Jagdish Chander vs Shalinder Nagpal & Anrf
2025 Latest Caselaw 1495 P&H

Punjab-Haryana High Court

Jagdish Chander vs Shalinder Nagpal & Anrf on 28 January, 2025

Author: Pankaj Jain

Bench: Pankaj Jain

                                  Neutral Citation No:=2025:PHHC:012510




RSA-3487-2011 (O&M)                                                       1




115    IN THE HIGH COURT OF PUNJAB AND HARYANA
                     AT CHANDIGARH

                            CM-10666-C-2019, CM-4124-C-2019
                            CM-5532-C-2019, CM-5533-C-2024
                            CM-5856-C-2024 in RSA-3487-2011 (O&M)

                            Date of decision : 28.01.2025
Jagdish Chander                                                   ....Appellant
                                          Versus

Shalinder Nagpal and another                                    ...Respondents

CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN

Present :    Mr. Kulbhushan Sharma, Advocate for the appellant.

             Mr. Pankaj Nanhera, Advocate for the applicant/respondents.

PANKAJ JAIN, J. (ORAL)

Since the present lis pertains to the year 2011 and the matter is

listed qua hearing on the misc. applications, counsels for the parties pray

that the main appeal be heard.

Keeping in view the aforesaid prayer, appeal is taken on Board

today itself for hearing.

RSA-3487-2011 (O&M)

Defendant is in second appeal.

2. For convenience, the parties hereinafter are referred to by their

original position in the suit i.e. the appellant as the defendant and the

respondents and plaintiffs.

3. Shorn of the details, the brief facts are that the parties are

closely related to each other. Common ancestor of parties Beli Ram had a

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son Jagdish Chander and a daughter Laxmi Devi Gogia. The dispute in the

lis relates to estate left by Laxmi Devi Gogia. Laxmi Devi Gogia had no

child. Plaintiffs claimed that Laxmi Devi Gogia adopted Savita Nagpal.

Plaintiffs are sons of Savita Nagpal. Laxmi Devi Gogia died on 01.10.1989.

Suit was filed seeking decree of declaration to the effect that the plaintiffs

are owners in possession in equal shares to the extent of 1/2 share in the suit

property, as detailed out in the headnote of the plaint on the basis of the said

Will dated 26.08.1983 executed by Laxmi Devi Gogia.

4. Suit was resisted by the defendant. Ownership of Laxmi Devi

Gogia was admitted. It was denied that the plaintiffs are owners in

possession of the suit land or that Savita Nagpal was adopted by Laxmi Devi

Gogia during her lifetime. Execution of the Will was also disputed. It was

claimed that Laxmi Devi Gogia after death of her husband, lived with the

defendant. The Will dated 26.08.1983 is a forged and fabricated document.

5. On the basis of the pleadings, following issues were framed :

"1. Whether the plaintiffs are the owners in possession of equal share i.e. half share each of the property specifically described in para No.1 of the plaint? OPP.

2. Whether the change of allotment carried out by the DDA vide letter No.1112 dated 16.08.1995 is illegal and not binding on the plaintiffs? OPP.

3. Whether the present suit is not maintainable in the present form? OPD.

4. Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD.

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5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

6. Whether the civil court has no jurisdiction to decide the present suit? OPD.

7. Relief."

6. Parties led their respective evidence in support of their rival

claims.

7. After analysing the evidence threadbare, Trial Court held under

issues No.1 and 2 that the Will propounded by the plaintiffs stands fully

proved from the testimony of the attesting witnesses. It thus decided issues

No.1 and 2 in favour of the plaintiffs and against the defendant.

8. Issues No.3 to 5 were also decided in favour of the plaintiffs

and against the defendant. Suit was decreed.

9. Defendant assailed the impugned judgment and decree passed

by the Court of First Instance before the Lower Appellate Court. The

findings stand affirmed and the appeal stands dismissed by the Lower

Appellate Court.

