Punjab-Haryana High Court
Yashoda vs Sunil Kumar And Ors on 14 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
RSA No.1988 of 2019 1 2024:PHHC:036369
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
109 RSA No.1988 of 2019 (O&M)
Reserved on : 06.03.2024
Date of Decision : 14.03.2024
Yashoda ....Appellant
VERSUS
Sunil Kumar and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Satbir Rathore, Advocate for the appellant.
ALKA SARIN, J.
1. The present regular second appeal has been preferred by the plaintiff-appellant against the judgment and decree dated 14.05.2015 passed by the Trial Court and the judgment and decree dated 20.11.2018 passed by the First Appellate Court whereby her suit for declaration and permanent injunction has been dismissed.
2. The brief facts relevant to the present case are that one Ami Lal son of Bakhtawar Singh (father of the plaintiff-appellant) was owner-in- possession having 216/7073 share in Khewat No.25 Khatoni No.61 to 80 Kitta 77 and 31/1058 share in Khewat No.27 Khatoni No.84 to 88 Kitta 13, situated in village Khatiwas, Tehsil and District Mahendergarh. Ami Lal expired on 13.05.2011 and his wife had predeceased him and the plaintiff- appellant being his daughter is the only legal heir. It was alleged that Ami Lal, because of old age, was not in sound disposition of mind and had feeble understanding, power and that the plaintiff-appellant was rendering services to him being his sole daughter. After the death of Ami Lal the plaintiff- appellant approached the Halqa Patwari for getting recorded mutation in her JITENDER KUMAR 2024.03.14 16:53 I attest to the accuracy and integrity of this order/judgment Chandigarh RSA No.1988 of 2019 2 2024:PHHC:036369 favour from where she came to know that mutation No.1008 dated 06.06.2011 had been recorded in favour of the defendant-respondents on the basis of Will No.156/3 dated 06.08.2010. It was submitted that the defendant-respondents were the nephews of Ami Lal and had neither participated nor given financial help at the time of her marriage and in the absence of any closeness in relations, there was no question of execution of any Will in their favour. It was prayed that the impugned Will and mutation be set-aside and the plaintiff-appellant be declared as owner-in-possession of the suit land with consequential relief of injunction against the defendant- respondents. In their written statement the defendant-respondents submitted that Ami Lal was an able-bodied person with sound mind and had died in sound disposition. It was further submitted that it was the defendant- respondents who used to take care of Ami Lal, being his nephews, and that the plaintiff-appellant was residing in her matrimonial home and in her absence the defendant-respondents were rendering services to the deceased. As a result, the deceased in sound disposition executed the registered Will and bequeathed his entire property in favour of the defendant-respondents. No replication was filed by the plaintiff-appellant.
3. The Trial Court framed the following issues :
1. Whether the plaintiff is owner-in-possession over the disputed property ? OPP
2. Whether Will No.156 dated 6.8.2010 allegedly executed by Ami Lal in favour of defendants as well as mutation sanctioned thereafter are illegal and as such liable to be set aside ? OPP JITENDER KUMAR 2024.03.14 16:53 I attest to the accuracy and integrity of this order/judgment Chandigarh RSA No.1988 of 2019 3 2024:PHHC:036369
3. Whether the present suit is not maintainable in the present form ? OPD
4. Whether the plaintiff has concealed the true and material facts from the court ? OPD
5. Whether the plaintiff has no cause of action to file the present suit ? OPD
6. Whether the defendants are entitled to special cost from the plaintiff under Section 35A CPC ? OPD
7. Relief.
4. The Trial Court vide judgment and decree dated 14.05.2015 dismissed the suit of the plaintiff-appellant. Aggrieved by the said judgment and decree dated 14.05.2015 an appeal was preferred by the plaintiff- appellant which appeal was also dismissed vide judgment and decree dated 20.11.2018. Hence, the present regular second appeal.
5. Learned counsel for the plaintiff-appellant has contended that the impugned judgements and decrees are illegal and erroneous and that the Courts have wrongly dismissed the suit of the plaintiff-appellant. It was submitted that the Will of Ami Lal was surrounded by suspicious circumstances as a natural heir was deprived of the property of the Testator. It was submitted that infact the suit should have been decreed.
6. Heard counsel for the plaintiff-appellant and perused the paperbook.
7. Both the Courts have reached concurrent findings of fact and have dismissed the suit of the plaintiff-appellant. The Will dated 06.08.2010 was proved by its scribe DW2 and the attesting witnesses DW1 and DW3. The defendant-respondents are not strangers but nephews of the Testator, JITENDER KUMAR 2024.03.14 16:53 I attest to the accuracy and integrity of this order/judgment Chandigarh RSA No.1988 of 2019 4 2024:PHHC:036369 Ami Lal. It is an admitted fact that the suit property is in District Mahendergarh while the plaintiff-appellant was married and based in District Rohtak. Counsel for the plaintiff-appellant argued that the Testator was not in a sound health when the Will was executed but this argument is not supported by any evidence available on the record. There is no medical record produced to reach a conclusion that Ami Lal was not in sound mental and physical health when the Will dated 06.08.2010 was executed. Further, mere exclusion of the natural heirs from any benefit is not of such suspicious circumstances as to create legitimate doubts on the genuineness of the Will. It has time and again been held that a Will is executed only to alter the mode of succession and by the very nature of things it is bound to result in either reducing the share or depriving the share of the natural heir. If the Testator intended to benefit all the heirs as per the law of succession, there is no necessity at all to execute a Will. Thus, merely because the defendant- respondents have been given the suit property in exclusion of the plaintiff- appellant cannot be held to be suspicious circumstance. No other point was argued.
8. In view of the above, I do not find any merits in the present appeal. No question of law, much less any substantial question of law, arises in the present case. The regular second appeal is accordingly dismissed. Pending applications, if any, also stand disposed off.
( ALKA SARIN ) 14.03.2024 JUDGE jk NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO JITENDER KUMAR 2024.03.14 16:53 I attest to the accuracy and integrity of this order/judgment Chandigarh