Joginder Singh Tut vs Sukhvir Kaur and Others

M. Jeyapaul, J.—The 1st defendant Joginder Singh who in fact contested the suit filed by the plaintiff Sukhvir Kaur for declaration that she

was owner in joint possession over the suit property and projected the Will dated 21.3.1988 executed by his father Harbans Singh in favour of

2nd defendant Amandeep Singh and 3rd defendant Parvinder Singh, who are his sons and 5th defendant Lakhbir Kaur, his erstwhile wife, has

come forward with the present appeal challenging the dismissal of the suit filed by his sister Sukhvir Kaur. Plaintiff Sukhvir Kaur contended in the

suit for declaration that her father Harbans Singh who got the suit property ancestrally was owner in possession of the suit property till he died on

31.5.199. She and her brother Joginder Singh, 1st defendant in the suit, being the daughter and son of deceased Harbans Singh were equally

entitled to the subject property. The Will projected by the defendants was forged and fabricated one. The deceased Harbans Singh was not

competent to execute the Will as the property was ancestral coparcenary property.

The 1st defendant Joginder Singh filed written statement virtually supporting the Will dated 23.1.1988 executed by his father Harbans Singh in

favour of two sons arrayed as 2nd and 3rd defendants and his erstwhile wife Lakhvir Kaur arrayed as 5th defendant. He has in fact sought for

dismissal of the suit, contending further that the suit property was not ancestral coparcenary property of the joint hindu family. Defendants No. 2, 3

and 5 filed separate written statements contending that the subject matter was already bequeathed in their favour by the deceased Harbans Singh.

Both the Courts below having found that no evidence was let in by the plaintiff to establish that the suit property was ancestral coparcenary

property of the joint hindu family, held that the plaintiff cannot maintain suit for declaration that she was in joint possession of the suit property.

Further, referring to the evidence of DW-1 Amardev Singh who was one of the attesting witnesses to the Will executed by Harbans Singh in

favour of defendants 2, 3 and 5, the Courts below held that the subject Will stood established by examining one of the attestors to the Will.

Ultimately, the suit filed by the plaintiff Sukhvir Kaur was dismissed by the trial Court and the appeal preferred by the 1st defendant Joginder Singh

as against that judgment was also dismissed.

Learned senior Advocate appearing for the appellant Joginder Singh would vehemently submit that the Will was not established in terms of

Section 68 of the Evidence Act. 1st defendant Joginder Singh was not called upon to challenge the Will dated 21.3.1988 alleged to have been

executed by his father as the same was projected by the co-defendants, namely, 2nd, 3rd and 5th defendants. In the competent suit separately

filed by Joginder Singh, the Will was duly challenged but none of the attesting witnesses was examined by the propounders of the Will. Therefore,

it is his submission that a substantial question of law will have to be formulated as to whether the subject Will was proved in terms of Sections 68

and 69 of the Evidence Act.

Learned counsel appearing for the respondent-caveators would submit that the Will has been duly proved by examining DW-1 Amardev Singh.

Further, there was no evidence to establish that the suit property was ancestral coparcenary property of the Joint Hindu Family. Both the Courts

below have rightly taken a decision and dismissed the suit, he would submit.

It is found that the 1st defendant Joginder Singh who is the appellant herein, has virtually admitted in his written statement the execution of the

Will dated 21.3.1988 by Harbans Singh bequeathing his property in favour of his sons, namely, 2nd and 3rd defendants and his erstwhile wife-5th

defendant in the suit. He had also disputed the averment in the plaint made by the plaintiff that the suit property was an ancestral coparcenary

property of the Joint Hindu Family. Under such circumstances, 1st defendant cannot now turn around and challenge the Will admitted by him. But

as per Section 68 of the Evidence Act even if opposite party admits execution of the Will, the Will has to be independently proved by examining at

least one of the attesting witnesses to the Will. In the instant case, DW-1 Amardev Singh has categorically deposed that the Will was executed by

Harbans Singh in his presence and also in the presence of another attesting witness. Both of them have subscribed their signatures after witnessing

execution by Harbans Singh who also witnessed their attestation. In my considered view, the Will has been proved in terms of Section 68 of the

Evidence Act.

No suspicious circumstance surrounding the execution of the Will was projected by the plaintiff or the 1st defendant who is the appellant herein.

There is nothing on record to indicate that there was any suspicious circumstance surrounding the execution of the Will.

The evidence of DW-2 Kamaljit Singh would go to establish that in fact the 1st defendant Joginder Singh was residing in Canada and therefore,

5th defendant Lakhbir Kaur lived along with her sons, namely, 2nd and 3rd defendants, under the care and custody of the testator Harbans Singh

till his death and the last rites of Harbans Singh were performed only by them. No wonder, Harbans Singh chose to execute the Will dated

21.3.1988 bequeathing the subject property in favour of 2nd, 3rd and 5th defendants, discarding his son and daughter.

There is no evidence on record to establish that the subject property was the ancestral coparcenary property. The property being self-acquired

property of Harbans Singh, he had got the right to execute the Will. It is to be noted that the registered Will was not challenged during the life time

of Harbans Singh. In view of the above, I find that there is no merit in the appeal. No substantial question of law also has arisen for determination in

the present appeal. Therefore, the appeal stands dismissed.