Iqbal Singh and Jagdeep Singh ss/o Avtar Singh v. Gurdev Kaur & Ors.

appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the present suit for a decree of declaration to the effect that they are joint owners, in equal shares of the land in dispute, which was earlier owned by Kehar Singh (since deceased), on the basis of Will dated 22.12.1993 (Ex.P1), with a consequential relief of permanent injunction, restraining Gurdev Kaur and others respondent- defendants (hereinafter to be referred as “the defendants”) from alienating the suit land in any manner. They have also challenged the mutation No.12538 of inheritance of the estate of Kehar Singh, sanctioned by way of natural succession/inheritance.

2. Concisely, the case set up by the plaintiffs, in brief, in so far as relevant, was that Kehar Singh son of Rattan Singh was the owner of the disputed land. He executed and registered the Will (Ex.P1) in their favour to the exclusion Regular Second Appeal No.2715 of 2010 2 of the defendants. Mutation No.12538 of the estate of Kehar Singh, sanctioned by virtue of natural succession, was stated to be illegal, null, void and not binding on their rights.

3. Levelling a variety of allegations, in all, according to the plaintiffs, they are owners of the land in dispute, in pursuance of the Will (Ex.P1) and mutation of inheritance of Kehar Singh is null and void. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of declaration and permanent injunction against the defendants, in the manner indicated here-in-above.

4. The defendant Nos.1 to 4 (for brevity “the contesting defendants”) contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit, in view of pendency of previously instituted suit titled as “Gurdev Kaur vs. Avtar Singh”, in which, the same Will propounded by the plaintiffs, was involved. On merits, the contesting defendants claimed that Kehar Singh had suffered a decree in favour of his two sons namely, Avtar Singh alias Tara Singh and Hakam Singh on 26.2.1972 and as such, since then, the contesting defendants are owners of the land covered by the said decree. Kehar Singh, at the time of his death, was the owner of the land, that was left with him after the decree, which he had suffered in favour of his two sons. The mutation of inheritance of Kehar Singh was stated to have been rightly sanctioned on the basis of natural succession in respect of the land, which was earlier owned by him. It was denied that the plaintiffs were serving Kehar Singh. On the contrary, the contesting defendants used to look after him. The execution of the Will (Ex.P1) and its subsequent discovery is stated to be a concocted story, which is an attempt to dispel the suspicious circumstances that the Will has not seen the light of the day till the filing of the present suit. The case of contesting defendants further proceeds that no appeal was ever preferred by the plaintiffs against the order, sanctioning the mutation on the basis of natural succession of Kehar Singh. The will was termed to be forged and fabricated document. Regular Second Appeal No.2715 of 2010 3 Concisely, according to contesting defendants, they are owners and in possession by virtue of natural succession, the will is forged and fabricated document and the plaintiffs have no concern with the property in dispute, in any manner. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. Remaining defendant Nos.5 to 10 filed the written statement supporting the claim of the plaintiffs.

5. Controverting the allegations contained in the written statements and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case.

6. The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective stands.

7. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs, vide impugned judgment and decree dated 22.10.2007.

8. Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 16.4.2010.

9. The appellant-plaintiffs still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. That is how, I am seized of the matter.

10. Having heard the learned counsel for the appellant-plaintiffs at some length, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

11. However, the main argument of the learned counsel that once the execution and registration of the Will (Ex.P1) was proved on record, then, the suit of the plaintiffs ought to have been decreed by the Courts below, is not only Regular Second Appeal No.2715 of 2010 4 devoid of merit but misplaced as well.

12. As is evident from the record, succinctly, the plaintiffs have claimed the ownership of the entire property on the basis of Will (Ex.P1), depriving the other heirs of Kehar Singh (since deceased) from their legitimate shares. On the contrary, according to the contesting defendants, they are owners and in possession of the property in dispute, in view of decree suffered by Kehar Singh and by virtue of natural succession. They have stoutly denied the existence of Will (Ex.P1). In that eventuality, a heavy burden of proof was on the plaintiffs to prove the execution and registration of the Will, free from all surrounding suspicion and that Kehar Singh was owner of the property in dispute on 22.12.1993 at the time of its execution. The trial Court noticed that the alleged Will is dated 22.12.1993 and at that time, the suit filed by Gurdev Kaur etc., challenging the decree dated

2.6.1991, was pending in civil Court, which was ultimately decreed on 14.2.1996. The suit was contested by Avtar Singh alias Tara Singh and Kehar Singh. The fact of existence of the Will was not disclosed, during the course of trial of the civil suit. As soon as, defendants Gurdev Kaur and her daughters have been held to be the owners and in joint possession of the property in dispute earlier owned by Kehar Singh and thereafter by Hakam Singh to the extent of their shares, therefore, the question of transferring the entire property in dispute by Kehar Singh by way of Will in favour of the plaintiffs, did not arise at all, because he was not the owner of the entire land and the same could not be willed away by him.

13. Not only that, as Kehar Singh had already bequeathed his property in favour of Avtar Singh and Hakam Singh, to the extent of ½ share each by suffering a civil Court decree in the year 1972, therefore, there was no necessity for him again to execute and register the Will in favour of his grand sons (plaintiffs).

14. It is not a matter of dispute that the Will is dated 22.12.1993 and had not seen the light of the day, till the institution of the present suit on 3.3.2003. If Kehar Singh had actually executed and registered the Will (Ex.P1) in favour of the Regular Second Appeal No.2715 of 2010 5 plaintiffs, then, they would have produced the same at the time of sanctioning of mutation of his property by virtue of natural succession. Even the plaintiffs did not file any appeal against the order sanctioning the mutation. Moreover, since Kehar Singh was possessing no title, in respect of the entire suit property at the time of executing the Will, so, it does not convey any title in favour of the plaintiffs after his death. That means, the Will is deeply surrounded by suspicious circumstances and the Courts below have rightly negatived the claim of the plaintiffs in this relevant connection.

15. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiffs, in this relevant behalf, have already been duly considered and dealt with by the Courts below.

16. There is another aspect of the matter, which can be viewed from a different angle. The trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that (i) Kehar Singh was not the owner of the entire land in dispute at the time of execution of the Will (Ex.P1) as he had already transferred the same in favour of his sons Avtar Singh alias Tara Singh and Hakam Singh by way of decree in the year 1972 itself; (ii) no provision was made by the testator under the Will (Ex.P1) for other legal heirs and the Will was surrounded by suspicious circumstances and cannot be acted upon and (iii) it has not seen the light of the day till the filing of the present suit. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant-plaintiffs, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts Regular Second Appeal No.2715 of 2010 6 below, in this regard.

17. Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case.

18. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiffs.

19. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) Judge

28.7.2010 AS