JASWINDER KAUR AND ORS. Vs. BOLI AND ORS.

JUDGEMENT

(1.) Plaintiffs have directed this regular second appeal against the judgment and decree dated 6.12.2011 passed by Additional District Judge (Fast Track Court), Bathinda whereby judgment and decree dated 10.9.2009 passed by Additional Civil Judge (Senior Division), Phul has been upheld.

(2.) Plaintiffs filed a suit for declaration on the ground that they are in possession of the suit land to the extent of 1/3rd share in the capacity of owners. Defendants have no right in the suit land on the basis of Will dated 27.2.2001 allegedly executed by Kundha Singh in favour of the defendants. The Will in question is claimed to be forged and fabricated document and does not create any right, title or interest in favour of the defendants. Plaintiffs claimed the will to be nullified. Plaintiffs alleged that they are entitled to 1/3rd share and also to get it separated from the defendants. Kundha Singh was owner in possession to the extent of 1/3rd share of the property measuring 286 kanals 4 marlas as per jamabandi for the year 2000 -2001. Kundha Singh was real uncle of the plaintiffs i.e. Karnail Kaur (since deceased) and Mukhtiar Kaur and real brother of Dhan Kaur i.e. mother of the plaintiffs. Kundha Singh did not solemnize marriage during his lifetime and was having two brothers and two sisters namely Hardita and Dulha (brothers) and Dhan Kaur and Harnam Kaur as sisters. Kishan Kaur, Harnam Singh, Dhan Kaur, Harnam Kaur, Hardita and Dulha, mother, father, sisters and brothers of Kundha Singh pre -deceased him. Karnail Kaur and Mukhtiar Kaur were two daughters of Dhan Kaur who was real sister of Kundha Singh. Ghaila Singh, Mukhtiar Singh, Nauta Singh and Jal Kaur were sons and and daughters of Harnam Kaur i.e. other sister of Kundha Singh. Jal Kaur and Nauta Singh predeceased Kundha Singh. Dhan Kaur and Harnam Kaur were married. Kundha Singh died on 3.3.2002 at the age of 95 years. Plaintiff claimed that he used to reside with the plaintiffs during his lifetime and plaintiff served him. Kundha Singh did not execute any will in favour of any person. Plaintiffs claimed themselves to be natural heirs of deceased Kundha Singh who inherited his estate after his death. Plaintiffs further claimed that deceased Kundha Singh never solemnized any marriage during his lifetime. Defendant -Boli was having no concern with Kundha Singh nor defendants -Jaswant Singh, Pritam Singh and Mohinder Singh were having any concern with the suit land or with Kundha Singh. Kundha Singh purchased several women during his lifetime who used to run away from his house after residing with him for short interval. Kundha Singh also performed one karewa marriage with one Surjit Kaur D/o. Mehar Singh on 9.1.1964 regarding which karewanama was scribed by one Devi Dayal, deed writer on the instructions of Surjit Kaur in the presence of marginal witnesses. Karewanama was also got registered with Sub -Registrar, Rampura Phul. However, said Surjit Kaur left the society of Kundha Singh after sometime. Kundha Singh did not perform any marriage with defendant -Boli nor Boli ever resided with Kundha Singh during his life time. Will dated 27.2.2001 has been claimed to be forged and fabricated and is null and void. Mutation sanctioned on the basis of said Will is also claimed to be null and void and not binding upon the rights of the plaintiff. Will dated 27.2.2001 does not bear thumb impression of Kundha Singh. Plaintiff also alleged that the defendants got sanctioned mutation No. 4155 and also got prepared a decree in connivance with revenue official and Nambardar Maghar Singh, Darshan Singh and Naib Singh, Sarpanch. Plaintiff claimed that if the plaintiffs are not proved to be in exclusive possession of one third share in the land in question and then a decree for joint possession be passed.

(3.) Defendant No. 1 contested the claim of the plaintiff on all counts. It is admitted that the disputed property was owned and possessed by Kundha Singh during his life time. The defendants inherited the disputed property after the demise of Kundha Singh. Defendant No. 1 claimed herself to be widow of deceased Kundha singh. Marriage of Kundha Singh was solemnized with Boli in accordance with Anandkaraj. Boli cohabited with Kundha Singh during his life time and served him. Plaintiffs have no concern with Kundha singh deceased. Plaintiffs are not the nieces and nephews of deceased Kundha Singh. Plaintiffs want to encroach upon the estate of Kundha Singh by introducing falsehood and alleging themselves to be close relatives of Kundha Singh. Kundha Singh remained in the company of defendant and plaintiffs were not having any relation with Kundha Singh. Kundha Singh executed Will dated 27.2.2001 in the presence of marginal witnesses and on the basis of that Will, the defendants inherited the estate of Kundha Singh in equal share. Kundha Singh was an old man at the time of his death and the defendants performed his last rites. Defendants also alleged that Kundha Singh never performed any karewa marriage with Surjit Kaur during his life time and the said karewanama is a forged and fabricated document prepared by the plaintiffs in connivance with attesting witnesses. The question of karewa with Surjit Kaur did not arise once Boli was married to him. The estate of Kundha Singh has been mutated in favour of defendants on the basis of Will. Defendants also alleged that in case, validity of Will is not proved, then the defendant No. 1 is the only legal heir of Kundha Singh who has inherited his estate. Similarly, defendant numbers 2 to 4 also contested the claim of the plaintiffs. They have also admitted the factum of marriage of Boli with Kundha Singh and she cohabited with Kundha Singh during his life time as his wife and performed all matrimonial duties. Factum of Will dated 27.2.2001 has been pressed into service having been executed in the presence of marginal witnesses and the said Will is claimed to be the last Will of Kundha Singh. The defendants inherited the estate of Kundha Singh in equal shares i.e. 1/4th each on the basis of Will. Mutation has been rightly sanctioned in their favour.