Punjab-Haryana High Court
Harvinder Singh vs Pritpal Kaur And Anr on 7 November, 2023
118 2023:PHHC:141683
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CM-323-C-2020 in/ and RSA-122-2020
Date of Decision: November 07, 2023
HARVINDER SINGH ........Applicant-appellant
Versus
PRITPAL KAUR AND ANR .......Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present:Mr. Dhruv Gupta, Advocate for the applicant-appellant.
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HARKESH MANUJA, J. (ORAL)
CM-323-C-2020
This is an application filed under Order 41 Rule 27 CPC, seeking
permission to produce on record sale deed dated 18.05.2011, executed by
respondents-defendants, in favour of one Darshana Devi to the extent of 2/3rd
share in the suit property, by way of additional evidence.
Learned counsel for the appellant submits that though, in their
written statement, the respondents-defendants set up a Will dated
09.09.2002, allegedly executed by deceased Parbhat Singh in favour of
respondent No.2/defendant No.2 i.e. his daughter thereby inheriting the entire
suit property whereas, as per the registered sale deed dated 18.05.2011
which has been executed by respondents-defendants in favour of Darshana
Devi, they are claiming themselves to be owners to the extent of 2/3rd share
only.
In view of the above, learned counsel for the appellant submits
that the contents of sale deed go contrary to the Will dated 09.09.2002, set
up by respondents-defendants in the written statement which creates a
strong suspicion with regard to its execution and thus prays that production of
sale deed dated 18.05.2011 by way of additional evidence becomes
necessary.
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
2023:PHHC:141683
I have heard learned counsel for the appellant and gone
through the contents of application as well as paper-book. I am unable
to find substance in the submissions made on behalf of the applicant-
appellant.
Mere assertion made in the sale deed dated 18.05.2011 to
the extent that the vendors i.e. respondents-defendants were owners to
the extent of 2/3rd share in the suit property, at best reflects their
intention not to create the trouble for their vendee/purchaser. In fact the
respondents-defendants made such averment only for the reason that
they intended to alienate the undisputed share of the property during
pendency of the present litigation which commenced in the year 2008 at
the instance of appellant seeking right in the suit property.
Moreover, the factum of possession of Darshana Devi i.e.
vendee under the sale deed dated 18.05.2011 came on record even
during trial of suit, however, no steps were taken by the applicant-
appellant as a prudent man to find out the true and correct transactions
under which Darshana Devi happened to be in possession. Had an
effort been made on behalf of the applicant-appellant, he would have
definitely found out the factum of execution of the sale deed dated
18.05.2011.
Thus, in view of the aforesaid, the sale deed dated
18.05.2011 having no relevance for the adjudication of the present lis
besides, the applicant-appellant having failed to act with due diligence,
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
2023:PHHC:141683
the prayer made in the application stands declined.
MAIN CASE
By way of present appeal, challenge has been laid to the
judgments and decrees dated 15.10.2016 and 04.07.2019 passed by
the Courts below whereby, a suit for declaration as well as permanent
injunction, filed at the instance of appellant-plaintiff claiming 1/3rd share
in the suit property, stands dismissed.
2. Briefly stating, the appellant-plaintiff filed a suit for
declaration claiming 1/3rd share in the suit property i.e. house No. 818,
measuring 95 square yards, situated in Jawahar Colony, Saran
Faridabad stating that the same was purchased by him as well as his
deceased father Parbhat Singh, out of joint funds vide sale deed dated
15.02.1971, executed in the name of father. In the alternate, it was
pleaded that the appellant-plaintiff being son of Parbhat Singh, after his
death, became owner to the extent of 1/3rd share in the suit property
along with the respondents-defendants who happened to be his mother
and sister. Besides it, the appellant-plaintiff also prayed for grant of
decree of permanent injunction, restraining the respondents-defendants
from alienating/transferring the title or possession of the suit property.
3. Upon notice, respondents-defendants appeared and filed
their separate written statements wherein, a Will dated 09.09.2002
executed by deceased father Parbhat Singh in favour of respondent
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
2023:PHHC:141683
No.2/defendant no.2 was set up and it was pleaded that by virtue of the
same, respondent No.2/defendant No.2 became exclusive owner of the
suit property.
4. The trial Court vide judgment and decree dated 15.10.2016,
dismissed the suit filed at the instance of appellant-plaintiff while
holding the validity of the Will dated 09.09.2002
(Ex. D-1). Aggrieved thereof, the appellant-plaintiff filed the First
Appeal, however, the same was dismissed vide judgment and decree
dated 04.07.2019.
5. Impugning the aforementioned judgments and decrees
passed by the Courts below, learned counsel for the appellant submits
that in the facts and circumstances of the present case as well as from
the evidence available on record, the respondents-defendants failed to
prove the valid execution of the Will dated 09.09.2002 besides, the
same being surrounded by suspicious circumstance. Learned counsel
further submits that there was sufficient material on record to adjudge
that the Will in question was surrounded by suspicious circumstance.
Learned counsel also submits that there were material contradictions in
the statements made by the attesting witness i.e. DW2 and defendant
No.2/respondent No.2 who appeared as DW-1. He further points out
that the name of beneficiary i.e. respondent No.2/defendant No.2 was
never typed in the Will but was handwritten and was never counter-
signed by the testator which created suspicion about its valid execution.
No other argument has been addressed.
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
2023:PHHC:141683
6. I have heard learned counsel for the appellant and gone
through the paper-book. I am unable to find substance in the
submission made on behalf of the appellant.
7. A perusal of judgments and decrees passed by the Courts
below show that execution of Will dated 09.09.2002 (Ex.D1) by
deceased Parbhat Singh in favour of respondent No.2/defendant No.2,
qua the property in question has been validly proved on record in
consonance with Section 63 of the Indian Succession Act, 1925 read
with Section 68 of the Indian Evidence Act, 1872. One of the attesting
witness namely Krishan Lal Sikka appeared as DW2 and proved the
attestation of Will by both the witnesses i.e. for himself as well as for
second attesting witness namely Lumber Singh.
8. As regards, the contradictions in the deposition made by
DW2-Krishan Lal Sikka (attesting witness) as well as DW1 i.e.
respondent/defendant No.2, having gone through the paper-book in the
humble opinion of this Court, the same being not material, needs to be
discarded, being not enough to raise any suspicion about the valid
execution of the Will in question and to ignore his desire and the mind
expressed therein by the testator.
9. Equally important, there is no merit in the contention raised
on behalf of the applicant-appellant that the name of the beneficiaries
not being typed but handwritten in the Will in question raises suspicious
circumstance. In this regard, it may be pointed here that the attesting
witness namely Krishan Lal Sikka while appearing as DW2 categorically
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
2023:PHHC:141683
deposed that the Will was duly read out to the testator and he signed it
after understanding the same thereafter. It means that at the time of
attestation of Will, in question, there was no blank space left out in the
Will and the name of the beneficiary was already recorded in the Will
before the signatures by the testator.
10. In view of the discussion made hereinabove, finding no
illegality or perversity with the concurrent findings of fact recorded by
the Courts below, there being no overlooking of the material available
on record, re-appreciation of pleadings and the evidence being
impermissible, the present appeal being devoid of merits is, thus,
dismissed.
11. Pending application(s), if any, shall also stand disposed of.
07.11.2023 ( HARKESH MANUJA )
tejwinder JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
TEJWINDER SINGH
2023.11.09 09:20
I attest to the accuracy and
integrity of this document
