High Court of Punjab And Ha D Haryana
Case Details
Page 1 of 12 12 (cid:1) IN THE HI E HIGH COURT OF PUNJAB AND HA D HARYANA AT CHANDIGARH 115 Dharambir RSA-567-2023 (O&M) Date of decision: 04.02.2025 ...Appellant(s) ...Respondent(s) Braham Parka arkash & Others Vs. CORAM: HON’BLE MS. JUSTICE NID NIDHI GUPTA Present:- Mr. Rupinderjit Singh, Advo Mr. Anand K. Bishnoi, Advo for the appellant. Advocate for dvocate *** NIDHI GUPTA, CM-2247-C-20 PTA, J. 2023 Present application unde nder Section 151CPC is filed seeking condo ndonation of delay of 423 days in re re-filing the appeal. The only ground on wh an which condonation of such an extraordinary ary and inordinate delay of 423 da in days is sought, is mentioned in Para 2 of the p he present application, which reads ads as under:- “2. That the revision was filed wit ut d within time however registry put some objections on the file and the and brief got misplaced from the office of counsel and revision co per n could not be refilled in proper time.” ason The above cited reason is vague and does not constitute suff sufficient cause to condone extrao traordinary delay of 423 days in re-filing the ap e appeal. Nothing has been mentio ntioned as to why, and how the brief got mis misplaced, or on what date it it was found again. Present application acc n accordingly stands dismissed. SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) MAIN CASE The plaintiff is in second ap d appeal against the concurrent Page 2 of 12 12 (cid:1) judgments and s and decrees of the learned Court ourts below whereby the suit of
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the plaintiff tiff for declaration with consequ equential relief of permanent injunction and and joint possession, has been dis n dismissed by the learned Civil Judge, Junior nior Division, Gurugram vide jud judgment and decree dated 31.05.2016; ; which has been duly affirmed ed by the learned Additional District Judge, dge, Gurugram vide judgment date dated 04.03.2020 dismissing the appeal filed by d by the plaintiff. 2. The appellant shall herei he ereinafter be referred to as the ‘plaintiff; and and the respondents as the ‘defenda endants. 3. Brief facts of the case of th tiff f the plaintiff are that the plaintiff and the defen efendants No.1 to 3 are brothers an re rs and defendants No.4 and 5 are their sisters. T rs. Their father namely Siri Chand of nd was co-owner in possession of agriculture lan e land bearing khewat khata No.1 tal No.111/119 rectangle No.5 total measuring 23 23 kanal 9 marla to the extent ent of 1/6th share; khewat/khata ata No.110/118 re 8 rectangle No.6 measuring 9 kan of kanal 12 marla to the extent of 1/6th share; kh e; khewat/khata No.107/115 rectan 31 ctangle No.5 and 6 measuring 31 kanal 12 marl marla to the extent of 1/6th share ue hare situated within the revenue estate of villag village Mewka Tehsil and District Gu elf ct Gurgaon. The said land was self acquired prop roperty of the father of parties to ed s to the suit as he had purchased the same on h on his own. The father of the parti ill parties to the suit executed a Will bearing no. 32 o. 328 dated 04.08.2009, registered ar, ered in the office of Sub Registrar, SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Gurgaon. The The defendant no. 2 and son of d Page 3 of 12 12 (cid:1) sh of defendant no.1 namely Rajesh kumar were th re the witness of the same. At the of the time testator was 85 years of age. On 18.08 8.08.2010, father of the plaintif nd intiff and defendants died and mutation no. 1 no. 1531 was sanctioned on the bas at basis of aforesaid Will vide rapat Rojnamcha no a no. 829 dated 31.08.2010. It is alle o 3 s alleged that defendants no.1 to 3 had evil eyes yes on the property therefore, the aid , they got cancelled the aforesaid Will vide docu document bearing no. 833 dated he ted 21.01.2010, registered in the office of Sub ub Registrar, Gurgaon despite th he e the fact that at that time the executants wa was not in position to execute th at e the document. It is alleged that aforesaid doc document was the result of undu of ndue advantage. On the basis of document of c of cancellation of Will, mutation n as n no. 1532 dated 15.10.2010 was sanctioned an