GURDEV SINGH Vs. SUKHVIR KAUR AND OTHERS

JUDGEMENT

(1.) The appellant-plaintiff is aggrieved of the concurrent findings of fact, whereby the suit seeking declaration, permanent injunction and joint possession against respondents-defendants, has been dismissed by both the Courts below.

(2.) Mr. S.S. Sidhu, learned counsel appearing on behalf of the appellant-plaintiff submits that Gurdev Singh, vide judgment and decree dated 31.07.1991, transferred the entire holding of the land measuring 75 kanals in favour of his wife, namely, late Kashmir Kaur. Unfortunately, Kashmir Kaur died on 02.12.1997. In the mutation proceedings, the respondents-defendants came out with a Will and it is, in this background of the matter, the suit was filed. The defendants as stated above propounded the registered Will dated 25.02.1992 allegedly attested by Agya Ram and another witness, namely, Major Singh and the Scribe, namely, Narinder Singh. The original Will in the primary evidence had not been proved, but by way of additional evidence, it has come through the testimony of attorney-holder of defendant No.2, namely, Kulvir Singh. The Scribe Narinder Singh when appeared in the witness-box did not depose in terms of the provisions of Sec. 63 (c) of the Indian Succession Act, much less, stated that the record of maintaining the register of recording of the Will had been lost. Major Singh was not examined. Agya Ram had died and his son, namely, Vikram Sharma, had appeared and identified the signatures of his father Agya Ram. He in cross-examination also stated that he was adopted son. The Courts below heavily relied upon the provisions of Sec. 69 of the Indian Evidence Act ignoring the fact that that there is no compliance of Sec. 63 (3) of the Indian Succession Act and Sec. 68 of the Indian Evidence Act, in essence, the original Will, which has come in additional evidence, has not put to deed writer Narinder Singh, much less, Vikram Sharma DW-4, and therefore, the Will has not been proved, therefore, there was no question for rebuttal of the same. Kulvir Singh when appeared as defendants' witness stated that both the daughters did not attend the last rites of their mother Kashmir Kaur, in essence, there was no love and affection for her and therefore, the Will was surrounded by the suspicious circumstances. The Will did not disclose about the appellant being the husband and the transfer of the property by way of judgment and decree ibid. All these factors have not been noticed by both the Courts below, thus, urges this Court for formulation of the following substantial question of law:-

(3.) Mr. Amit Jain, learned counsel appearing on behalf of respondent No.3 submits that he is the subsequent vendee and purchased the land measuring 24 kanals 17 marals vide sale deed dated 18.05.2006. He submits that the original Will had, though, not been the light of the day, but proved as the requirement of Sec. 69 of the Indian Evidence Act is sufficient for discharging the onus. Once, the appellant-plaintiff had relinquished his share in favour of Kashmir Kaur, she had become the absolute owner and could alienate the property in any manner which she wants to do. The husband has no right to succeed to the estate of the wife.