RSA No.4281 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4281 of 2010 (O&M) Date of Decision: 22 .11.2011 Prem Chand ...Appellant Vs. Om Prakash & Ors. Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Amrik Singh, Advocate, for the appellant. Mr.Surjit Singh, Sr.Advocate, with Mr.Amit Kashyap, Advocate, for respondents No. 1 to 4. --- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- A.N.Jindal, J. Plaintiff/appellant Smt.Amro (now deceased) represented by Prem Chand, claiming herself to be the sister of deceased Hukmi Ram has filed this suit for declaration seeking inheritance of his brother Hukmi Ram. The suit was decreed by the trial court on 2.2.2009. However, the appeal preferred by defendant/respondent RSA No.4281 of 2010 2 was accepted and the suit was dismissed by the first appellate court on 12.10.2010. Hukmi Ram was the owner to the extent of ½ share in the land measuring 152 kanals 10 marlas. He died issueless on 7.11.1997. His wife had predeceased him. On the death of Hukmi Ram, defendants Nos.1 to 4 respondents (herein referred as defendants Nos. 1 to 4 sons of Dhani Ram step brother of Hukmi Ram got the mutation sanctioned in their favour. Plaintiff claimed that she being the sister of Hukmi Ram is entitled to his share in the suit land. The defendants, on the other hand, while admitting that Smt. Amro was sister of Hukmi Ram, denied other averments and stated that they have been serving Hukmi Ram and his wife during his life time and being happy with the services rendered by them, he had executed a registered Will on 2.07.1996 (Ex.D.1) in their favour. They have been in possession of the suit land during the life time and even after his death. Therefore, they prayed for dismissal of the suit. Replication has also been filed. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff is entitled to relief of declaration to the effect that he (heir of Smt. Amro) is the owner and in joint possession of the suit property as prayed for? OPP RSA No.4281 of 2010 3 2. Whether the mutation No.1915 regarding property of Hukmi Ram in favour of the defendants is wrong, illegal, null and void as prayed for? OPP 3. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 4. Whether the suit is not maintainable in the present form? OPD 4-A Whether Hukmi Ram executed Will dated 2.7.1996 in favour of the defendants? OPD (framed after remand) 5. Whether the plaintiff has no right or concern with the suit property? OPD 6. Whether the plaintiff is estopped by his own act, conduct, admission and acquiescence from filing the present suit? OPD 7. Relief. In order to prove their case, plaintiff Prem Chand appeared as (PW 3) and he examined Gopal Chand (PW 1), Sat Pal (PW 2), Sham Karan (PW 4) and Inder (PW 5). To the contra, the defendants examined Krishan Lal (DW 1), Dilbag Rai (DW 2), Rajesh Chander (DW 3) and Amarjit Singh (DW 4). The trial court decreed the plaintiff's suit on 2.2.2009, whereas the said judgment was reversed by the first appellate court RSA No.4281 of 2010 4 and it bestowed the property on the defendants on the basis of Will dated 2.07.1996. It would be pertinent to mention here that earlier this suit was dismissed by the trial court on 10.10.2005, whereas the first appellate court vide judgment dated 23.8.2007, had accepted the appeal, remitted back the case with a direction to frame a specific issue with regard to the Will. Thereafter, issue No.4-A was framed and trial court then changed the view and decreed the suit. Smt.Amro deceased being a resident of different village i.e. Tibba Nangal and being married had no occasion to serve Hukmi Ram, whereas a lot of evidence has come on the record that the defendants being the sons of Dhani Ram, step-brother of Hukmi Ram, were serving Hukmi Ram and his wife. Amarjit Singh (DW 4) and Krishan Lal Sarpanch of village (DW 1) besides admitting the Will, have deposed that the Will Ex.D.1 was executed by Hukmi Ram with his free will and consent in favour of defendants Nos. 1 to 4. The witnesses have also deposed that they personally knew Hukmi Ram deceased and his wife Achhri. Hukmi Ram was also related to the defendants No.1 to 4 and they used to render services to him and his wife. Hukmi Ram was of sound disposing mind at the time of execution of the Will in favour of defendants No.1 to 4. The Will was scribed by Kewal Krishan, Deed Writer at the instance of Hukmi Ram and same was read over to him and Hukmi Ram after admitting the contents of the Will to be correct had thumb marked the same. Similarly, defendants have also examined Dilbagh Rai DW 2 who has RSA No.4281 of 2010 5 also proved execution of the Will Ex.D.1. Will was registered with the Sub Registrar, Nurpur Bedi and bears the photographs of Hukmi Ram and also his thumb impressions at the appropriate place. The Will also bears the signatures of Smt.Achhri wife of deceased Hukmi Ram. It has also been specifically stated in the Will Ex.D.1 that Smt.Amro and Dhani Ram and Ram Kishan would have no connection with the suit property. This fact that the Will finds mention of the name of Dhani Ram also indicates that defendants were the nephews of Hukmi Ram. There is no evidence on record in order to establish if Hukmi Ram ever stayed with Smt.Amro or he had any soft corner for her. She having been married was happy along with her children at village Tibba Nangal whereas Hukmi Ram was residing at village Balewal. It is also pertinent to mention here that the defendants were cultivating the land of Hukmi Ram during his life time and even after his death and on the death of Hukmi Ram they got mutation No.1915 sanctioned in their names and at that time, no objection was raised by the plaintiff. Not only this, they remained silent for four years and ultimately filed the suit on 8.8.2000. Had the defendants No.1 to 4 no relationship, and the plaintiff did not know about the Will then she (Smt.Amro) would have forthwith rushed to the Sub Registrar for sanctioning of the mutation in her favour on the basis of natural succession. Smt.Amro plaintiff did not challenge mutation before the revenue authorities since 1996 and no evidence has been led if she had challenged the mutation till the filing of the suit in 2000. The Will RSA No.4281 of 2010 6 being registered one attaches more sanctity particularly when it is duly proved by the respectable persons including Sarpanch of the village. Even otherwise, the findings of facts returned by the appellate court regarding the fact that the Will stands established, in the absence of any such glaring defect in the findings it cannot be reversed on flimsy grounds. The first appellate court appears to have decided the issues while appreciating the evidence in right perspective. No substantial question of law arises in this appeal for determination of this court. Dismissed. (A.N.Jindal) 22.11.2011 Judge rp