SANT SINGH Vs. JOGINDER SINGH AND OTHERS

JUDGEMENT

(1.) The plaintiff has filed the present regular second appeal against the judgment and decree dated 26.8.2013 passed by Sh. K.C. Gupta, Additional District Judge, Patiala whereby appeal filed by the defendants was allowed and the suit of the plaintiff was dismissed and the judgment and decree dated 30.9.2011 passed by Sh. Bikramjit Singh, PCS, Civil Judge (Junior Division), Patiala was reversed.

(2.) In brief, the plaintiff filed suit for declaration and for permanent injunction. It was pleaded that Partap Singh was the son of Chanda Singh and was father of plaintiff, defendants no.1 to 8 and husband of defendant no.5 and maternal grand father of defendants no. 9 to 12 and expired on 11.5.1998 leaving behind the parties as his legal heirs. It was alleged that said Partap Singh was owner of different properties at the time of his death as fully detailed in the head note of the plaint. It was alleged that after his death, the entire property has been inherited by his legal heirs in equal shares i.e. plaintiff and defendants no. 1 to 8 to the extent of 1/10 share each and defendants no. 9 to 12 to the extent of 1/40 share each. It was alleged that Partap Singh never executed any will dated 30.1.1985 registered on 31.1.1985 in favour of defendants no. 1 to 4, as such the alleged will and mutations sanctioned on that basis, are illegal, null and void and are liable to be set aside on the grounds that the said will is surrounded with suspicious circumstances, as no reason has been given for exclusion of some of the legal heirs from inheritance and no reason has been given regarding not mentioning of all the legal heirs of Partap Singh. There are two thumb impressions of Partap Singh on the over leaf of first page of alleged will. The alleged witnesses to the alleged will are not of same village and the mutations have been sanctioned without any notice to the plaintiff and other legal heirs. It was alleged that the plaintiff is owner of the said land left by his father, but defendants have refused to admit his claim and thereafter, he filed suit for declaration, joint possession and permanent injunction. Upon notice, defendants no. 1 to 4 put in appearance and filed joint written statement, wherein preliminary objections of maintainability, mis-joinder of necessary parties, locus standi and cause of action were taken. It was pleaded that the plaintiff has wrongly alleged himself to be the son of Partap Singh, as though he was the natural son of Partap Singh, but when he was of the age of just 21/2 years, he was given in adoption to Sheel Kaur, who has no issue and plaintiff was brought up by said Sheel Kaur, he was admitted in the school at Patiala and he used to reside with her in House No. 1534/3, Gali Gurudwara Jangi Jatha, Raghomajra, Patiala and after the death of Sheel Kaur, he inherited her property being her adopted son. The plaintiff has not come to the court with clean hands as the mother of plaintiff, namely, Bhag Kaur made statement in the mutation proceedings that the will executed by Partap Singh in favour of defendants no.1 to 4 is legal and valid and her son, namely, Sant Singh was given in adoption to Sheel Kaur when he was of the age of just 21/2 years. It was admitted that Partap Singh was owner of the property in question, but it was denied that the plaintiff is entitled to inherit the property being adopted son of Sheel Kaur. It was admitted that said Partap Singh used to reside with defendants no. 1 to 4 and due to the services rendered by them towards Partap Singh, he executed a will with the consent of Bhag Kaur, his wife in their favour, which is legal and valid and on the basis of which, mutations have already been sanctioned in their favour and as such, they are owners in possession of the property in dispute. It was denied that the Will is illegal, null and void or it is surrounded with suspicious circumstances. It was also pleaded that as the plaintiff started residing with Sheel Kaur, there was no need of mentioning of his name in the Will and all other daughters, as they have already married. It was further pleaded that the Will is attested by witnesses and the mere fact that they do not belong to same village, does not create any suspicion. It was pleaded that as the defendants are owners in possession of the property in dispute, the plaintiff has no concern with the property in dispute. Defendants no. 9 to 12 also filed separate joint written statement, wherein, they have admitted the claim of the plaintiff and it was prayed that they are also entitled to their respective shares in the properties left by Partap Singh.

(3.) Remaining defendants did not appear before the trial Court and as such they were proceeded against exparte. Replication was filed by the plaintiff reiterating the facts mentioned in the plaint and denied those made in the written statement. It was pleaded that the plaintiff is the natural son of Partap Singh and it was denied that he was given in adoption to Sheel Kaur, when he was of the age of 21/2 years. It was denied that he ever resided with Sheel Kaur being her adopted son or he was brought up by said Sheel Kaur or she gave education to him.