d and mutation no. 1531 was canc at cancelled. It is also pleaded that under a consp onspiracy defendants no.1 to 3 h se 3 had also got executed release deed in their f eir favor. It is alleged that the docum ed ocument bearing no. 33056 dated 25.02.2011, w 1, was registered in violation of p ct, of provisions of Registration Act, Indian Stamp amp Act and notification bearing - ring memo no. 619-STR-1-2000- Special Chand handigarh dated 03.02.2000, issu nt issued by Haryana Government because prope roperty in dispute was not the an as ancestral property rather it was self acquired red property. The plaintiff requeste ain ested defendants time and again not to assert t ert their right on the basis of impu did mpugned documents but they did not pay any he y heed. Hence, the present suit. 4. Upon notice, the defendan led dants put in appearance and filed written statem atement resisting the suit on vario ed arious grounds. It was contended SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) that the previo vious Will had rightly been cancell Page 4 of 12 12 (cid:1) ies ncelled by the father of the parties vide documen ment dated 21.01.2010; that fathe Siri ather of the plaintiffs namely Siri Chand was ab s absolute owner in possession of ad of the land in question and had every right to t to dispose of the same in any m ed y manner; that the release deed dated 24.02.2 .02.2011 had rightly been execut nd ecuted by defendants No.4 and 5/sisters in fa n favour of defendants No.1 to 3/ in o 3/brothers. Other allegations in the plaint wer were denied and dismissal of the s ion he suit was prayed for. Replication was filed by t by the plaintiff controverting the a en e assertions made in the written statement and and reiterating the averments mad made in the plaint. 5. On the basis of pleadings o es ngs of the parties, following issues were framed ed vide order dated 20.02.2015:- “1. Whether the plaintiff is entitl to ntitled for relief of declaration to the effect that the alleged release ted lease deed vasika no. 33056 dated 24.02.2011 and mutation no. 15 11 . 1579 sanctioned on 18.03.2011 and WILL vasika no. 833 dated of ted 22.01.2010 and mutation of inheritance no, 1532 dated 15.1 nd 15.10.2010 are illegal, null and void, nonest and without jurisdicti sdiction as prayed? OPP 2. Whether the plaintiff is a join the joint owner in possession of the suit property? OPD 3. Whether the suit of the plaint the laintiff is non maintainable in the present form? OPD 4. Whether the plaintiff has no loc ion o locus standi and cause of action to file the present suit? OPD 5. Whether the suit is bad for m of or mis joinder and non joinder of necessary parties? OPD 6. Whether the plaintiff is estoppe uct opped by his own act and conduct for filing the present suit? OPD fo SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) 7. Relief.” Page 5 of 12 12 (cid:1) 6. On the basis of pleading dings and oral & documentary evidence addu adduced by the parties, issues No.1 o.1 and 2 were decided against the plaintiff a iff and in favour of the defendan ndants; issues No.3 to 6 were decided again gainst the defendants and in favour our of the plaintiffs. Accordingly, vide judgment ent and decree dated 31.05.2016, 16, learned trial Court dismissed the suit. The p he plaintiff went in appeal before th re the learned Additional District Judge, Gurugr rugram which vide judgment and and decree dated 04.03.2020 dismissed the the appeal and affirmed the impu impugned judgment and decree dated 31.05.20 5.2016. Hence, the present second ond appeal. 7. Learned counsel for the the plaintiff submits that the cancellation d n deed has been procured by the the defendants from Siri Chand illegally and fr d fraudulently. Admittedly Siri Chan Chand was of unsound mind and suffering from from many old-age diseases; he w e was in hospital from 2009 to 2010; he was as an illiterate person. It is submitt mitted that it is only with a view to get the sha share of the plaintiff that the defen efendants No.1 to 3 got the said cancellation d d. n deed executed from Siri Chand. 