GURBAX SINGH Vs. KAUSHALYA DEVI & ORS

JUDGEMENT

(1.) The present Regular Second Appeal under Section 100 of the Code of Civil Procedure is maintained by the appellant against the judgment and decree, dated 17.4.2006, passed by the learned District Judge, Bilaspur, District Bilaspur, H.P, in Civil Appeal No.16 of 2001, whereby the learned Appellate Court below has affirmed the judgment and decree passed by learned Sub Judge 1st Class, Bilaspur, District Bilaspur, in Civil Suit No.169/1 of 1997, dated 31.10.2000.

(2.) Briefly stating facts giving rise to the present appeal are that respondents/plaintiffs (hereinafter referred to as 'plaintiffs') filed a suit for declaration against the appellant/defendant (hereinafter referred to as 'defendant') alleging that plaintiffs and proforma defendants are owner-in-possession of the land comprised in Khasra Nos.328, 342, 364, 409 and 500, Khewat No.160, Khatauni No.183, measuring 14-19 bighas (hereinafter referred to as 'the suit land') situated in Village Behal, Pargana Fatehpur, Sub Tehsil Shri Naina Devi Ji, District Bilaspur, H.P, to the extent of one share each being legal heirs of deceased Ganga Ram. Defendant No.1 has no right, title or interest over the suit land. Plaintiffs and proforma defendants are daughters of Ganga Ram, all are married and residing at the house of their in-laws. Ganga Ram expired on 4.3.1994 and his daughters being Class-I heirs, have succeeded to his entire estate, vide mutation No.1771, dated 5.5.1994. Defendant No.1 being son-in-law of Ganga Ram (deceased), proclaiming that a Will was executed in his favour by his father-in-law and on the basis of said Will, he is interfering in the ownership and possession of the plaintiffs and proforma defendants. Smt. Geeta Devi wife of Ganga Ram, had already expired on 10.5.1991, plaintiffs and proforma defendants No.3 & 4 being daughters, are the legal heirs of Ganga Ram. It is averred that an appeal was preferred against mutation No.1771, before the learned Collector, alleging that a Will has been executed by Ganga Ram in favour of defendant No.1 and Prittam Singh husband of proforma defendant No.1, who had already expired on 30.10.1989, but the learned Collector ordered that Prittam Singh, had inherited one half share of the property of Ganga Ram and his share is to be inherited by his widow, which is wrong and illegal. Ganga Ram had only four daughters and they were taking care and serving Ganga Ram, during his life time. There was no occasion for Ganga Ram, to execute any Will in favour of Pritam Singh and Gurbax Singh and the alleged Will, which was presented before Revenue Officer, after the death of Ganga Ram, is fake document. Ganga Ram during his life time never disclosed the factum of Will to his daughters nor he had any intention to execute any Will and Ganga Ram had all love and affection for his daughters till his death. There was no occasion for him to disinherit the natural heirs. After decision of the learned Collector, defendants are threatening to dispossess the plaintiffs from the suit land.

(3.) The suit was resisted and contested by defendants by filing their joint written statement alleging that two daughters of Ganga Ram, namely, Sikander Kaur and Sagar Kaur, were married to Prittam Singh and Gurbax Singh and their husbands were looking after Ganga Ram during his life time. The plaintiffs and their husbands never rendered any services or take care of Ganga Ram during his life time. Ganga Ram died on 4.1993, during his life time, he had executed a registered Will No.13 dated 5.2.1986 and the mutation of inheritance of Ganga Ram vide mutation No.1771 dated 5.5.1994 was sanctioned and attested by Assistant Collector 1st Grade, Swarghat, ignoring the registered Will. The said mutation was challenged before the learned Collector and the learned Collector, vide its order dated 4.2.1997, accepted the appeal qua share of appellant Gurbax Singh (defendant No.1). The share of Prittam Singh, who had pre-deceased Ganga Ram was given to the plaintiff and defendants No.2 and 3 in equal share, which order was challenged by the plaintiffs before the learned Divisional Commissioner. Ganga Ram, during his life time has executed a valid Will in presence of the witnesses. The learned Collector has wrongly sanctioned the mutation qua share of Pritam Singh in favour of the plaintiffs and proforma defendant No.2. After the marriage of daughters of Ganga Ram, Gurbax Singh and his brother Pritam Singh, was looking after Ganga Ram and his wife and he was happy with their service and executed a Will of his entire property in the name of Gurbax Singh and Prittam Singh (deceased). The plaintiffs have rightly been ignored since they have never served their father during his life time and were not taking care of him and the property in dispute is stated to be in possession of defendant No.1, during life time of Ganga Ram.