ATTAR SINGH Vs. CHAND KAUR

JUDGEMENT

(1.) SUIT filed by the plaintiff was decreed by the trial Court vide judgment and decree dated 19.04.2012. Appeal preferred against the said decree failed and was, accordingly, dismissed by the learned first Appellate Court, vide judgment and decree dated 28.09.2013. That is how, the defendants are before this Court in this Regular Second Appeal. Parties to the lis, hereafter, would be referred to by their original positions in the suit.

(2.) THE case set out by the plaintiff was that Harphool Singh son of Arjan son of Rama was her father and after marriage she started living with the family of her -in -laws at Singhu, Delhi. It was maintained that she had been visiting her father Harphool Singh during his life time. Harphool Singh had full love and affection towards the plaintiff. Harphool Singh died in the year 1992 leaving behind the plaintiff as her sole heir. Harphool Singh was the owner in possession to the extent of his share in agricultural land comprised in khewat No. 52/50, khata No. 27, rectangle and killa No. 12/19 M(8 -0) and also vis -à -vis the land comprised in khewat No. 77/74, khata No. 150, rectangle and killa No. 28/6/2(2 -3), 15/1(5 -2) total measuring 7 kanals and 5 marlas situated within the revenue estate of Village Sewli, Tehsil and District Sonepat. Mother of the plaintiff had predeceased her father and she was residing with her -in -laws and thus taking advantage of the loneliness of Harphool Singh, the defendants got a Will dated 18.02.1971, registered on 21.02.1971, executed to grab the suit property. Estate of Harphool Singh was mutated in the name of the defendants, pursuant to the alleged Will. It was pleaded that the defendants were not related to deceased Harphool Singh and thus, no Will could be executed in their favour. Still further, the recitals in the Will that Harphool Singh had no daughter, son or other legal heir was incorrect as the plaintiff was real daughter of the deceased and was very much alive. The fact with regard to the execution of the Will was never shared by Harphool Singh with the plaintiff during his life time. Therefore, the Will being propounded by the defendants was got executed by misrepresentation and playing fraud upon Harphool Singh, who happened to be an illiterate person and an innocent villager. Thus, the plaintiff was the owner of the suit property and was entitled to the possession.

(3.) ON an analysis of the matter in issue and the evidence on record, learned trial Court arrived at a conclusion that the Will in question did not refer to wife of the deceased Harphool Singh and also does not acknowledge the existence of the plaintiff, who concededly happened to be the daughter of Harphool Singh (testator). It was observed that discarding the existence of the plaintiff altogether was a fact which even misled the revenue authorities, who entered mutation pursuant to the alleged Will. In the circumstances, even no notice was issued to the plaintiff, though she was the daughter and the only heir of the deceased. DW2 Lakhmi Chand, an attesting witness of the Will, admitted in his cross -examination that none of the attesting witnesses belonged to Village Sewli, where the testator Harphool Singh was residing at the time of execution of the alleged Will. He also admitted his close relationship with the defendants. So much so, he stated in his cross -examination that Harphool Singh was unmarried and did not have any issue. Thus, it was observed that the false recitals in the Will Ex. D1 contrary to the true and actual position were fully known to the attesting witness DW2. Merely by producing the attesting witnesses of the Will the genuineness thereof could not be said to have been proved. Likewise, mere registration of document was not enough by itself to prove its due and valid execution unless and until it was proved that the same was signed by the testator with a free will and sound disposing mind. Resultantly, it was concluded that the plaintiff had successfully established the registered Will dated 21.02.1971 and mutation No. 2134 sanctioned on the basis of the same, were wholly illegal and void. Consequently, the plaintiff being the sole heir of deceased Harphool Singh was held to have inherited the suit property and thus, entitled to possession. Vis -à -vis the issue as to whether the suit of the plaintiff was barred by time, learned trial Court observed that the present suit was filed on 27.09.2007 and it was pleaded by the plaintiff that on 29.08.2007, when she along with her husband visited the suit property, she was disallowed from entering the fields by the defendants, propounding a Will and a mutation. Plaintiff Chand Kaur (PW1) reiterated her stand in her statement in the Court and her testimony in this regard remained unshaken despite an elaborative cross -examination. The reliance was placed upon the decisions of Hon'ble the Supreme Court and this Hon'ble Court reported as Balwant Singh v. Gurbachan Singh and another, : 1993 HRR 165 (SC) and Ibrahim v. Sharifan, : AIR 1980 (P&H) 25 (DB) Accordingly, it was held that a mere entry of mutation in the name of the defendants in the absence of any overt act of the defendant does not give rise to cause of action for the purpose of Article 58 of the Schedule to the Limitation Act. In any case, the plaintiff being the daughter of late Harphool Singh succeeded to his estate by a natural succession immediately on his death as succession never remains in abeyance. Thus, the issue was decided against the defendants. As a result, vide judgment and decree dated 19.04.2012, learned trial Court decreed the suit.