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
integrity of this order/judgment
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
integrity of this order/judgment
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,
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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
integrity of this order/judgment
