RSA No. 1449 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 1449 of 2010 (O&M) Date of Decision: 17.5.2011. Mohinder Singh .......Appellant Vs. Kulwinder Singh & others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Sarwan Singh, Senior Advocate with Mr. N.S.Rapri, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for declaration that he along with defendant No. 21 had become owners in equal shares and in joint possession of the suit land measuring 30 Kanals 3 Marlas out of total land measuring 110 Kanals 7 Marlas. The case of the plaintiff in brief was that Waryama was the owner of the suit property. After his death, his wife Ralli and daughters Bissi, Kartar Kaur @ Kartari and Saro inherited the suit property. After the death of Ralli, her three daughters inherited her share in equal shares. Bissi died issueless about 40 years ago. Saro died leaving behind defendants No. 1 to 4 as her legal heirs. Kartar Kaur @ Kartari died on 7.8.1998. Puran Singh, husband of Kartari @ Kartar Kaur had one sister namely Sinno. Sinno became widow at an early age and had one daughter namely Mindho @ Baljinder Kaur. Sinno and Mindho @ RSA No. 1449 of 2010 (O&M) -2- Baljinder Kaur were residing with Puran Singh. Mindho @ Baljinder Kaur was orally adopted by Puran Singh and Kartar Kaur @ Kartari. Plaintiff was the son of Mindho @ Baljinder Kaur. Defendant No. 21 was brought up and educated by Puran Singh and Kartari @ Kartar Kaur. Marriage of defendant No. 21 was performed by Kartari @ Kartar kaur and Puran Singh and he was sent to England. Before Pardeep Singh left for England, Kulwinder Singh-plaintiff was brought to village Paddi Jagir by Puran Singh and Kartari @ Kartar Kaur . Kartari @ Kartar Kaur executed a registered will in favour of the plaintiff and defendant No. 21 on 24.4.1998. Defendants, in their written statement, averred that Waryama was maternal grand-father of defendant No.1 and after his death, his estate devolved on his wife Ralli and on her death, the property was inherited by her three daughters. Bissi- daughter of Waryama died issueless and her estate devolved on defendant No.1, whereas property of Saro devolved on defendants No. 6 and 7 as she had executed a will in their favour on 28.6.1976. Defendants No. 1 to 4 had no concern with the estate of Saro. Kartar Kaur @ Kartari had died on 9.8.1998 issueless. She had executed a will in favour of defendant No. 1 on 5.1.1965. The execution of will in favour of the plaintiff and defendant No. 21 by Kartar Kaur @ Kartari was denied. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether Smt. Kartari had executed legal and valid will dated 24.4.1998 in favour of plaintiff and defendant No. 21? OPP RSA No. 1449 of 2010 (O&M) -3- 2. Whether plaintiff and defendant No. 21 became owners in joint possession of estate left by Smt. Kartari? OPP 3. Whether plaintiff is entitled for declaration, as prayed for? OPP 4. Whether plaintiff is entitled for permanent injunction, as consequential relief? OPP 5. Whether plaintiff is entitled for joint possession, as alternative relief? OPP 6. Whether defendant No.1 inherited the estate of Smt. Bissi? OPD 7. Whether Smt. Saro had executed legal and valid sale deed dated 28.6.1976, in favour of defendant Nos. 6 and 7? OPP 8. Whether Smt. Kartari @ Kartar Kaur had executed legal and valid will dated 5.1.1965 in favour of defendant No.1? OPD 9. Whether suit is not maintainable in present form? OPD 10. Whether plaintiff has no locus-standi to file the suit? OPD 11. Whether the plaintiff is estopped by his act and conduct to file the suit? OPD 12. Whether suit is liable to be stayed u/s 10 of CPC? OPD 13. Whether plaintiff has not complied with the provisions of order 7 Rule 1 CPC? OPD RSA No. 1449 of 2010 (O&M) -4- 14. Whether suit has been filed against dead person i.e. defendant No. 10, if so its effect? OPD 15. Whether plaint is vague, if so its effect? OPD 16. Whether suit is bad for non-joinder of necessary parties? OPD 17. Whether suit is not properly valued for the purpose of court fee? OPD 18. Relief.” Additional Civil Judge (Senior Division) vide judgment and decree dated 24.1.2006, decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendant No. 1 preferred an appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 24.11.2009. Hence, the present appeal by defendant No. 1. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. The question that requires consideration is as to whether the deceased Kartari @ Kartar Kaur had executed a will dated 5.1.1965 in favour of the appellant. The appellant had failed to establish the will dated 5.1.1965. The original of the said will was not produced on record. In the absence of the original will, the case set-up by the appellant was liable to fail. The plaintiff, on the other hand, proved on record will dated 24.4.1998. The plaintiff examined Ram Sarup, Deed Writer as PW-3 and Harjinder Singh, attesting witness as PW-4. The said witnesses proved the due execution of the will dated 24.4.1998. Moreover, the plaintiff had also proved on record that he was having a joint account with the deceased Kartar Kaur @ RSA No. 1449 of 2010 (O&M) -5- Kartari. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 17, 2011 Gurpreet