Punjab-Haryana High Court
Veena @ Sakshi vs Sneh Lata @ Meena Bhandari And Ors on 20 November, 2024
Neutral Citation No:=2024:PHHC:152486
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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118 RSA-254-2023 (O&M)
Date of Decision.:20.11.2024
Veena @ Sakshi .....Appellant
Vs.
Sneh Lata @ Meena Bhandari and Others .....Respondents
CORAM:- HON'BLE MR. JUSTICE DEEPAK GUPTA
Present:- Mr. Deepak Arora, Advocate
for the appellant.
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DEEPAK GUPTA, J. (ORAL)
Defendant No.6 of the case is in this Regular Second Appeal
against the concurrent findings of the Courts below.
2. Perusal of the paper-book would reveal that as per the case set
up by the plain'ffs Sneh Lata @ Meena and Bhushan Kumar (respondents
Nos.1 & 2 herein), the suit property - a house and a shop, detailed and
described in head-note of the plaint, were earlier owned by Megh Raj. On
his death, he was succeeded by eight legal heirs i.e. widow and seven
children. Widow Ram Bhag' expired on 16.02.2013. Par'es to the suit are
seven children of deceased Megh Raj. Plain'ffs claimed 1/7 share each in
the suit property by way of par''on and separate possession. The suit was
contested by defendant No.6- appellant by contending that Nathu Ram, the
father of Megh Raj was the owner of the suit property. It was also pleaded
that Ram Bhag' had executed a Will dated 02.02.2013 in her favour. This
way appellant had set up a Will of her mother Ram Bhag' in her favour.
3. Necessary issues were framed. Evidence produced by the
par'es was taken on record. Suit was ul'mately decreed by the trial Court
on 17.01.2018 by holding that plain'ffs were co-owner to the extent of 1/7
share each and that defendant Nos.1, 3 to 6 were also co-owner to the
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extent of 1/7 share each in the joint suit property. Suit for possession by
way of par''on was accordingly decreed. Appeal filed by defendant No.6
i.e. appellant herein was dismissed by the first Appellate Court on
21.08.2019.
4. It is contended by leaned counsel for the appellant that Courts
below have failed to appreciate the evidence on record, inasmuch as the
appellant was en'tled to inherit the share of Ram Bhag' in the suit
property on the basis of Will. It is also the conten'on that Nathu Ram was
owner of house in dispute. Appellant moved an applica'on under Order 41
Rule 27 CPC (CM-7696-C-2024) to place on record allotment le@er
(Annexure A-1) in this regard by way of addi'onal evidence.
5. This Court has considered submissions of counsel for the
appellant and finds no merit in the appeal.
6. It will be useful to reproduce the observa'ons made by the
first Appellate Court in para No.28 of the judgment dated 21.08.2019,
wherein the relevant facts as pleaded by the par'es and the evidence
adduced, has been discussed. It reads as under:
"28. As noted, present suit has been filed regarding two proper'es i.e.,
house No. B-11/93 and shop No.B-1/388, both situated within abadi of
Phillaur. Claim of the plain'ff is that these proper'es were owned by
Megh Raj. However, defendant No.6 claimed these were owned by their
grand father Nathu Ram. Plain'ff proved copies of assessment register of
the year 1994-95 as Ex.P3 and Ex.P4, wherein house and shop in ques'on
are recorded as ownership of Megh Raj son of Nathu Ram. Apart from it, a
perusal of judgment Ex.P5 shows that Megh Raj filed an injunc'on suit
against Jagdish Rai and others claiming himself to be owner in possession
of the house. Said suit was regarding a ven'lator exis'ng in the southern
wall of the house and sought the relief that defendant Jagdish Rai and
others should not raise any construc'on in the adjoining property, so as to
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obstruct light and air from the said ven'lator. Said suit was decreed upto
Hon'ble High Court vide judgment Ex.P10 and site plan Ex.P8 filed by Megh
Raj in the said suit depicts that he claimed ownership of the house in
ques'on. So far as the shop is concerned, same was purchased by Megh
Raj vide sale deed dated 20.04.76 (Ex.P7). Veena Rani in her cross-
examina'on admi@ed that shop in ques'on was purchased by her father
Megh Raj from the earlier owner. She claimed that her grand father was
tenant in the said shop. Even if it was so, shop having been purchased by
Megh Raj vide sale deed dated 20.04.76 Ex.P7, it was ownership of Megh
Raj and not of Nathu Ram. From the Municipal Council record Ex.P3,
judgment Ex.P5 and site plan Ex.P8, it is also established that Megh Raj
was the owner of the house in dispute as well. Defendant No.6 has led no
evidence at all that her grand father Nathu Ram was the owner of the
shop or the house. As such, it is proved that Megh Raj was owner in
possession of the suit property. Admi@edly, he leI behind eight legal heirs
i.e., the par'es to the suit as well as their mother Ram Bhag'. Ram Bhag'
has expired. Defendant No.6 has set up will dated 02.02.2013, allegedly
executed by Ram Bhag' in her favour. A copy of will dated 02.02.2013
Mark-B has been produced on the file. Perusal thereof shows that it is
a@ested by Ja'nder Sharma and Surinder Pal as witnesses. None of them
however stepped into the witness box. Examina'on of at least one
a@es'ng witness was necessary to prove the execu'on of the will as per
Sec'on 67 of the Evidence Act. DW-7 Bal Kishan was examined by the
defendant as a Finger Print and Handwri'ng Expert. He deposed that
thumb impression on the will dated 02.02.2013 is ink smudged and no
opinion therefore can be given qua the same. As such from the expert
witness also it remained un-proved that will dated 02.02.2013 bears
thumb impression of Ram Bhag'. DW-4 Suman Pritam, deed-writer while
deposing on oath in the court stated that he has brought record pertaining
to will dated 11.10.2012. This will was executed by Ram Bhag' in favour of
her daughter Veena. He further stated that Ram Bhag' did not come to
him but Veena instructed him to scribe the will. He further stated that he
did not read over the contents of the will to Ram Bhag'. That thumb
impression of Ram Bhag' was however taken by him in his register at
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entry Ex.DW4/A by telling Ram Bhag' that same are regarding will
executed in favour of Veena. In cross-examina'on, he took u-turn and
stated that he did not see Ram Bhag' on 11.10.2012. His computer
operator typed the will, went to the house of Ram Bhag' and got her
thumb impression on register. Whether on the strength of such statement
of deed writer, execu'on of will can be said to be proved, answer to the
same is in nega've. Further more, the en're statement of this witness is
regarding will dated 11.10.2012 and not regarding will dated 02.02.2013,
which has been set up by defendant No.6 in the present suit. So far as
affidavit Mark A of Surinder Pal, an a@es'ng witness is concerned, same is
hardly sufficient to prove the will. There is no evidence that affidavit Mark-
A bears signature of Surinder Pal. No witness to prove the execu'on of the
affidavit and thereaIer its a@esta'on from Notary by Surinder Pal was
examined by defendant No.6. Merely by producing the affidavit Mark-A
and claiming the same to be have been executed by Surinder Pal sta'ng
that will dated 02.02.2013 was executed by Ram Bhag', execu'on of the
will cannot be claimed to have been proved. As such, will dated
02.02.2013 as set up by defendant No.6 remained unproved and has been
rightly discarded by the learned trial court."
7. It is, thus, clear that in a previous li'ga'on, Megh Raj had
claimed himself to be owner of the house in dispute and that suit was
decreed. Shop in dispute was found to have been purchased by Megh Raj.
Thus, it was found that aIer the death of Megh Raj and his wife Ram
Bhag', all of his seven children had inherited the suit property to the extent
of 1/7 share each. It was further observed by the Court that the Will dated
02.02.2013 Mark 'B' as set up by the appellant- defendant No.6 was
purported to be a@ested by Ja'nder Sharma and Surinder Pal as witnesses
but none of them were examined. The fingerprint expert examined by the
defendant found the purported thumb impression of the testator to be ink
smudged and so, no opinion could be given as to whether the Will was
thumb marked by Ram Bhag'. It was further found by the Appellate Court
that the deed writer, who was examined by defendant No.6 stated about
another Will dated 11.10.2012 and not about the Will dated 02.02.2013 set
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up by the defendant. Not only this, deed writer admi@ed during cross-
examina'on that Ram Bhag' had not put thumb impression in his presence
and rather, his computer operator had gone to the house of Ram Bhag'
and got her thumb impression on the register.
8. In view of the abovesaid facts and circumstances, the Courts
below did not commit any error in coming to the conclusion that Will set
up by defendant No.6- appellant was not at all proved.
9. As far as, applica'on under 41 Rule 27 CPC is concerned, it has
no merit. It is not the case of the appellant that the allotment le@er
Annexure A-1 was not in the knowledge of the appellant- defendant at the
'me of leading evidence. Even if it is assumed that house in dispute was
earlier owned by Nathu Ram, there is nothing to show that aIer the death
of Nathu Ram, it was inherited by any other legal heir except his son Megh
Raj i.e. father of the par'es. In any way, Megh Raj having been found to be
owner of the disputed house and shop, therefore, aIer his death and that
of his wife, it is the par'es to the suit property, who are his legal heirs and
who have inherited the same. As such, applica'on under Order 41 Rule 27
CPC is hereby dismissed.
10. On account of en're discussion as above, it is held that there is
no merit in the present appeal and so, the same is hereby dismissed.
(DEEPAK GUPTA)
JUDGE
November 20, 2024
Nee'ka Tuteja
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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