Gurnam Kaur v. Gurdev Kaur & Anr.

Hon'ble Mr. Justice L.N. Mittal Present : Mr. Manjit Singh Uppal, Advocate, for the appellant L.N. Mittal, J. (Oral) Defendant Gurnam Kaur having remained unsuccessful in both the courts below has approached this Court by way of instant second appeal. Suit was filed by respondents Gurdev Kaur and Gurcharan Singh. Admittedly, Bhag Singh was owner in possession of the suit land. Defendant-appellant Gurnam Kaur is widow of Bhag Singh whereas plaintiff-respondent no. 1 is sister of Bhag Singh and plaintiff-respondent no. 2 is son of another sister of Bhag Singh. Plaintiffs' case is that about 30 years before filing of the suit, defendant had left the matrimonial home and started living with her parents in District Mansa and had completely withdrawn from the society of her husband Bhag Singh. Plaintiffs had been serving said Bhag Singh. Regular Second Appeal No. 600 of 2009 -2- Accordingly, Bhag Singh executed registered Will dated 16.2.1993 bequeathing the suit property in favour of the plaintiffs in equal shares. Bhag Singh died on 13.5.2000 and since then the plaintiffs are owners in possession of the suit land. However, defendant in connivance with revenue officials got mutation of the suit land in her favour. Revenue entries to this effect are wrong. The plaintiffs accordingly sought declaration that in view of registered Will dated 16.2.1993, the plaintiffs are owners in possession of the suit land in equal shares and the revenue entries including mutation in favour of the defendant are wrong and liable to be corrected in favour of the plaintiffs. Permanent injunction restraining defendant from illegally interfering into the peaceful ownership and possession of the plaintiffs over the suit land was also prayed. The defendant while admitting relationship of the parties with Bhag Singh denied other allegations of the plaintiffs. It was denied that Bhag Singh executed any Will in favour of the plaintiffs. It was pleaded that defendant being widow of Bhag Singh has inherited the suit land and and is owner in possession thereof. The alleged Will is forged and fabricated. Learned Civil Judge (Senior Division), Sirsa vide judgment and decree dated 7.12.2007 decreed the plaintiffs' suit. First appeal preferred by the defendant has been dismissed by learned Additional District Judge, Sirsa vide judgment and decree dated 27.10.2008. Feeling still aggrieved, the defendant has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Regular Second Appeal No. 600 of 2009 -3- Learned counsel for the appellant vehemently contended that the plaintiffs were not serving deceased Bhag Singh. Rather the defendant was residing with Bhag Singh and therefore, there was no reason to exclude the defendant from inheritance by way of impugned Will. It was contended that the defendant being widow of Bhag Singh is his sole legal heir. The contention cannot be accepted. Plaintiffs have duly proved Will dated

16.2.1993 which is registered Will. The plaintiffs have examined Sham Lal scribe of the said Will. The plaintiffs have also examined Gurjant Singh Lambardar one of the two attesting witnesses of the Will. The plaintiffs have also examined Rajiv Sharma who, as Joint Sub Registrar, registered the aforesaid Will. All the aforesaid three witnesses have proved due execution of the Will. Reason for dis-inheriting the defendant has also been specified in the Will. It has been recited in the Will that the defendant was residing separately from the testator and was not looking after him. It has also been mentioned in the Will that the plaintiffs were looking after testator Bhag Singh and therefore, Will was executed in their favour. It may be added that the Will is registered one and therefore, the same cannot be doubted because the plaintiffs have led sufficient evidence to prove it. The Will was executed more than seven years before the death of testator Bhag Singh and during this long period, Bhag Singh did not get the Will cancelled. In addition to the aforesaid, it has to be noticed that the defendant admitted in cross-examination that she was receiving old-age pension in her parental village Fatta Maluka, District Mansa since

11.1.1998 i.e. for more than two years before the death of Bhag Singh. It Regular Second Appeal No. 600 of 2009 -4- would depict that defendant was residing separately from her husband Bhag Singh. This conclusion is further strengthened by admission of the defendant that she had filed a suit against Bhag Singh in court at Mansa whereas Bhag Singh had filed a suit against her in court at Sirsa. It would depict that defendant and Bhag Singh were residing separately and they were having strained relations. Consequently, authenticity of the Will is further strengthened. Learned counsel for the appellant contended that land of Bhag Singh in one more village has not been included in the Will. However, this would not create any suspicion about the genuineness of the Will. Moreover, learned counsel for the appellant has not been able to depict that any such plea was even taken in the written statement. In any event, that land would devolve on the defendant being legal heir of deceased Bhag Singh. However, it would not create any suspicion about the genuineness of the Will. Both the courts below on appreciation of evidence have arrived at concurrent finding that execution of registered Will dated

16.2.1993 by Bhag Singh in favour of the plaintiffs is duly proved. The said finding is not shown to be perverse or illegal so as to call for interference in second appeal. There is no suspicious circumstance surrounding the Will. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is bereft of any merit and is accordingly dismissed in limine. July 05, 2010 'dalbir' ( L.N. Mittal ) Judge