8. It is submitted in Will Vasik asika No. 328, it was mentioned by father of th of the parties that he was 85 year ears old and used to remain ill, and wanted t ed to execute the will in favor of r of his all sons in equal share including othe other movable and immovable p le properties as executant was happy with th h the service towards him of his so is sons and he had already spent the amount o nt of share pertaining to his daug aughters on their wedding and SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 6 of 12 12 (cid:1) gifts etc. Wh Whereas in Will vasika no. 833 833 dated 22.01.2010, it was mentioned tha d that deceased Siri Chand was not not happy with the behavior of his all sons th s that's why he executed the said said alleged cancelation of Will vide vasika no a no. 833 dated 22.01.2010, whic hich creates suspicious on the alleged vasika sika no. 833, as what was the occ occasion with the deceased Siri Chand to men mention wrong facts in earlier Will ill vasika no. 328, which shows that Will vasi vasika no. 833 is outcome of frau fraud of respondents with Siri Chand. It is ac is accordingly prayed that the impug pugned judgments and decrees of the learned ned Courts below be set aside. 9. 10. No other argument is made ade on behalf of the plaintiff. I have heard learned co counsel for the plaintiff and perused the ca e case file in great detail. 11. The plaintiff has laid claim laim to his share in the property on the basis o sis of Will no.328 dated 4.8.2009 ex executed by Siri Chand, father of the parties rties which was in favour of the p he plaintiff and the defendants. However, adm admittedly, the said document was was cancelled by Siri Chand vide Cancellation d on deed bearing Vasika No.833 date dated 21.01.2010 (Ex.P4), as per which Will n ill no.328 dated 4.8.2009 stood c od cancelled and no Will was executed in fa in favour of any of heirs as it was sta s stated in document that till his death he shall shall remain the owner in possessio ssion. Therefore, after the death of Siri Chand hand, who died intestate, muta utation of inheritance dated 22.09.2010 (E 0 (Ex.P3) has been rightly sanction tioned in favour of his sons and SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 7 of 12 12 (cid:1) daughters. As As such, plaintiff cannot lay claim laim to his share on the basis of the said Will dated 4.8.2009. 12. However, it is the content tention of the plaintiff that the said Cancellat ellation Deed is not valid as it was e as executed by Siri Chand in an unsound state tate of mind; and due to the pressu ressure exerted upon him by the defendants, in in particular defendants No.1 to 3 to 3, due to the ill-will borne by them towards ards the plaintiff. But the alleged m mental instability of Siri Chand was not prove roven on record. The plaintiff has has examined PW1 the record keeper of hosp hospital and during his testimony he y he has deposed that Bill Ex.P8, and Discharge arge Summary Ex.P9 of Siri Chand are true. Thus, on the basis of Ex.P8 and P9 P9 it cannot be held that exec executant was not capable of executing can cancellation document. Moreov reover, the plaintiff has not examined any any doctor to prove that late Siri Ch ri Chand was ill, of unsound mind and out of h of his senses at time of executi cution of document made on 21.01.2010.Th The plaintiff has asserted that fro from photograph on impugned document dat dated 21.01.2010 it is clear that ex at executant was not in fit state. However, the the same is not tenable as ex executant was sitting during photograph an h and this does not lead to conclu onclusion that he was not in fit ind. state of mind 13. Accordingly, the validity o ty of Cancellation Deed bearing No.833 dated ted 22.01.2010 was upheld. In respe espect of the Cancellation Deed, it may also be o be pointed out that DW4 Hem Ra Raj Advocate has deposed that he drafted the the Cancellation Deed (Ex.P4) and and signed as attesting witness SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) on the asking ing and wish of Siri Chand. The cont contents of Cancellation Deed of Will were expl explained to Siri Chand and he thum thumb marked it after admitting Page 8 of 12 12 (cid:1) contents to be o be true. PW3 Ashok Kumar, ARC ARC produced cancellation deed of Will dated ted 22.01.2010 and proved its cop copy as Ex.PW3/A. A perusal of same shows th ws that it has been duly registered b red by Sub-Registrar and there is an endorseme ement that it was read over and e nd explained to the parties and they admitted tted the same to be correct. 