Punjab-Haryana High Court
Anoop Kumar vs Anil Kumar And Others on 1 July, 2024
Neutral Citation No:=2024:PHHC:081032
130
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
RSA No. 1621 of 2024 (O&M)
Date of Decision: 01.07.2024
Anoop Kumar
.......... Appellant
Versus
Anil Kumar and others
.......... Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Jagdish Manchanda, Advocate
for the appellant-defendant No. 3.
****
HARKESH MANUJA, J. (ORAL)
By way of present appeal, challenge has been laid to the
judgment and decree dated 19.02.2024 passed by the Court of Additional
District Judge, Jalandhar (hereinafter to be referred as "First Appellate
Court"), whereby the appeal filed against the judgment and decree dated
13.04.2018 passed by the Court of Civil Judge (Junior Division),
Jalandhar (hereinafter to be referred as "trial Court"), decreeing the
suit for separate possession by metes and bounds qua 1/8th share of the
plaintiff and defendant Nos. 1 to 7 (filed at the instance of respondent No.
1-plaintiff / Anil Kumar), was partly allowed to the extent of grant of
preliminary decree.
[2] Briefly stating, respondent No. 1-plaintiff (Anil Kumar) filed
a suit for possession by way of metes and bounds, claiming 1/8th share
over the suit property bearing House No. ND 125, situated at Bikrampura,
1 of 5
Neutral Citation No:=2024:PHHC:081032
Jalandhar, which was owned by his mother, namely, Smt. Puran Rani wife
of Sh. Vas Dev, having purchased 5½ Marla of suit property through
registered sale deed dated 25.07.1989 with the remaining portion of 5½
Marlas been purchased in her name vide registered sale deed dated
03.01.1992, thereby making the total land measuring 11 Marlas. It was
further pleaded that during her life-time, the mother, Smt. Puran Rani,
sold 03 Marlas 68.5 sq. ft. in favour of Smt. Reetu wife of Sh. Anoop
Kumar - appellant/defendant No. 3 vide registered sale deed dated
01.02.1999, which further came to be sold by Smt. Reetu to Smt. Kavita
(respondent No. 8-defendant No. 8), who is the wife of respondent No. 1 /
plaintiff-Sh. Anil Kumar vide registered sale deed dated 27.01.2011. It
was then pleaded that Smt. Puran Rani died intestate on 15.06.2003
leaving behind respondent No. 1-plaintiff and defendant Nos. 1 to 7 as her
legal heirs qua the remaining 8 Marlas of land and hence, the suit by
respondent No.1-plaintiff, claiming 1/8th share in the property in question.
[3] The aforesaid suit was contested at the hands of appellant-
defendant No. 3, while claiming that the mother Smt. Puran Rani executed
a registered Will dated 06.07.1999, whereby the property in question was
distributed amongst the legal heirs and thus, it never remained joint after
her death.
[4] The trial Court vide its judgment and decree dated 13.04.2018
decreed the suit, filed at the instance of respondent No. 1-plaintiff, while
holding that Smt. Puran Rani died intestate, leaving behind eight legal
heirs. It was held that appellant-defendant No. 3 (Anoop Kumar) failed to
2 of 5
Neutral Citation No:=2024:PHHC:081032
establish the partition of the suit property based on Will dated 06.07.1999,
the same being not proved in terms of Section 63 of the Indian Succession
Act, 1925, read with Section 68 & 69 of the Indian Evidence Act, 1872.
[5] Aggrieved thereof, appellant-defendant No. 3 filed first
appeal, however, the same came to be dismissed vide judgment and
decree dated 19.02.2024 passed by the First Appellate Court.
[6] Impugning the judgments and decrees (supra) passed by the
trial Court and First Appellate Court, learned counsel for appellant-
defendant No.3 submits that in the wake of admission made by respondent
No. 1-plaintiff while appearing as PW-2 as regards the photograph of his
mother on the Will dated 06.07.1999 (Ex. DX/A), besides even admitting
her signatures thereupon, no further proof of Will was required and the
suit was, thus, liable to be dismissed.
[7] No other argument has been raised on behalf of the appellant.
[8] After hearing learned counsel for the appellant and having
gone through the paper-book / records, I am unable to find substance in
the submissions made on behalf of appellant-defendant No.3.
[9] In the present case, admittedly, the property in question was
purchased by Smt. Puran Rani, who is the mother of appellant-defendant
No.3 (Anoop Kumar) vide two separate registered sale deeds dated
25.07.1989 & 03.01.1992, thereby making her owner in possession of 11
Marlas of land, out of which, she sold 03 Marlas 68.5 sq. ft. in favour of
Smt. Kavita (defendant No. 8), who is the wife of respondent No. 1 /
plaintiff (Anil Kumar) vide registered sale deed dated 27.01.2011. The
3 of 5
Neutral Citation No:=2024:PHHC:081032
relationship between the parties being legal heirs of Smt. Puran Rani has
not nowhere been disputed during trial. Further, it has also not been
disputed that Smt. Puran Rani, unfortunately died on 15.06.2003. The
only contest made at the instance of appellant-defendant No. 3 is that the
property in question stood portioned amongst the legal heirs of Smt. Puran
Rani by virtue of registered Will dated 06.07.1999. Unfortunately, the
said Will has not been proved by appellant-defendant No. 3 in terms of
Section 63 of the Indian Succession Act, 1925, read with Section 68 or 69
of the Indian Evidence Act, 1872. None of the attesting witnesses has
been produced so as to prove the valid attestation and execution of Will in
question. A half-hearted attempt has been made to submit that the non-
production of either of the attesting witness was on account of their
unfortunate demise before the filing of suit. However, no effort at all has
been made to prove the Will dated 06.07.1999, in terms of Section 69 of
the Indian Evidence Act, 1872 and in such circumstances no illegality or
perversity can be found in the judgments and decrees (supra) passed by
the Courts below, treating respondent No. 1-plaintiff besides defendant
Nos. 1 to 8 being the legal heirs-cum-co-owners and successors of
deceased-Smt. Puran Rani qua the property in question, while ignoring
the Will dated 06.07.1999 being not proved on record in accordance with
the principles of law. Furthermore, mere admission about photograph and
signatures of mother on the Will in question would not dispense the
statutory requirement of its attestation, as envisaged under Section 63 of
the Indian Succession Act, 1925.
4 of 5
Neutral Citation No:=2024:PHHC:081032
[10] In view of the above, there being no mis-reading of the
pleadings or the evidence available on record, finding no merit in the
present appeal, the same is hereby dismissed.
[11] Pending miscellaneous application(s), if any, shall also stand
disposed off.
July 01, 2024 ( HARKESH MANUJA )
'dk kamra' JUDGE
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
5 of 5
