BALDEV SINGH Vs. KANWAL JIT KAUR

JUDGEMENT

(1.) THE present Regular Second Appeal filed against judgment and decree 18.05.1989 whereby judgment and decree dated 19.09.1985 passed by Sub Judge, IInd Class, Jalandhar was dismissed. For convenience sake, hereinafter, reference to the parties is being made as per their status in the Civil Suit.

(2.) THE detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the plaintiffs Smt. Balbir Kaur and others filed suit for declaration on the ground that Rachhpal Kaur was the owner of the land in dispute along with another piece of land 133 kanal 2 marla. The said land was dontated by Smt. Rachhpal Kaur to Balbir Kaur on 05.10.1958. Rachhpal Kaur donated 162 kanal 2 marla in favour of plaintiffs No.2 to 4 and Parambir Singh (since deceased) in equal shares as per registered gift deed dated 05.10.1958 and, as such, all the four brothers became the owner of the land measuring 40 kanal 10 marla each. The other portion of land 130 kanal was agreed to be sold by Rachhpal Kaur to plaintiffs No.2 to 4 and their brother Parambir Singh for a total sum of Rs. 19,500/ -. At the time of registration of sale deed, objection was raised and name of Parambir Singh was dropped from the name of vendees and the area was changed from 130 kanal to 98 kanal. The rectified sale deed was registered on 11.08.1972. After the death of Smt. Rachhpal Kaur, Smt. Balbir Kaur became the sole heir and owner of 32/130th share in the land. Parambir Singh husband of defendant died in an accdent on 10.12.1982, leaving behind plaintiff No.1 and defendant as his natrual heirs. Parambir Singh executed will dated 12.01.1982. Mutation No.1258 relating to inheritance of Parambir Singh was sanctioned on 17.02.1983 without reference to will dated 12.01.1982. The plaintiff also came to know about the said mistake occured in the mutation No.1114. Since Parambir Singh was Canadian, he was required to obtain permission from Reserve Bank of India before inheriting the property. More so, as per Will dated 12.01.1984, the property of Parambir Singh was to devolve upon plaintiff No.1.

(3.) DEFENDANT contested the suit taking the legal objection that the present suit was barred as per provisions of Order 23 Rules 1 and 4 read with Section 151 CPC. Parambir Singh never intended to go to Canada and he had not executed any will in favour of plaintiff No.1. The alleged Will dated 12.01.1982 was false and fabricated document. Mutation regarding the inheritance of Parambir Singh was sanctioned in presence of plaintiff No.1 and defendant. On 04.03.1983 and plaintiff No.1 had also filed appeal before the Collector, Jalandhar and the same was dismissed on 31.05.1983. On these facts, the following issues were framed and settled: