Punjab-Haryana High Court
Swaran Singh And Others vs Surinder Kaur And Others on 15 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
101 2024:PHHC:037790
In the High Court of Punjab and Haryana, at Chandigarh
Regular Second Appeal No. 109 of 1994
Date of Decision: 15.03.2024
Swaran Singh (Since Deceased) through his Legal Representatives and
Others
... Appellant(s)
Versus
Surinder Kaur alias Chhindo (Since Deceased) through her Legal
Representatives and Another
... Respondent(s)
CORAM: Hon'ble Mr. Justice Anil Kshetarpal.
Present: Mr. Avnish Mittal and Ms. Aparna Singhal, Advocates
for the appellant(s).
Mr. Baldev Singh Sidhu, Advocate
for respondent No.1.
Mr. Ramesh Chand Sharma, Advocate
for respondent No.2.
Anil Kshetarpal, J.
1. The Regular Second Appeal in the States of Punjab and
Haryana and Union Territory, Chandigarh is governed by Section 41 of the
Punjab Courts Act, 1918 and not by Section 100 of the Code of Civil
Procedure, 1908, as held by a five Judge Bench of the Supreme Court in
Pankajakshi (Dead) through LRs v. Chandrika and Others (2016) 6 SCC
2. This is defendants' second appeal against the judgment passed
by the First Appellate Court. The Trial Court had partly decreed the
plaintiff's suit while reversing the finding, that defendant No.2 to 4 are the
bonafide purchasers by virtue of four sale deeds executed by Faquir
Chand/Faquir Singh in their favour. However, the First Appellate Court
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decreed the suit filed by the plaintiff in entirety.
3. In order to comprehend the issue involved in the present case,
the relevant facts, in brief, are required to be noticed. Respondent-Surinder
Kaur is the daughter of late Smt.Amar Kaur. The dispute is with regard to
the property left behind by late Smt.Amar Kaur. Defendant No.1 claims the
property of late Smt. Amar Kaur on the basis of the Will dated 01.02.1980.
On the basis of the aforesaid Will, which was registered after the death of
Smt.Amar Kaur, Faquir chand/Faquir Singh had executed as many as four
sale deeds in favour of the appellants (defendant No.2 to 4).
4. The plaintiff claims that late Smt.Amar Kaur never executed
any Will bequeathing her property in favour of Faquir Chand/Faquir Singh
who is her husband's brother's son. It has been found by the First Appellate
Court that the Will dated 01.02.1980 has not been executed in accordance
with Section 63 of the Indian Succession Act, 1925 (hereinafter referred to
as "the 1925 Act"). Thus, the sale deeds executed by Faquir Chand/Faquir
Singh are not valid.
5. Heard the learned counsel representing the parties at length and
with their able assistance, perused the paper-book along with their respective
synopsis.
6. The learned counsel representing the appellants contends that
the suit was filed by Smt. Surinder Kaur in collusion with her first cousin
immediately after the sale deeds were executed in favour of defendant No.2
to 4. He submits that the suit is collusive and both the Courts below have
erred in decreeing the suit. He further submits that defendant No.2 to 4 are
the bonafide purchasers for valuable consideration and their rights should be
protected.
7. Per contra, the learned counsel representing the plaintiff
contends that the Will is not attested by two attesting witnesses as required
under Section 63 of the 1925 Act and the only attesting witness has also not
appeared in evidence before the Trial Court to prove the Will. He further
submits that in fact, two sale deeds were executed and registered on
31.10.1986, whereas, the suit was instituted on 30.10.1986.
DEEPAK KUMAR BHARDWAJ8. This Court has considered the submissions of the learned
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counsel representing the parties.
9. The Will is a part of the Trial Court's record. It is evident that it
is allegedly thumb marked by late Smt. Amar Kaur. Malkiat Singh has
signed the Will as a Scribe. Jaspal Singh had also appended his signatures. In
other words, only Jaspal Singh has appended his signatures as an attesting
witness because Malkiat Singh has specifically written that he has scribed
the Will . Even Jaspal Singh has not been examined by Faquir Chand/Faquir
Singh. Moreover, there is no evidence to prove that the suit was filed by the
plaintiff in collusion with Faquir Chand/Faquir Singh.
10. Keeping in view the aforesaid discussion, this Court does not
find it appropriate to interfere with the findings of fact arrived at by the First
Appellate Court. Hence, the present appeal is dismissed.
(Anil Kshetarpal)
Judge
March 15, 2024
"DK"
Whether speaking/reasoned :Yes/No
Whether reportable : Yes/No
