SHAM KAUR Vs. TEJA SINGH

JUDGEMENT

(1.) DEFENDANTS are in appeal. Both the Courts below have decreed the suit of the plaintiff to the effect that decree dated 23.10.1986 in favour of Sham Kaur is null and void and ineffective against the rights of the plaintiff, who was held to be entitled to succeed to the land in dispute along with defendants in equal share and consequently, restrained the defendants from alienating the suit land in respect of the share of the plaintiff, who was also held to be entitled to joint possession.

(2.) IN brief, the facts of the case are that Sardara Singh and Sham Kaur were husband and wife. They had five sons Teja Singh, Gurdev Singh, Nirmal Singh, Malkiat Singh and Jugraj Singh. Sardara Singh executed an unregistered Will dated 2.4.1978 bequeathing his entire property to his wife Sham Kaur and died on 28.6.1984. After the death of Sardara Singh, Sham Kaur filed Civil Suit No. 257-1 on 29.8.1986 for possession as owner and mortgagee claiming herself to be the sole heir of Sardara Singh on the basis of Will dated 2.4.1978. In this suit, all the five sons filed joint written statement and contested her claim. After Sham Kaur, who was the plaintiff in that suit closed her evidence, Malkiat Singh one of the defendants and Sh. V.K. Bansal, counsel for the defendants, made a statement in the Court on 23.10.1986 that they do not want to lead any evidence. Consequently, the suit was decreed on 23.10.1986 by the Court of Sh. B.J. Nangli, Sub Judge, Zira.

(3.) DEFENDANTS resisted the suit and filed joint written statement. In the preliminary objections, it was claimed that the suit is barred by principles of res judicata as in Civil Suit No. 257-1 of 1986, they had engaged Sh. V.K. Bansal, Advocate, filed joint written statement and that suit was decided on merits wherein the Will in question has been upheld. It was also pleaded that mutation of inheritance was wrongly sanctioned in favour of natural heirs of Sardara Singh because he had executed a valid Will in favour of Sham Kaur which has been upheld by the Civil Court. According to the defendants, Teja Singh had been attending the Court and the suit has been decided in his presence. Teja Singh also filed replication to the written statement filed by the defendants.