judgment and decree dated 7.6.2007. Hence, the present appeal. The facts of the case as noticed by the learned Additional R.S.A.No. 4382 of 2008 {2} District Judge, in paras 3 and 4 of its judgment read as under:- “The facts as pur-forth by the plaintiffs are to the effect that Gulzara Singh @ Gurdial Singh was the owner in possession of the suit property, who was the father of the plaintiffs. He died on 23.6.1997 at village Dhaula. After his death, the plaintiffs being natural heirs have become co-owners in equal shares. Bachan kaur widow of Gurdial Singh @ Gulzara Singh, the mother of the plaintiffs has since died. Harnam Kaur defendant is representing herself to be the wife of Gulzara Singh. By misrepresenting herself to be wife of Gulzara Singh, the defendant had secured the judgment and decree dated 09.04.1994 by impersonation. Someone was produced in place of Gulzara Singh @ Gurdial Singh at the time of procuring the decree. The defendant had no relationship with Gulzara Singh deceased. The judgment and decree dated 09.06.1994 has no effect on the rights of the plaintiffs. It has been alleged that Gulzara Singh @ Gurdial Singh never appeared in the Court and the decree was procured by impersonation. The defendant had no relationship with Gulzara Singh @ Gurdial Singh. The defendant is wife of Gulab Singh @ Gobu and three sons namely Nishan Singh, Chamkaur Singh and Mandar Singh and two daughters namely, Binder Kaur and Bhinder Kaur were born from the wedlock. The decree dated 09.06.1994 was never got registered. The mutation has been wrongly sanctioned on the basis of the judgment and decree. The plaintiffs came to know about the judgment and mutation on R.S.A.No. 4382 of 2008 {3} 03.07.1997. In pursuance of the notice of the suit, the defendant appeared and through the written statement, preliminary objections have been raised disputing the locus standi of the plaintiffs to institute the suit. The maintainability of the suit has also been challenged. It has been alleged that the plaintiffs are estopped by their act and conduct from filing the suit. The suit has been alleged to be barred by limitation. It has been alleged that the defendant is owner in possession of the suit property and the plaintiffs have no concern with the same. On merits, it has been alleged that the defendant was the owner in possession of the suit property even during the life time of Gulzara Singh and she is still owner in possession thereof. It has been admitted that Gulzara Singh @ Gurdial Singh was the father of the plaintiffs and he died on 23.06.1997. It has been denied that the plaintiffs are the heirs of the deceased. The defendant became owner in possession of the suit property by virtue of the judgment and decree dated 09.06.1994 The defendant had been rendering services to Gulzara Singh and he had executed a Will dated `1`1.06.1982 in favour of the defendant. '/the marriages of the plaintiffs was solemnised by Gulzara Singh by incurring substantial expenses and they are settled in the house of their in-laws. The plaintiffs never rendered any services to Gulzara Singh. The last rites of Gulzara Singh were performed by the defendant. The marriages of the plaintiffs was solemnized about 14 years ago R.S.A.No. 4382 of 2008 {4} and thereafter, they never came to Gulzara Singh to meet him. The plaintiffs had been seeing the defendant residing in the house of Gulzar Singh as his wife. The defendant is living in the house of Gulzara Singh as his wife since long and rendering services to him. It has been denied that the plaintiffs are daughters of Bachan Kaur or she was married with Gulzara Singh. It has been denied that the decree was procured by impersonation. Gulzara Singh had submitted the written statement and made statement in the Court and he was identified by the Lambardar of the village. The oral family settlement was acknowledged by Gulzara Singh and thereafter, judgment and decree dated 09.06.1994 was passed. The plaintiffs are bound by the term of the judgment and decree dated 09.06.1994 and the Will dated 11.06.1982. The mutation has been correctly sanctioned on the basis of the judgment and decree. The judgment and decree has been legally and validly passed. The plaintiffs were having the knowledge about the Will dated 11.06.1982. The suit has been alleged to be barred by limitation. The other material averments raised by the plaintiffs have been controverted.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether late Bachan Kaur was the mother of plaintiffs, if so its effect?OPP (2)Whether a judgment and decree dated 9.6.94 is null, void and ineffective against the rights of the plaintiffs as alleged R.S.A.No. 4382 of 2008 {5} in the plaint, if so its se3ffect? OPP (3)Whether the mutation No. 4088-C on the basis of judgment decree dated 9.6.94 is liable to be set- aside?OPP (4)Whether Guljara Singh (deceased)executed a valid Will dated 11.6.1982 in favour of the Harnam Kaur?OPD (5)Whether Harnam Kaur is the legal wedded wife of Guljara Singh(deceased)if so its effect? OPD (6)Whether an oral family settlement was effected between Guljara Singh (deceased) and Harnam Kaur? OPD (7)Whether plaintiffs have no locus-standi and cause of action? OPD (8)Whether plaintiffs are estopped from filing the present suit? OPD (9)Whether the suit is not maintainable in the present form? OPD (10)Whether the suit is within limitation? OPD (11)Relief. After hearing learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. Gulzara Singh @ Gurdial Singh, who was the owner of the property in question, had died on 23.6.1997. Plaintiffs claimed inheritance of the estate of the deceased being his daughters. Defendant, on the other hand, pleaded that she was residing with Gulzara Singh as his wife and hence he had executed a Will in her favour and had also suffered a decree in her favour. Plaintiff No. 2, while appearing in the witness box in her cross examination had admit ted that Gulab Singh- R.S.A.No. 4382 of 2008 {6} husband of defendant had died since long. In these circumstances, the courts below after appreciating the evidence on record held that the defendant was residing in the house of Gulzara Singh @ Gurdial Singh since long. Will executed by Gulzara Singh @ Gurdial Singh in favour of the defendant is dated 11.6.1982. In order to prove the due execution of the Will, defendant examined DW-2- Amarnath, scribe of the Will and DW-1 Piara Singh, attesting witness to the Will. As per the Will, Gulzara Singh bequeathed his property to the defendant and has described her in the Will as his wife. Executant -Gulzara Singh had further averred in the Will that his daughters were already married and he had spent sufficient amount at the time of their marriages. Since he was being looked after by the defendant Harnam Kaur, he was executing the Will regarding his property in her favour. The fact that defendant executed a Will describing herself as widow of Gulab Singh is not a sufficient circumstance to infer that there was no relationship of husband and wife between Gulzara Singh @ Gurdial Singh and Harnam Kaur. Harnam Kaur executed a Will in favour of her sons who were born out of the wedlock of Gulab Singh . After his death, she started residing with Gulzara Singh as his wife. Moreover, the Will executed by Gulzara Singh in favour of Harnam Kaur duly stands established. Gulzara Singh had also suffered a decree in favour of Harnam Kaur during his life time(Ex. P-2) dated 9.6.1994. Moreover, plaintiffs had failed to establish that the said decree was a result of fraud or misrepresentation. The said decree was not challenged by Gulzar Singh during his life time. In these circumstances, both the courts below have rightly dismissed the suit of the R.S.A.No. 4382 of 2008 {7} plaintiffs. No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE August 07, 2009 PARAMJIT