Ratta Singh & Ors. v. Sucha Singh & Ors.

Mr. Premjit Kalia, Advocate for the appellants. Rakesh Kumar Garg, J. CM No.714-C of 2010 For the reasons mentioned in the application, delay of 96 days in refiling this appeal is condoned. CM stands disposed of. RSA No.219 of 2010 This is defendants' second appeal challenging the judgment and decrees of the Courts below whereby suit filed by plaintiff-Piar Kaur for declaration to the effect that she was owner in possession of the suit land and Will dated 23.4.1983 allegedly executed by Sh. Kharak Singh (since deceased) was illegal, null and void, was decreed and she was held entitled to joint possession of the suit land to the extent of her share. ] The plaintiff-respondent filed the present suit alleging that she was owner in possession of the suit land to the extent of 1/4th share and the Will dated 23.4.1983 executed by Kharak Singh was illegal and not binding on her rights. Kharak Singh, whose inheritance is in dispute, was the father of the plaintiff as well as of defendants No.1 to 3. Defendants RSA No.219 of 2010 (O&M) 2 No.4 to 7 are sons of defendant No.1. Kharak Singh was owner in possession of the suit land and died intestate. After his death, his legal representatives inherited the suit land to the extent of 1/4th share each. The alleged Will propounded by defendants No.1 and 2 in favour of defendants No.4 to 10 was illegal, null and void and the same was forged by defendants No.1 and 2 in order to deprive the plaintiff of her legal rights in the suit land. Mutation No.219 in favour of defendants No.4 to 10 was sanctioned at the back of the plaintiff. It was the further case of the plaintiff that she was owner in possession of the suit land to the extent of 1/4th share and in case she was not proved to be in possession. It may be apt to notice that during the pendency of the suit, plaintiff-Piar Kaur died and in her place, her legal representatives i.e. present respondents No.1 to 6 were brought on record. Upon notice, defendant No.4 to 7 appeared and filed written statement raising various preliminary objections. On merits, the averments made in the plaint were denied. It was denied that Kharak Singh was father of the plaintiff. It was further stated that she was not related to Kharak Singh and she had no right, title or interest in the suit land. The will dated 23.4.1983 was legal and valid. Defendants No.4 to 7 were owners of the suit land to the extent of 3/4th share. Remaining 1/4th share was owned by defendants No.8 to 10. Mutation No.219 was sanctioned in favour of defendants No.4 to 10 on the basis of Will dated

23.4.1983. The plaintiff was not entitled to any portion of the suit property and she never asserted her rights for the last 20 years. Dismissal of the suit was prayed for. The plaintiff filed replication denying the averments made in the written statement and reiterating the contents of the plaint. Parties led evidence in support of their respective claims. RSA No.219 of 2010 (O&M) 3 After hearing learned counsel for the parties, the trial Court held that the respondents had failed to prove the Will dated 23.4.1983 allegedly executed by Kharak Singh and thus, issue No.2 was decided against them and the plaintiff through her LRs was held entitled to declaration that she was owner in possession of the suit land to the extent of 1/4th share and in view of the findings, suit was decreed with costs. Not satisfied with the aforesaid judgment and decree of the trial Court, defendants No.4 to 7 filed an appeal before the Lower Appellate Court which was also dismissed vide impugned judgment and decree dated 9.12.2008.While dismissing the appeal, the Lower Appellate Court affirmed the findings of the trial Court with regard to the Will in question and held that the defendant-appellants failed to prove the execution of the Will and the same was surrounded by suspicious circumstances. The findings of the trial Court on issue No.9 with regard to limitation was also held to be in favour of the plaintiff-respondents. It is relevant to point out that no argument was raised by the appellants on the remaining issues. Still not satisfied, the appellants i.e. defendants No.4 to 7 have approached this Court by filing the instant appeal challenging the judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the Courts below have misread and misappreciated the evidence adduced by the parties and the judgment and decrees of the Courts below are liable to be set aside being perverse. According to the learned counsel for the appellants Will in question stands proved in accordance with law and there were no suspicious circumstances pertaining to the execution of the Will and the same cannot be discarded merely on the ground of few discrepancies. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law RSA No.219 of 2010 (O&M) 4 arise in this appeal: “(i) Whether the Courts below have misread and misappreciated the evidence adduced by the parties? (ii) Whether a suit on the basis of title can be filed beyond a period of 3 years when the inheritance opened? (iii) Whether the Will which was registered posthumously can be given weightage?” I have heard learned counsel for the appellants and perused the impugned judgment and decrees. It is a matter of record that Kharak Singh died on 18.5.1984 whereas the Will in question was got registered after his death on

24.3.1994. No doubt, the appellants examined DW-1, Piara Singh, who scribed the Will Ex.D-1 and also examined DW-2 Balbir Singh and DW-3 Lakhwinder Singh one of the defendants to prove the Will; however, the Courts below on the basis of appreciation of evidence recorded a concurrent finding that the Will was completely surrounded by suspicious circumstances as the Will did not see the light of the day for more than 10 years. The Will was not scribed by a regular deed writer. The Will does not find mention of the wife of the deceased, if she was alive or not. The attesting witness Balbir Singh was related to Balwant Singh, a beneficiary of the Will and even the testimonies of DW-1 and DW-2 did not inspire confidence. The propounder of the Will failed to explain as to why the Will was kept hidden for such a long time for 10 years. In view of the aforesaid suspicious circumstances cited above, the concurrent findings of the Courts below discarding the Will in question cannot be found faulted with. It is well settled that this Court while exercising its jurisdiction under Section RSA No.219 of 2010 (O&M) 5 100 CPC will not record a different finding of fact on reappreciation of the evidence, if the finding recorded by the Courts below is based on appreciation of evidence and there is no perversity. Thus, for the reasons recorded, I find no merit in this appeal. No substantial question of law as argued by the learned counsel for the appellants arises in this appeal. Dismissed. May 17, 2010 (RAKESH KUMAR GARG) JUDGE