RSA No.3593 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.3593 of 2009 (O&M) DECIDED ON: 29.04.2010 **** Karnail Kaur . . . .Appellant Versus Joginder Singh and others . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.T.P.S. Tung, Advocate for the appellant. **** RAKESH KUMAR JAIN, J. Defendant No.1 is in second appeal against judgment and decree of both the Courts below whereby, suit of the plaintiff for declaration and permanent injunction has been decreed. Plaintiffs have pleaded that their father Sucha Singh was owner in possession of land measuring 173 Kanals 8 Marlas situated in revenue estate of Bairsal Kalan, Tehsil Samrala, District Ludhiana. He died in June 1999 and their mother Gurnam Kaur died a few months after his death. The plaintiffs used to serve their parents whereas defendants, who are their married sisters, were living in their matrimonial home. Sucha Singh gave the property in dispute to the plaintiffs by way of Will dated 2.6.1999 but defendant No.1 secretly got a mutation of inheritance of Sucha Singh on the basis of natural succession. The plaintiffs challenged the mutation by way of RSA No.3593 of 2009 (O&M) - 2 - an appeal, which was dismissed by SDM, Samrala and then they filed the present suit claiming their title over the property in dispute on the basis of Will dated 2.6.1999. The suit was contested by the respondents/defendants in which it was alleged that plaintiffs had filed an appeal against the order dated 29.5.2000 passed in Mutation No.1263 by AC IInd Grade, Samrala in which a fabricated death certificate dated 7.11.99 of Gurnam Kaur was produced though she was alive and was present on 29.5.2000 at the time of sanctioning mutation. She was identified by Hardeep Singh, Lamberdar. It was alleged that Sucha Singh and Gurnam Kaur were living separately due to strain relation, therefore, execution of Will by him does not arise. Defendant No.2 filed a separate written statement taking pleas identical to defendant No.1. The plaintiffs filed replication reiterating the averments of the plaint and denied the averments made in the written statement. On the pleadings of the parties, issues were framed and after taking the evidence both oral as well as documentary, both the Courts below have held that the Will dated 2.6.1999 (Ex.P1) is valid having been legally executed by Sucha Singh. Learned First Appellate Court also recorded finding, which reads as under: - “The learned trial Court observed that despite the testimony of Jasbir Kaur plaintiff as PW8, plaintiffs have also examined both the attesting witnesses of the Will, PW2 Jasbir Singh, PW3 Gurdial Singh, who have categorically deposed that Sucha Singh in his sound disposing mind and with his free will has executed Will dated 2.6.1999 in RSA No.3593 of 2009 (O&M) - 3 - favour of the plaintiff in their presence and scribe PW1 Sohan Lal after scribing the same has read over and the explained the same to Sucha Singh who thumb marked it after admitting it to be correct. Then they also signed it as its attesting witnesses. Witnesses could not be shattered. Defendants in the present case are Karnail Kaur and Jarnail Kaur. They are married daughters of Sucha Singh and naturally if Sucha Singh had executed a Will in his sound disposing mind in favour of his son Joginder Singh, daughter-in-law Jasbir Kaur and grandson Jaswant Singh, there is nothing wrong in it. It is common amongst jats that they preferred to give their land to their sons then their daughters. Jaswant Singh grandson of deceased Sucha Singh was minor at the time when Will was executed, but it does not mean that the deceased was not having love for his grandson. The position being so if Sucha Singh did not give any share to his married daughters there is nothing wrong init, as he had already spend sufficient money on their marriages.” Learned counsel for the appellant has vehemently argued that Sucha Singh had no occasion to exclude his married daughters at the time of execution of the Will but he has failed to prove that he was not a man of sound disposing mind and the Will was not RSA No.3593 of 2009 (O&M) - 4 - witnessed and his signatures/thumbmarks were not identified by the attesting witnesses, in accordance with law. As a matter of fact, it has been rightly observed by the learned Lower Appellate Court that amongst Jats the immovable property/agricultural land is retained amongst men and is not given to the married daughters as it would go to the other families. In any case, in the absence of any error in the appreciation of evidence of both the Courts below, who have recorded a firm finding of fact with regard to the due execution of the Will, the judgment and decree of both the Courts below cannot be set aside. Moreover, learned counsel for the appellant has neither framed any question of law much less substantial in terms of Section 100 of the Code of Civil Procedure, 1908 (for short ‘CPC’) nor has raised the same at the time of argument except for alleging that the Will is surrounded with suspicious circumstances, which were not unfolded. After hearing learned counsel for the appellant, I do not find any merit in the present appeal and as such the same is hereby dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 29.04.2010 JUDGE Vivek