HARPAL SINGH Vs. JAGDISH SINGH

JUDGEMENT

(1.) THIS is plaintiffs' appeal filed under Section 100 of the Code of Civil Procedure 1908 (for brevity, 'the Code') challenging concurrent finding of fact recorded by both the Courts below holding that the Will Ex-D-5 dated 12.6.1982 executed by Harbhajan Singh in favour of the defendant- respondents which is registered document, does not suffer from any legal infirmity and has been duly proved by the defendant-respondents. The findings of the trial Court on the question of the validity of general power of attorney (Ex-P6=Ex-D1) dated 8.10.1993 holding that it was validly executed has been upheld by the learned lower appellate Court. However, the judgment and decree Ex.P3 and P4 suffered by the Power of Attorney in favour of other defendant-respondents have been declared illegal for want of registration under Section 17 of the Registration Act, 1908 (for brevity, 'the Registration Act').

(2.) THERE was one Kharak Singh who had three sons S/sh. Hari Singh, Gurcharan Singh and Harbhajan Singh. The plaintiff-appellants are successors-in-interest of Hari Singh whereas the defendant-respondents are successors-in-interest of Gurcharan Singh. Harbhajan Singh the third brother died unmarried and issueless, whereas the other two brothers Hari Singh and Gurcharan Singh had children who are litigating to claim the property of Harbhajan Singh. It is admitted position that the possession of the suit land is with the defendant- respondents. The basis of their possession is Mutation No. 1386 dated 20.11.1993 which in turn has been entered on account of a judgment and decree dated 20.10.1993 (Ex.P3 and P4) in favour of defendant-respondents. The decree was suffered by Gurmeet Singh defendant-respondent, one of the sons of Gurcharan Singh (who was constituted as a general power of attorney by Harbhajan Singh) in favour of other defendant-respondents. The trial Court however did not accept the judgment and decree because the decree was not registered under Section 17 of the Registration Act. The learned lower Appellate Court, however, did not feel the necessity of any registration of such a decree as it was concluded that the same was based on pre-existing rights of the parties. The view of the lower appellate court on the aforementioned issue reads as under :-

(3.) MR . Rakesh Gupta, learned counsel for the plaintiff-appellant made an attempt to persuade me to accept his argument that the Will suffered from various suspicious circumstances. He also made an effort to argue that the absence of the second attesting witness would render the Will Ex.D5 as invalid. It cannot be presumed that the Will has been executed in accordance with law. Another arguments was also raised that the judgment and decree dated 20.10.1993 Ex.P3 and P4 also suffered from legal infirmity of lack of registration.