10. Mr. Sharma while assailing the impugned judgments and

decrees passed by the Courts below refers to the statement made by PW-5

Sh. V.K. Sharma, Advocate, the attesting witness to the Will. He submits

that as per the testimony of PW-5, witness never knew Laxmi Devi Gogia

before she was introduced to him by Savita Nagpal 1/2 days prior to

execution of the Will. He submits that since Savita Nagpal has not been

examined, the identity of the testator remains unproved. Mr. Sharma further

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refers to Exhibit DW3/F i.e. the judgment dated 22.01.1998 passed in Civil

Suit No.301 of 21.08.1997 titled as 'Savita Nagpal vs. Jagdish Chander'. He

submits that Savita Nagpal filed suit for declaration against Jagdish Chander

claiming that she was daughter of Jagdish Chander and constituted joint

Hindu family along with him and was entitled to share in the suit properties.

This belies the story of adoption of Savita Nagpal. He thus submits that the

Will which has been based upon adoption of Savita Nagpal by Laxmi Devi

Gogia, is suspicious and cannot be relied upon. He further submits that one

of the suit properties i.e. a residential house at Delhi was got mutated in

favour of the defendant by none-else but husband of Savita Nagpal. Thus the

Will propounded by the plaintiffs is under serious dispute.

11. Per contra, Mr. Nanhera submits that there is no plea

challenging the adoption of Savita Nagpal by Laxmi Devi Gogia and thus

the said issue cannot be gone into at this stage of regular second appeal. He

further refers to the issues framed by the Trial Court and submits that there is

no issue w.r.t. adoption of the Savita Nagpal and thus the same is not

germane to the instant lis. He submits that in order to prove Will dated

26.08.1983, attesting witness namely Sh. V.K. Sharma, Advocate as well as

scribe Arjun Singh were examined. Sh. V.K. Sharma, Advocate proved

execution of the Will in terms of Section 63(c) of the Indian Succession Act,

1928. Requirements under Section 68 of the Indian Evidence Act, 1872

having been met, the Will stands proved. He submits that the challenge to

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the Will was raised claiming forgery and fabrication. No positive evidence

was led to prove the same. He further submits that reliance upon Exhibit

DW3/F is also misplaced as the suit filed by Savita Nagpal was finally

dismissed. Defendant while appearing as DW-3 admitted signatures of

Laxmi Devi Gogia on the Will, in question, and thus, the appellants cannot

raise plea of impersonation of Laxmi Devi Gogia.

12. I have heard counsel for the parties and have gone through

records of the case.

13. The primary issue in dispute relates to execution of the Will by

Laxmi Devi Gogia.

14. Law w.r.t. Will stands settled by Supreme Court in the case of

'H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959

Supreme Court 443 holding that mere registration of Will does not prove

legality and genuineness thereof. Wherever party opposing the Will, spells

out suspicious circumstance, the onus lies heavily upon the propounder of

the Will to dispel those suspicious circumstance.

15. Onus is always upon the propounder to prove the execution of

the Will in terms of Section 63(c). Mode of proof has been described under

Section 68 of the Evidence Act. Scribe of the Will appeared as PW-1.

Attesting witness appeared as PW-5. The issue raised by Mr. Sharma w.r.t.

non-examination of Savita Nagpal and the question of cloud on the Will

would arise only if the appellant/defendant proves that it was not Laxmi

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Devi Gogia, who thumb-marked and signed the Will in question. Not only

such evidence is missing, rather defendant appearing as DW-3 after

admitting the signatures of Laxmi Devi Gogia on the Will, left no scope for

such inference as proposed by Mr. Sharma.

16. So far as filing of suit by Savita Nagpal is concerned, the said

issue cannot be agitated against the plaintiffs. The document cannot be

relied upon to non-suit the plaintiffs for two reasons-

(i) The suit was finally dismissed; and

(ii) In case, it is taken to be a plea raised by Savita Nagpal in

the earlier lis, the same cannot be read in evidence until

and unless the same is put to Savita Nagpal by examining

her as witness. Admittedly the same was not resorted to.

17. There being no such effort made by defendant, this Court does

not find any reason to interfere in the well reasoned findings recorded by the

Courts below upholding the Will propounded by the plaintiffs.

18. As a sequel of the discussion held hereinabove, finding no merit

in the instant appeal, the same is ordered to be dismissed.

19. Pending misc. application(s), if any, shall also stands disposed

off.

January 28, 2025                                           (Pankaj Jain)
Dpr                                                           Judge
             Whether speaking/reasoned        :      Yes/No
             Whether reportable               :      Yes/No



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