Nirankar Singh vs Jatinder Singh

Rakesh Garg, J.—This is defendants'' second appeal challenging the judgment and decree of the trial Court dated 15.3.2011, decreeing the suit in favour of plaintiff-respondent no. 1 holding that he is entitled to 1/3rd share of the suit land and is further entitled to joint possession of the suit land to the extent of 1/3rd share as per the provisions of Indian Succession Act. Further challenge has been laid to judgment and decree dated 9.7.2013 of the first appellate Court, whereby appeal of defendants No. 1 and 2 against the judgment and decree of the trial Court was dismissed.

As per the averments made, plaintiffs/respondents no. 1 and 2 sought joint possession of 1/3rd share of the suit land owned by Jagir Singh, deceased and also sought declaration that mutation of inheritance of Shri Jagir Singh was sanctioned wrongly and illegally in favour of the appellants, further seeking permanent injunction restraining the appellants from alienating the suit land further in any manner.

It was averred in the plaint that the suit land was ancestral in the hands of Jagir Singh and they were coparceners in the suit land. Jagir Singh was having three sons, namely, Nirankar Singh, Satkar Singh (defendants no. 1 and 2) besides Balkar Singh (since deceased) father of plaintiff-respondent no. 1 Jatinder Singh and husband of plaintiff-respondent no. 2 Harwant Kaur. Said Balkar Singh pre-deceased Jagir Singh. Jagir Singh was the karta of the joint hindu family. Nirankar Singh and Satkar Singh along with plaintiffs and Varinder Singh, deceased son of Balkar Singh were coparceners therein and as such, plaintiff no. 1 and his deceased brother Varinder Singh had a right, title and interest in the suit land belonging to the coparceners in joint Hindu family by birth. Jagir Singh during his lifetime had executed a registered and valid Will dated 30.6.1997 bequeathing 1/3rd share in favour of plaintiff-respondent no. 1 and his brother Varinder Singh and the remaining two shares to defendants no. 1 and 2. Varinder Singh died a natural death on 23.8.2002. However, defendants no. 1 and 2 got registered a false case of murder against plaintiff no. 2 in this case. Plaintiff no. 2 faced trial and was acquitted by the Court of Sessions Judge, Amritsar on 31.10.2003. Defendants no. 1 and 2 also forged another Will of Jagir Singh who died on 15.12.2002. In fact, he had not executed any other Will, as he was having love and affection and full sympathy with the family of pre-deceased son Balkar Singh. Moreover, Jagir Singh had lost his sons two years before his death and thus, the second Will propounded by defendants no. 1 and 2 was not outcome of free and sound disposing mind of Jagir Singh. Taking advantage of respondent no. 2 being in jail, appellants no. 1 and 2 got mutation sanctioned in their favour regarding inheritance of Jagir Singh on the basis of second Will vide which plaintiffs were completely deprived from inheriting the share of property of Jagir Singh. Hence, the suit was filed.

Upon notice, defendants appeared and filed written statement contesting the suit, raising various preliminary objections. It was stated that plaintiffs had got no right, title or interest in the suit property. It was further denied that the suit land was ancestral. It was submitted that the suit property was self-acquired property of Jagir Singh. However, it was admitted that Jagir Singh was having three sons and his son Balkar Singh, predecessor-in-interest of plaintiffs, had pre-deceased him. It was further denied that Jagir Singh along with his sons constituted Joint Hindu Family property. It was further submitted that Balkar Singh died in the year 1993. It was admitted that the first Will was executed on 30.6.1997 whereas the second Will was executed on 20.9.2002 in favour of the appellants in a sound disposing mind and thus, they became owners of the suit land. It was the further case of the defendants that respondent no. 2 entered into an agreement of compromise dated 20.5.2002, vide which she admitted that she has got no right, title or interest in the property of Jagir Singh. Refuting the remaining allegations, the defendants prayed for dismissal of the suit.

Plaintiffs filed replication, controverting the allegations made in the written statement and reiterating the averments made in the plaint.

On the basis of pleadings of the parties, following issues were framed:-

1) Whether the suit land was owned by Pal Singh, Jagir Singh and Raghbir Singh S/o. Balwant Singh ? OPP

2) Whether suit land ancestral coparcenary property? OPD

3) Whether Jagir Singh during his lifetime constituted a joint Hindu Family with his sons? OPP

4) Whether Jagir Singh during his lifetime executed registered will on 30-06-1997? If so, its effect. OPP

5) Whether plaintiffs are entitled to 1/3 share in the land owned by Jagir Singh ? OPP

6) Whether plaintiffs are entitled to joint possession of the suit land to the extent of 1/3 share? OPP

7) Whether Jagir Singh executed a legal and valid Will on 20.09.2002 in favour of defendants Nos. 1 and 2 in sound disposing mind? OPD

8) Whether suit is not maintainable? OPD

9) Whether the plaintiffs have no cause of action to file the suit? OPD

10) Whether plaintiffs are estopped by their own act and conduct from filing the suit? OPD

11) Relief.

Parties were afforded adequate opportunities to lead evidence in support of their respective claims.

