High Court of Punjab and Haryana, Chandigarh
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Jaswant Singh v. Kuldeep Singh & Ors - RSA-2591-2002  RD-P&H 1389 (3 March 2006)
DATE OF DECISION:February 17,2006
Kuldeep Singh and others
CORAM:- HON'BLE MR. JUSTICE VINEY MITTAL
PRESENT: Shri R.K.Battas, Advocate for the appellant.
Having failed before the two Courts below, the plaintiff has approached this Court through the present Regular Second Appeal.
Plaintiff Jaswant Singh filed a suit for declaration and for permanent injunction claiming that he is sole owner of the property in question and the defendants had no concern with the same. The plaintiff also challenged the decree dated May 31, 1993 claiming that the said decree had been obtained by the defendants from the plaintiff by producing some other person in place of the plaintiff and by practicing fraud. It was specifically claimed by the plaintiff that he had never engaged any counsel nor had filed any written statement nor admitted the claim of the defendants at any point of time.
The plaintiff claimed that he was residing with Sardara Singh, his father and in lieu of the service rendered by him, Sardara Singh executed a Will dated May 23,1986 in his favour. As a consequence of the aforesaid Will, the plaintiff had become owner of the property in question after the death of Sardara Singh.
The suit was contested by defendants No.1, 3 and 4. It was claimed that the plaintiff alongwith defendants are the joint owners of the property which had been left behind by Sardara Singh.
Originally, the property in question was owned by Sardara Singh, father and Chand Kaur, mother of the parties They alongwith plaintiff and defendants and alongwith Randhir Singh (husband of defendant No.4 another son of Sardara Singh) constituted a Joint Hindu Family. The suit property had been purchased with the income of the Joint Hindu Family in the name of Sardara Singh and Chand Kaur. The Will set up by the plaintiff was specifically stated to be forged and fabricated document. The aforesaid fact was taken with the plaintiff and he admitted the aforesaid fact and also admitted that mutation on the said Will had wrongly been got entered by him.
Consequently, he suffered the decree dated May 31, 1993 voluntarily and willingly.
The learned trial Court, on the basis of evidence led by the parties, held that the decree dated may 31, 1993 was a result of fraud and as such the said decree was liable to be set aside. The Will dated May 23, 1986 Ex.P1 set up by the plaintiff was also held to be surrounded by many suspicious circumstances and as such was rejected. Another Will Ex.P2 claimed to have been executed by Chand Kaur in favour of the plaintiff was also rejected holding that the said Will was also surrounded by many suspicious circumstances.
However, the learned trial Court found that there was another decree dated October 27,1988 Ex.P31 on the record which was shown to have been suffered by Sardar Singh in favour of the plaintiff qua some of the property. The validity of the aforesaid decree was upheld and the plaintiff was held entitled to be an exclusive owner of the property covered by the aforesaid decree dated October 27,1988 Ex.P31/P32. With regard to the remaining property left behind by Sardara Singh, the plaintiff was held to be owner to the extent of 1/5th share alongwith defendants.
Two separate appeals were filed. One appeal was filed by the plaintiff claiming that his suit should have been decreed in toto and he reiterated the Wills Ex.P1 and P2 in his favour. The other appeal was filed by the defendants with regard to the decree dated October 27, 1988 qua which the learned trial Court had decreed the claim of the plaintiff and also re-asserted the validity of the decree dated May 31, 1993.
The learned First Appellate Court re-appraised the entire evidence and re-examined the controversy. It came to the conclusion that both the Wills Ex.P1 and P2 set up by the plaintiff claiming that the same had been executed by Sardara Singh and Chand Kaur, respectively, were surrounded by suspicious circumstances. It also affirmed the findings recorded by the learned trial Court with regard to the decree dated May 31, 1993 and held that the same was based upon fraud and impersonation and, therefore, was not a valid decree.
The learned First Appellate Court also held that no relief could have been granted to the plaintiff on the basis of the decree dated October 27, 1988 Ex.P31/P32, inasmuch as, no plea had been taken by the plaintiff in his plaint qua the aforesaid decree and, therefore, the trial Court could not have granted any relief to the plaintiff based upon the aforesaid decree. Consequently, the appeal filed by the defendants was allowed to the limited extent by holding that the decree dated October 27, 1988 was inoperative and not binding between the parties. Rest of the claim made by the parties in the two appeals was rejected.
I have heard Shri R.K.Battas, the learned counsel for the plaintiff-appellant and with his assistance have also gone through the record of the case.
Shri R.K.Battas, the learned counsel appearing for the appellant has primarily re-asserted the existence and due execution of the Wills Ex.P1 and P2. It has been claimed that the aforesaid Wills were duly executed by Sardara Singh and Chand Kaur. It has also been argued by the learned counsel that in any case the existence of the decree dated October 27,1988 was duly proved and, therefore, the plaintiff was in any case entitled to the exclusive ownership of the property covered by the said decree.
I have duly considered the aforesaid contention of the learned counsel but find no merit in the same.
Both the Courts below have concurrently held that the WillsEx.P1 and P2 were surrounded by many suspicious circumstances. Consequently, both the Wills have been rejected. The learned counsel, during the course of arguments, have not been able to dispel the suspicions pointed out by both the Courts below in execution of the aforesaid Wills. It is well settled that a person setting up the Will has not only to prove due execution but is also required to dispel the suspicions which may be surrounding the Will.
Concurrent findings recorded by the two Courts below with regard to the suspicious circumstances while executing the Wills Ex.P1 and P2 have not been dispelled.
With regard to the claim of the plaintiff based upon the decree dated October 27,1988 it is not disputed by the learned counsel that the said decree was never pleaded in the plaint filed by the plaintiff-appellant. If the aforesaid decree has been first produced during the course of evidence, then the plaintiff cannot be heard to claim any advantage of the said decree. The plaintiff was required to take a specific plea with regard to the existence and validity of the said decree and base his claim thereupon. It has not been done.
Consequently, the learned First Appellate Court was absolutely justified in holding that no relief could be granted to the plaintiff based upon the decree dated October 27,1988.
No other point has been urged.
Nothing has been shown that the findings of fact recorded by the learned Courts below suffer from any infirmity or are contrary to the record.
No question of law, much less any substantial question of law, arises in the present appeal.
February 17, 2006 (Viney Mittal)
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