Iqbal Singh vs Hernek Singh and Others

V.K. Jhanji, J.—This shall dispose of Regular Second Appeal No. 527 and 1436 of 1996, R.S.A. No. 527 of 1996 has been preferred by the plaintiff whereas R.S.A. No. 1436 of 1996 has been preferred by proforma defendant, namely, Kako @ Iqbal Kaur. Both the appeals have been directed against the judgment and decree of the Courts below whereby suit filed by the plaintiffs for declaration to the effect that they are owners in possession of 233 Kanals being half share of land measuring 466 kanals, has been dismissed.

In brief, the facts are that one Surjan Singh was the owner of land measuring 466 kanals as detailed in the head-note of the plaint. Surjan Singh had three sons, namely, Joginder Singh, Santokh Singh and Baldev Singh. Baldev Singh died issue-less during the life time of Surjan Singh. After the death of Surjan Singh, Joginder Singh and Santokh Singh became the owners of land measuring 233 kanals each. Santokh Singh died issuless leaving behind Jas Kaur being his widow. Mutation regarding the estate of Santokh Singh was sanctioned in favour of Jas Kaur and Jas Kaur became owner in possession of land measuring 233 kanals, being half share of land measuring 466 kanals. Plaintiffs Sukhdev Singh and Iqbal Singh are the sons of Joginder Singh. It is the case of plaintiffs that Jas Kaur died on 3.6.1989 and on her death they have become owners of land left by Jas Kaur on the basis of will dated 28.5.1989 allegedly executed by her in their favour. Plaintiffs also alleged that Jas Kaur did not suffer any decree during her life time in favour of Harnek Singh, defendant nor she executed any Will on 22.5.1989 in favour of Harnek Singh. Plain tiff, thus, prayed in the suit that they be declared owners in possession of land measuring 233 kanals which originally belonged to Santokh Singh and on his death to Jas Kaur. The suit was contested by Harnek Singh, defendant. In his written state ment, Harnek Singh apart from taking the plea of suit being bad for non-joinder of necessary parties or being barred by time, averred that Jas Kaur suffered decree dated 30.4.1976 of land measuring 116 Kanals 10 marlas and she also executed will dated 22.5.1989 registered on 23.5.1989 in his favour, bequeathing in his favour her entire property. Defendar Harnek Singh further submitted that plalntiffs are estopped by their own ct and conduct in challenging the decree because after the passing of decree dated 30.4.1976 the land was partitioned among the co-sharers and two agreements dated 12.11.1979 were executed to which the plaintiffs and proforma defendants were parties under one part and Jas Kaur and defendant Harnek Singh were parties of the second part. Will dated 28.5.1989 set up by the plaintiff was said to be a forged and fictitious document. Harnek Singh, defendant also, filed counter-clalm seeking declaration that he is owner of land measuring 33 kanals 4-1/2 marls which was sold by Jas Kaur on 28.4.1976 to the plalntiffs pleading that sale deed was got executed from Jas Kaur under undue influence and threat. Alongwith declaration, he sought possession of land measuring 33 kanals 4-1/2 marlas on the ground that sale deed dated 28.4.1976 was without any consideration. On the pleadings of the parties, following issues were framed:-

Whether the suit is bad for non-joinder of necessary parties? OPD.

Whether the suit is within time? OPP.

Whether the plalntiffs are estopped by this act and conduct from filing the suit? OFD.

Whether the plalntiffs have locus standi to file the present suit at, per allegation No. 5 of w/statement. OPD.

Whether deceased Jas Kaur has executed a valid Will dated 28.5.1989 in favour of the plalntiffs and the plalntiffs are, therefore, owners in possession of the suit land? OPP.

5-A. Whether deceased Jas Kaur had executed a valid Will dated 22.5.1989 registered on 23.5.1989 in favour of defendant No. 1, if so to what effect? OPD.

5-B. Whether the sale deed dated 28.4.1976 is invalid? If so, to what effect? OPD.

5-C. Whether counter clalm is barred by limitation? OPD.

Whether the entries in the revenue record i.e. in the record of rights are incorrectly recorded? If so to what effect? OPD.

Whether the impugned decree dated 30.4.1976 is the result of fraud as alleged in para No. 8 of the plalnt and the same is null and void and ineffective qua the rights of the plalntiffs? OPP

Whether the plalntiffs are entitled to the declaration as prayed for? OPP.

Relief.

Trial Court after appreciating the evidence on record, found that decree dated 30.4.1976 suffered by Jas Kaur in favour of Harnek Singh was just and valid and the same is not by way of any fraud. Will dated 22.5.1989, registered on 23.5.1989 was also found to have been validly executed by Jas Kaur. As a consequence of these findings suit filed by the plalntiffs was dismissed. The cross-objections filed by the defendants for declaring the sale deed 28.4.1976 executed by Jas Kaur in favour of the plalntiffs was held not to be without consideration. The counter-clalm was also held to be barred by time. Appeal preferred by the plalntiffs and the cross-objections preferred by defendant Harnek Singh were dismissed by the learned Additional District judge. Hence, Regular Second Appeal No. 527 of 1996 by the plalntiffs and Regular Second Appeal No. 1436 of 1996 by Kako @ Iqbal Kaur whose interest is common with that of the plalntiffs.

