JOGINDER Vs. SALWINDER @ SURINDER

JUDGEMENT

(1.) The present appeal has been filed by the defendant-appellants to challenge the judgments and decrees passed by both the Courts below whereby suit of plaintiff-respondent for declaration with mandatory injunction was partly allowed and the appeal filed by the present appellants was dismissed.

(2.) Briefly, the facts of the case as made out in the appeal, are that plaintiff-respondent filed a suit for decree of declaration to the effect that she was owner of 1/4th share in the property which was initially owned by her father-in-law Mangal Singh and after his death, said property was inherited by his sons i.e. defendants and one Jagga @ Dharminder, who was husband of the plaintiff-respondent. After the death of said Dharminder @ Jagga, the plaintiff became owner of 1/4th share of the property of said Mangal Singh being the sole legal heir of her deceased-husband. The Claim was also made for decree of mandatory injunction directing the defendants to hand over the possession of the suit property to the plaintiff being legally wedded wife of Dharminder Singh @ Jagga, who inherited 1/4th share in the estate of Mangal Singh.

(3.) Learned counsel for the appellants submits that judgments and decrees passed by both the Courts below are illegal and were passed without having jurisdiction and without appreciation of evidence available on record. The appellants proved the case on the basis of Will dated 7.9.2011 which was duly executed by Dharminder @ Jagga by examining DW-2 Balbir Singh, Ex Member Panchayat and DW-3 Ashok Kumar, who were the attesting witnesses of the Will. The Will was not believed by the learned trial Court and it was discarded only on the ground that there were contradictions in the evidence of DW-2 and DW-3 regarding its execution. Learned counsel further submits that while discarding the Will, it was illegally and wrongly observed by the learned trial Court that Dharminder @ Jagga remained admitted in the hospital from 6.9.2011 to 9.9.2011 and the Will was executed on 7.9.2011 which creates suspicion, whereas, he was admitted on 9.9.2011 and was discharged on the same day. Learned counsel also submits that respondent-plaintiff took away all the dowry articles and the compromise was reduced into writing on 14.12.2011, which was duly proved by the appellants as Exhibit D-2 wherein it was specifically stated that she had received all the dowry articles and she will not claim any share in the property of her husband Dharminder @ Jagga. Learned counsel also submits that the trial Court had wrongly observed that in the compromise Exhibit D-2, the fact regarding execution of the Will was not mentioned whereas said Will was a separate document and there was no necessity to mention the said fact in the compromise deed. Counsel further contends that a wrong finding has been given by the learned trial Court that the deceased-husband put his signatures on the Will as Jagga whereas he used to sign as Dharminder. He submits that a question was put during cross-examination of DW-3 that 'it was wrong to suggest that the sign of Jagga was obtained on a blank paper'. Once said question was put during cross-examination, then the burden was shifted on the other party that the signatures of executant of the Will was obtained by way of fraud. At the end, learned counsel for the appellants submits that an application was moved for additional evidence but without deciding the same, the suit was decreed. He has also relied upon judgment of Honourable the Apex Court in case Jatinder Singh and another minor through mother Vs. Mehar Singh and others, 2009(1) Civil Court Cases 211 (S.C.) as well as judgment of this Court in case Kulbhushan Kumar Vs. Amrik Singh and another, 2014(3) Civil Court Cases 044 (P & H).