14. It was also contended by t by the plaintiff, that defendants No.4 and 5 w 5 were not competent to execute cute release deed in favour of defendants N No.1 to 3 as property was not not ancestral but self-acquired. However, con consequent to the Cancellation De n Deed, the sisters /defendants No.4 and 5 be 5 became absolute owners in poss possession of their share out of suit property a rty and plaintiff has no concern in in land inherited by them after the death of of their father. The validity of of Release Deed can only be challenged by by defendants No.4 and 5 and not not by plaintiff. Merely because there is defici eficiency in stamp fees does not ips t ipso facto makes release deed illegal. Conse onsequently, mutation bearing N g No.1579 dated 18.03.2011 sanctioned in d in favour of defendants No.1 to 3 i o 3 is also valid. 15. The relevant findings as co s contained in Para 13 and 14 of the judgment ent dated 04.03.2020 passed by t by the learned lower Appellate Court, are as u as under:- “13. Burden to prove that the the cancellation deed Ex.P4 is illegal and not binding on the plai plaintiff. It is alleged that it was got executed when plaintiffs fa fs father was ill, not in sound SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 9 of 12 12 (cid:1) disposing mind, was unconsci nscious and unable to talk. However, no cogent and trustw trustworthy evidence has been produced by the plaintiff to pr to prove the same. PW1 Amit Kumar, record Keeper produced ced medical bill dated 8.5.2014 Ex.P8 with regard to Siri Chand, and, issued by Kalyani Hospital and Ex.P9 is his discharge summa mmary. Perusal of the discharge summary reveals that Siri Cha Chand was having breathing difficulty, fever, loose motion 3 n 3-4 times and was an old case of COPD, otherwise, he was co s conscious and oriented. This discharge summary is dated ated 2.8.2010 whereas the cancellation deed Ex.P4 was ex s executed on 22.1.2010. It is subsequent to the execution of t of the cancellation deed. Even otherwise, there is nothing on rec n record to show that Siri Chand was mentally incapacitated an d and unable to execute the cancellation deed. So, it is not es ot established on record that Siri Chand was not possessed of dispo disposing mind or was otherwise under pressure/coercion from any any corner. As such Will dated 4.8.2009 (Ex.P2) in favour of plain plaintiff and defendants No.1 to 3 stands legally cancelled by Siri C Siri Chand vide cancellation deed Ex.P4. Therefore, after death ath of Siri Chand, who died intestate, mutation of inheritance tance dated 22.9.2010 Ex.P3 has been rightly sanctioned in favour o our of his sons and daughters. 14. After sanction of mutation of n of inheritance dated 22.9.2010 Ex.P3 defendants No.4 and 5 h 5 have executed release deed Ex.P7 of their share in favour of ur of defendants No.1 to 3. The share of defendants No.4 and 5 nd 5 exclusively belong to them because they having inherited the d the property from their father became absolute owners of the the same under section 14 of Hindu Succession Act, 1925. The p The plaintiff cannot question the authority of defendants No.4 an .4 and 5 to execute the release deed. The suit was rightly dismis ismissed by learned lower Court SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) and there is no illegality or infi r infirmity in the judgment and decree.” Page 10 of 12 12 (cid:1) 16. Even the application filed filed by the plaintiff before the learned lower wer Appellate Court for leading add additional evidence was rightly dismissed by by the learned Additional Distric istrict Judge, Gurugram for the reasons as cite s cited in Para 17 of the judgment da nt dated 04.03.2020 of the ld. 1st Appellate Cou Court. 