After hearing counsel for the parties and appreciating the evidence on record, the trial Court decided issue no. 1 in favour of the plaintiffs whereas issues no. 2 and 3 were decided against the plaintiffs and in favour of the defendant, issue no. 4 was decided in favour of the plaintiffs and against the defendants, issues no. 5 and 6 were decided in favour of plaintiff no. 1 and against the defendants holding that plaintiff No. 1 was entitled to 1/3rd share on the basis of registered Will dated 30.6.1997, however, plaintiff no. 1 was not held to be entitled to joint possession of the suit land to the extent of 1/3rd share. Plaintiff no. 2 was not held to be entitled to any relief. Issue no. 7 became redundant in view of the statement made by defendants whereas issues no. 8, 9 and 10 were decided against the defendants. As a cumulative effect of findings on the issues, the suit of the plaintiffs was decreed in favour of plaintiff no. 1 holding him entitled to 1/3rd share on the basis of registered Will dated 30.6.1997 and for joint possession of the suit land to the extent of 1/3rd share u/s 106 of the Indian Succession Act.

Aggrieved from the aforesaid judgment and decree of the trial Court, defendants no. 1 and 2 preferred an appeal before the first Appellate Court which was also dismissed. While dismissing the appeal, the lower Appellate Court observed as under:-

After hearing rival contention, I find that defendants have categorically admitted the execution of will dated 30-06-1997 by Jagir Singh in the written statement, and in the will propounded by them dated 20-09-2002, the details of earlier will dated 30-06-1997 are mentioned. Defendants No. 1 and 2, who, are beneficiaries under earlier will dated 30-06-1997 and the will propounded by them dated 20-09-2002, categorically stated that they, admit the will dated 30-06-1997 and would not claim any right on the basis of will dated 20-09-2002, and the trial court passed judgment accordingly. Now, it does not lie in their mouth to base their claim again on will dated 20-09-2002 and denying execution of will dated 30-06-1997. They are estopped by their art and conduct from filling the present appeal. The authorities referred to by learned counsel for the appellants are not applicable to the facts of this case, in view of the reasons mentioned supra. Similarly, authority Kartar Singh and Others Vs. Giano and Others, by Hon''ble Punjab 86 Haryana High Court, wherein it was observed that mere registration of will does not prove its execution and without examination of attesting witnesses, simply on the statement of scribe and Registration Clerk, execution of will cannot be proved does not find application to the facts of the present case. However, the plaintiffs could not establish on record that property in the hands of Shri Jagir Singh was his ancestral coparcenary property or that they had acquired interested in it by birth. As rightly observed by the trial court, no expert were got prepared by the plaintiffs to show that Shri Jagir Singh had acquired the suit land from his forefather by natural inheritance, as such, nature thereof in his hands was ancestral coparcenary property. Further more there is no cogent and convincing evidence on file to show that Jagir Singh constituted joint Hindu Family alongwith his sons of their family members or that he was Karta thereof. Therefore, such assertions by the plaintiffs are not established, rather it comes out that the land in name of Jagir Singh was his self acquired property and he could very well executed a will in respect thereof The verdict by trial court on all the issues is correct and is hereby affirmed. There is no illegality and infirmity in the judgment passed by the learned trial court, rather the same is based upon proper appraisal and appreciation of evidence and correct interpretation of law. I do not see any illegality or infirmity in the impugned judgment and decree, those are upheld, whereas the appeal is found to be without merits and stands dismissed with costs. Decree sheet be prepared. Lower court record be returned forthwith and appeal be consigned to the record room.

Still not satisfied, defendants no. 1 and 2 have filed the instant appeal submitting that following substantial questions of law arise in this appeal for consideration of this Court:-

I) Whether there is sufficient evidence on record to hold that respondent no. 1 & 2 are entitled for the relief of joint possession?

II) Whether the respondent no. 1 & 2 are entitled to any share especially when subsequent Will dated 20.09.2002 had been executed by Late Jagir Singh and same has been proved by leading cogent evidence?

III) Whether the finding of the Courts below are perverse and against the record?

I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.

Learned counsel for the appellants has vehemently submitted before this Court that the Courts below while decreeing the suit have observed that appellants have admitted the Will dated 30.06.1997 and having no objection if the property goes to the share of respective party as per their share in view of Will dated 30.06.1997 and will not press for Will dated 20.09.2002. It has been submitted that appellants never made any such statement in their evidence or in their pleading. Moreover their case is based on Will dated 20.09.2002 and they have led evidence in this respect and examined DW-2 Avtar Singh witness of above Will and DW3-Baljinder Singh Mehal and DW-4 Parkash Singh Lamberdar to prove the above mentioned Will. So there is no question for making such statement in the court. The trial court as well as first Appellate Court have not taken into consideration this aspect of the matter while dealing with the case. Thus, the Courts below have illegally ignored the material evidence, which is on record of the case. Thus, the judgments and decrees of the Courts below are liable to be set aside.

However, the submission made before this Court is palpably false, as admittedly, the appellants as well as their counsel made a statement before the trial Court that they will not claim any property on the basis of the second Will dated 20.9.2002 and they admitted the Will dated 30.6.1997. The argument raised before this Court is in fact against the judicial record and the same cannot be permitted to be raised. Reliance can be placed on the judgment of Hon''ble the Supreme Court in the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, Moreover, there is nothing on record to controvert the aforesaid judicial record.

In view thereof, this appeal is without any merit.

Thus, no substantial question of law arises in this appeal.

Dismissed.