Gurdev Singh vs Jagdish Singh and Others

L.N. Mittal, J.—Gurdev Singh defendant no. 2 having failed in both the courts below, has filed this second appeal. Suit was filed by respondent no. 1-plaintiff Jagdish Singh against appellant and proforma respondents no. 2 to 4 as defendants. It is undisputed that the plaintiff''s father Tirlok Singh since deceased was owner of the suit land. In the suit, the plaintiff challenged the alleged exchange of suit land by Tirlok Singh with defendants/respondents 3 and 4 vide mutation no. 3429 dated 28.5.1979 and consent judgment and decree dated 11.6.1979. The plaintiff pleaded that his father had executed Will dated 30.12.1966 in favour of the plaintiff who is, therefore, owner in possession of the suit land. In the alternative, the plaintiff also claimed to be owner in possession of the suit land on the basis of natural inheritance.

The defendants while admitting that the plaintiff is son of Tirlok Singh and that Tirlok Singh was owner of the suit land pleaded that Tirlok Singh had exchanged the suit land and therefore, Rattan Singh defendant no. 4 is owner thereof. It was also pleaded that wife and five daughters left behind by Tirlok Singh have not been impleaded as party to the suit. It was also pleaded that Will dated 30.12.1966 in favour of the plaintiff was cancelled by Tirlok Singh vide subsequent registered Will dated 25.5.1979 in favour of defendant no. 2-appellant. Exchange as per aforesaid mutation and consent judgment and decree dated 11.6.1979 were pleaded to be legal and valid.

Both the courts below have decreed the suit of the plaintiff. Feeling aggrieved, defendant no. 2 has filed this second appeal.

Substantial questions of law allegedly arising in this second appeal filed today in Court by counsel for the appellant are taken on record subject to all just exceptions.

I have heard counsel for the parties and perused the case file including files of both the courts below with their assistance.

At the outset, it may be noticed that alleged exchange of suit land by Tirlok Singh with defendants no. 3 and 4 vide mutation no. 3429 dated 28.5.1979 and consent judgment and decree dated 11.6.1979 have been held to be invalid by the courts below and counsel for the appellant did not challenge the said finding of the courts below during the course of arguments before me. Beside it, courts below have also held that Will dated 30.12.1966 set up by the plaintiff has not been proved. The said finding is also not under challenge because the plaintiff has not filed any appeal or cross-objections. Defendant no. 2/appellant led some additional evidence in first appeal by producing original Will dated 25.5.1979 and examining some witnesses.

The sole question to be determined in the instant second appeal is regarding Will dated 25.5.1979 allegedly executed by Tirlok Singh in favour of defendant no. 2-appellant.

Counsel for the appellant vehemently contended that the lower appellate court has recorded wrong reasons for discarding the Will. It was contended that the testator himself had not gone to the office of Sub Registrar, Ludhiana on 25.5.1979 to make application Ex. DW8/A that the Will may be registered at Bhaini Sahib where the testator was then residing and the appellate court has erroneously observed that the testator himself had gone to Ludhiana to move the said application. It was also contended that name of grand-father of testator Tirlok Singh mentioned in the Will can be read as Roop Singh as well as Kaum Singh and thus the lower appellate court has erroneously observed that it has been mentioned as Roop Singh whereas correct name was Kaum Singh.

The aforesaid contentions cannot be accepted. Concerned Sub Registrar while appearing as DW8 in the trial court stated that the testator had come to the office to make the said application although later on the witness volunteered to add that he did not remember this fact with certainty. However, it is significant to notice that no reason has been mentioned in the said application as to why the Will was being got registered at Bhaini Sahib and not at the office of Sub Registrar at Ludhiana. Consequently, the plea of counsel for the appellant that the testator was ill and could not go to Ludhiana to get the Will registered there, cannot be accepted.

Perusal of the original Will in the file of the lower appellate court reveals that grand-father''s name of the testator has been mentioned therein as Roop Singh and the same cannot be read as Kaum Singh as sought to be argued by counsel for the appellant. On the other hand, lower appellate court has recorded detailed reasons to discard the Will dated 25.5.1979 set up by Gurdev Singh. The said reasons (not being repeated here) are more than are sufficient to discard the said Will.

In addition to the aforesaid, Gurdev Singh defendant no. 2 is stranger and had no relationship with the testator. There was no reason for executing the alleged Will in favour of the appellant or for dis-inheriting son, wife and five daughters of the testator. Counsel for the appellant tried to emphasise that the testator was residing in Gurudwara at Bhaini Sahib for 13 years before his death in June, 1979 and defendant no. 2 as Sewadar in the said Gurudwara was serving the testator there. However, there is not even a plea to this effect in the written statement and therefore, in the absence of any foundation in the pleadings, the aforesaid contention has to be rejected outrightly.

It is also significant to notice that the appellant in the written statement did not even claim himself to be owner or in possession of the suit land on the basis of the alleged Will or otherwise. On the contrary, it was specifically pleaded in the written statement that Rattan Singh defendant no. 4 is owner of the suit land. It again falsifies the claim of defendant no. 2 appellant regarding his ownership over the suit land.

There are also various suspicious circumstances surrounding the Will dated 25.5.1979 as noticed hereinbefore and as also mentioned in judgment of lower appellate court. The said suspicious circumstances have not been explained or dispelled by the appellant.

For the reasons aforesaid, I find that the Will dated 25.5.1979 set up by defendant no. 2 has been rightly discarded by the courts below. Finding recorded by the courts below in this regard does not suffer from any perversity or illegality nor it is based on misreading or misappreciation of the evidence on record. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. Substantial questions of law, placed on record today as allegedly arising in the instant second appeal, do not arise for adjudication in this second appeal. Infact no substantial question of law arises for adjudication in this second appeal. At the risk of repetition, it may be highlighted that defendant no. 2-appellant did not even claim himself to be owner or in possession of the suit land in the written statement and rather pleaded that Rattan Singh is owner of the suit land. Consequently, his claim in the instant second appeal regarding his ownership over the suit land cannot be accepted being not only beyond the pleadings but also being completely contradictory to the pleadings. For the reasons aforesaid, I find no merit in this second appeal which is accordingly dismissed leaving the parties, however, to suffer their respective costs throughout.