It has been contended by the counsel for the pLalntiffs and proforma defendant that decree dated 30.4.1976 was obtained by defendant Harnek Singh from Jas Kaur by producing some other woman and so, the decree is null and void and the finding in this regard of the courts below is liable to be reversed. As regards Will dated 22.5.1989 it has been contended by the counsel that execution of the Will is surrounded by suspicious circumstances inasmuch as no explanation has been given for disinheriting the plaintiffs who otherwise would have succeeded to the property of the testator in absence of the Will.

Against this counsel for defendant Harnek Singh has contended that both the courts below have found that the plalntiff has no locus standi to assail the decree suffered by Jas Kaur in favour of Harnek Singh for the reason that the decree was given effect to during the life-time of Jas Kaur. He contended that the decree was suffered by Jas Kaur in April, 1976 whereas she died on 3.6.1989 and during all these years, the decree was not challenged, rather the plaintiffs themselves were parties to the agreements dated 12.11.1979 by which land was partitioned between Jas Kaur, Harnek Singh and the plaintiffs and proforma defendant. He also contended that otherwise too, suit filed to challenge the decree has become barred by time. As regards the Will, counsel contended that both the Courts below on appreciation of evidence on record have found the Will to have been validly executed by Jas Kaur and this being a finding of fact calls for no interference.

After hearing the learned counsel for the parties and going through the record, I am of the view that the appeals are without any merit. It is not disputed that Harnek Singh defendant is the son of brother of Jas Kaur. Jas Kaur had no issue of her own. Harnek Singh''s mother died while he was very young and since then he had been living with Jas Kaur as her son. Decree dated 30.4.1976 passed on the basis of judgment, Ex. D-9 was suffered by Jas Kaur in favour of Harnek Singh. By this decree, she admitted Harnek Singh to be owner in possession of land measuring 116 kanals 10 marlas out of her share of 233 kanals. On the basis of the decree, mutation No. 16764 was sanctioned on 25.7.1976 and in the Jamabandis prepared subsequent thereto, Harnek Singh came to be shown as co-sharer owning 116 Kanals 10 marlas of land. Jas Kaur remained alive for more than 12 years after she had suffered the decree, but during her lifetime neither she nor anyone else challenged the same. Plalntiffs themselves had all along been aware of the mutation which was sanctioned on the basis of decree dated 30.4.1976 and also the recital contained in jamabandis prepared after sanctioning of mutation dated 25.7.1976 but no protest whatsoever was lodged by them. For the first time, challenge in this regard was made in the suit filed on 18.8.1989. In my view, the plaintiffs have no locus standi to assail the decree on the ground that it was obtained by fraud or impersonation. The decree was given effect to in the revenue record during the life-time of Jas Kaur and it Mras open to her, if she so liked, to have the decree set aside on the grounds taken by the plalntiffs. I do not think that the plaintiffs have a right to maintain an action after so many years of the passing of the decree. More so, suit for declaration for declaring the decree illegal or null and void, is governed by Article 58 of the Limitation Act. The party aggrieved by the invalidity of the decree has to approach the court for relief of declaration that the decree sought to be used against is inoperative and not binding upon him, within the prescribed period of limitation. If the statutory limitation expires, the court cannot give the declaration sought for. In the present case, decree was passed on 30.4.1976. Mutation on the basis of the decree was sanctioned on 25.7.1976. Suit to avoid the decree has been filed on 18,8.1989 which on the face of it is beyond the prescribed period of limitation of three years. Consequently, plalntiffs are not entitled to the declaration sought for.

I am also unable to agree with the contention of counsel for the plaintiffs that Will dated 22.5.1989, registered on 23.5.1989, is shrouded by suspicious circumstances. It is now well settled that unlike other documents, a Will speaks after the death of testator and as such when it is propounded, the testator is no longer in this world to say whether it is his Will or not. It is due to this fact that Courts generally call for a strict proof of the Will. Where there are suspicious circumstances, onus is on the propounder to explaln them to the satisfaction of the Court before the Court accepts the Will as genuine. But once the propounder proves that the Will was signed by the testator, that he was at the relevant time in a sound disposing mind, that he under- stood the nature and effect of the disposition and put his signature out of his own free will and that he signed it in presence of the witnesses who attested it in his presence and in presence of each other, the onus, which rests on the propounder, is discharged. The execution of Will dated 22.5.1989, registered on 23.5.1989, Ex.D-6, is fully proved. It has been scribed by Gurbachan Singh, document writer. Harnirpal Singh and Kartar Singh attested the Will. The doucment-writer as well as both the attesting witnesses appeared as DW-4, DW-2 and DW-3 respectively and from a reading of their statements, it is clear that the Will, was executed by Jas Kaur in favour of Harnek Singh of her free will and without any pressure. As regards the contention that no reason has been given in the Will for excluding the pLalntiffs from inheritance who otherwise would have succeeded to the property in absence of the Will, it is only to be stated that Sukhdev Singh, palntiff, in his own statement has admitted that Harnek Singh had been residing with Jas Kaur for 35 years. Sukhdev Singh conceded in his cross-examination that Harnek Singh''s mother had died and from fear of his step-mother, he started residing with Jas Kaur who was none else but his father''s sister. It has also come on record that they had common ration-card and during the life-time of Jas Kaur, Harnek Singh had been cultivating the land which had fallen to her share after the death of her husband, Santokh Singh. In fact Harnek Singh was being treated by Jas Kaur as her son. It is, therefore, held that there are no suspicious circumstances surrounding the Will, Ex.D-6.

Resultantly, both the appeals, RSA Nos. 527 and 1436 of 1996, shall stand dismissed. No costs.