17. Elaborate findings of the le he learned trial Court in respect of the content tentions raised by the plaintiff are are contained in Para 14 of the impugned judg judgment dated 31.05.2016, which hich is as under:- “14. In the present case, it is adm s admitted case of the parties to the suit that late Sh. Siri Chan Chand was absolute owner in possession of the suit property an ty and same was his self acquired property. It is also admitted case case of parties to the suit that the plaintiff and defendants are r are real brothers and sisters. The dispute between the parties is s is regarding the execution of document dated 22.01.2010 vid vide which the WILL bearing Vasika No. 328 dated 04.08.200 8.2009 has been cancelled and 1. release deed dated 24.02.2011. The execution of WILL dated 04.0 04.08.2009 is also not disputed by the defendants as they have have admitted the execution of document dated 22.01.2010 vide vide which the previous WILL has been cancelled. The perusal of WI of WILL dated 04.08.2009(Ex. P2) shows that same was executed ed by late Sh. Siri Chand in favor of his 4 sons namely Braham aham Prakash, Partap Singh, Dharambir and Subhash Singh. In gh. In that Will no property was given by the testator to his daug
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daughters namely Smt. Santosh SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 11 of 12 12 (cid:1) and Smt. Savitri. Thereafter, Lat , Late Sh. Siri Chand had also executed a document dated ted 22.01.2010 and same is registered document and by vir y virtue of that Will had been cancelled and it was stated in the the document that till his death he shall remain the owner in poss possession of the land in dispute. From the perusal of document d ent dated 22.01.2010, it reveals that by virtue of the same, W e, Will dated 04.08.2009, was cancelled but no Will was execu executed in favor of any of the heirs. The plaintiff has challenge lenged the impugned document bearing Vasika No. 833 dated 22. d 22.01.2010 on the ground that same was not executed by the exe e executant out of his free will as he was subjected to undue influe nfluence and he was of unsound mind, ill and out of his senses. In o . In order to probe the same, the plaintiff has examined PW-1, t 1, the Record Keeper of the hospital and during his testim stimony he has deposed that document Ex. P-8 and Ex. P-9 a 9 are true as per the record. These documents are bill and nd discharge summary of the patients (Late Sh. Siri Chand). The ). The plaintiff has not examined any doctor to prove the fact tha that late Sh. Siri Chand was ill, unsound mind and out of his sen senses at the time of execution of document made in 21.01.2010 2010 and merely on the basis of Ex. P-8 and Ex. P-9 it cannot be h be held that the executent was not capable of executing the do e document as alleged. During arguments learned counsel for p for plaintiff has also pointed out that from the photograph on i on impugned document dated 21.01.2010, it is clear that the ex e executants was not in fit state of health but this contention is no is not tenable for the reason that merely because the executan utant was sitting during his photograph does not lead to to the conclusion that the executants was not in fit state of te of mind. So, I find no force in the contentions of the learned c ed counsel for the plaintiff and SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1) Page 12 of 12 12 (cid:1) thus the document bearing no. 833 dated 04.01.2010 cannot be declared as null and void. As su As such mutation no.1532 dated 15.10.2010 cannot be declared as ed as null and void.” 18. Before parting it may als also be pointed out that the present appea ppeal is of the year 2023 and notic otice has not yet been issued in the same as it as it has been adjourned either at re at request of or non-appearance of learned c d counsel for the appellant o t on 03.03.2023, 12.04.2023, 17.05.2023, 18 3, 18.12.2023, 23.04.2024 and 13.09 3.09.2024. 19. In view of the above di discussion, I find no ground is made out to to interfere in the well-reasoned ed judgments of the ld. Courts below. The pr present appeal is accordingly, dis dismissed on grounds of delay as well as on m on merits. 20. Pending application(s) if an
Decision
if any also stand(s) disposed of. 04.02.2025 Sunena (Nidhi Gupta) Judge Whether spea Whether repo peaking/reasoned: eportable: Yes/No Yes/No SUNENA 2025.02.07 14:26 I attest to the accuracy and integrity of this document (cid:1)