Attar Singh vs Chand Kaur

Arun Palli, J.—Suit filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 19.04.2012. Appeal preferred against the said decree failed and was, accordingly, dismissed by the learned first Appellate Court, vide judgment and decree dated 28.09.2013. That is how, the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereafter, would be referred to by their original positions in the suit.

The case set out by the plaintiff was that Harphool Singh son of Arjan son of Rama was her father and after marriage she started living with the family of her-in-laws at Singhu, Delhi. It was maintained that she had been visiting her father Harphool Singh during his life time. Harphool Singh had full love and affection towards the plaintiff. Harphool Singh died in the year 1992 leaving behind the plaintiff as her sole heir. Harphool Singh was the owner in possession to the extent of his share in agricultural land comprised in khewat No. 52/50, khata No. 27, rectangle and killa No. 12/19 M(8-0) and also vis-�-vis the land comprised in khewat No. 77/74, khata No. 150, rectangle and killa No. 28/6/2(2-3), 15/1(5-2) total measuring 7 kanals and 5 marlas situated within the revenue estate of Village Sewli, Tehsil and District Sonepat. Mother of the plaintiff had predeceased her father and she was residing with her-in-laws and thus taking advantage of the loneliness of Harphool Singh, the defendants got a Will dated 18.02.1971, registered on 21.02.1971, executed to grab the suit property. Estate of Harphool Singh was mutated in the name of the defendants, pursuant to the alleged Will. It was pleaded that the defendants were not related to deceased Harphool Singh and thus, no Will could be executed in their favour. Still further, the recitals in the Will that Harphool Singh had no daughter, son or other legal heir was incorrect as the plaintiff was real daughter of the deceased and was very much alive. The fact with regard to the execution of the Will was never shared by Harphool Singh with the plaintiff during his life time. Therefore, the Will being propounded by the defendants was got executed by misrepresentation and playing fraud upon Harphool Singh, who happened to be an illiterate person and an innocent villager. Thus, the plaintiff was the owner of the suit property and was entitled to the possession.

In defence, it was pleaded by the defendants that, post-marriage of the plaintiff, she started living in her matrimonial home and hardly visited her father. Purportedly, father of the plaintiff lived with the defendants, who served him during his life time and till his death in the year 1994. Defendants also claimed a close relationship with the deceased Harphool Singh. It was maintained that Harphool Singh indeed executed a registered Will dated 18.02.1971 and the same was done by him with his free consent, sound mind or any undue influence. Additionally, the suit was stated to be barred by time. It was pleaded that the plaintiff lacked locus-standi to institute the present suit.

On an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that the Will in question did not refer to wife of the deceased Harphool Singh and also does not acknowledge the existence of the plaintiff, who concededly happened to be the daughter of Harphool Singh (testator). It was observed that discarding the existence of the plaintiff altogether was a fact which even misled the revenue authorities, who entered mutation pursuant to the alleged Will. In the circumstances, even no notice was issued to the plaintiff, though she was the daughter and the only heir of the deceased. DW2 Lakhmi Chand, an attesting witness of the Will, admitted in his cross-examination that none of the attesting witnesses belonged to Village Sewli, where the testator Harphool Singh was residing at the time of execution of the alleged Will. He also admitted his close relationship with the defendants. So much so, he stated in his cross-examination that Harphool Singh was unmarried and did not have any issue. Thus, it was observed that the false recitals in the Will Ex. D1 contrary to the true and actual position were fully known to the attesting witness DW2. Merely by producing the attesting witnesses of the Will the genuineness thereof could not be said to have been proved. Likewise, mere registration of document was not enough by itself to prove its due and valid execution unless and until it was proved that the same was signed by the testator with a free will and sound disposing mind. Resultantly, it was concluded that the plaintiff had successfully established the registered Will dated 21.02.1971 and mutation No. 2134 sanctioned on the basis of the same, were wholly illegal and void. Consequently, the plaintiff being the sole heir of deceased Harphool Singh was held to have inherited the suit property and thus, entitled to possession. Vis-�-vis the issue as to whether the suit of the plaintiff was barred by time, learned trial Court observed that the present suit was filed on 27.09.2007 and it was pleaded by the plaintiff that on 29.08.2007, when she along with her husband visited the suit property, she was disallowed from entering the fields by the defendants, propounding a Will and a mutation. Plaintiff Chand Kaur (PW1) reiterated her stand in her statement in the Court and her testimony in this regard remained unshaken despite an elaborative cross-examination. The reliance was placed upon the decisions of Hon''ble the Supreme Court and this Hon''ble Court reported as Balwant Singh and others Vs. Gurbachan Singh and others, and Ibrahim Vs. Sharifan, Accordingly, it was held that a mere entry of mutation in the name of the defendants in the absence of any overt act of the defendant does not give rise to cause of action for the purpose of Article 58 of the Schedule to the Limitation Act. In any case, the plaintiff being the daughter of late Harphool Singh succeeded to his estate by a natural succession immediately on his death as succession never remains in abeyance. Thus, the issue was decided against the defendants. As a result, vide judgment and decree dated 19.04.2012, learned trial Court decreed the suit.

Being dissatisfied with the said decree, the defendants preferred an appeal. Learned first Appellate Court reviewed the matter in issue, evidence on record in its entirety and on an analysis thereof found itself in concurrence with the view drawn by the learned trial Court and the findings recorded in support thereof. It was reiterated that the plaintiff happened to be the daughter of deceased Harphool Singh and has locus-standi to institute the suit. Will (Ex. P1) did not mention a single word about the existence of the plaintiff, thus, the same was surrounded by the suspicious circumstances. Reliance was placed upon Adivekka and Others Vs. Hanamavva Kom Venkatesh ''D'' by LRs. and Another, wherein, the testator had bequeathed his property to his niece through registered Will though he had wife and minor children and in these circumstances, it was held that no person would disinherit his minor children and six unmarried grand daughters. The Will was held to be not genuine though registered. Likewise, in Jarant Singh and others v. Sukhjinder Singh and others, 2008(1) LJR 832, the Will was executed in favour of the strangers not related to the testator ignoring the real successors. It was, accordingly, held that there existed a suspicious circumstance regarding the valid execution of the Will. That being so, learned first Appellate Court observed that since even in the present case Will in question does not mention the existence of the plaintiff, so it certainly was surrounded by a suspicious circumstance. Defendants failed to prove as to why the testator ignored the plaintiff to inherit his property. Depriving the plaintiff to inherit the estate of her father Harphool Singh and bequeathing his property in favour of the defendants was sufficient to hold that the genesis of the Will was not proved. Suit was held to be within limitation. Accordingly, vide judgment and decree dated 28.09.2013, the appeal preferred by the defendants was dismissed.

I have heard the learned counsel for the appellants and the learned counsel for the caveator/respondent and also examined the judgments rendered by both the Courts below.

Learned counsel for the appellants could not show or point out as to how the findings recorded by both the Courts were perverse or the conclusions arrived at were contrary to the record. It was recited in the Will that Harphool Singh had no daughter, son or legal heir, whereas, the plaintiff happened to be his real daughter and was very much alive. On the contrary, the defendants could not substantiate their purported.

In the wake of the position as set out above and the conclusions that have concurrently been recorded by both the Courts below, there does not exist any ground, least plausible in law, to interfere with the decrees being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. The appeal being devoid of merit is, accordingly, dismissed.