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2007 Supreme(P&H) 2244
2007(3) LAW HERALD (P&H) 2174
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Mahesh Grover
R.S.A.No.783 of 1989
Smt. Gurmail Kaur
v.
Smt. Jaswant Kaur
{Decided on 22/12/2006}
For the Appellant:Mr. R.K. Battas, Advocate.
For the Respondent:Mr. Rajiv Kataria, Advocate.
IMPORTANT POINT
Will executed by a person of unsound mind— Will is a piece of suspicious document and held to be null and void.
Pleadings—Mere absence of the words in the payer clause would not defuse the controversy.
Headnote:(A) Will—Will executed by a person of unsound mind—Unregistered Will attested by five witnesses—Interspacing in the Will—Will does not disclose any reason as to why the other natural heirs were excluded from the list of beneficiaries—Language of the Will reveals a professional hand—No citation as to what had prompted the testator to executed the Will—Held; Will is a piece of suspicious document and held to be null and void. (Para 22)
(B) Civil Procedure Code, 1908, Section 100—Second appeal—Perverse findings of fact—Miscarriage of justice—The Court cannot shut its eyes—Findings can be set aside. (Para 23)
(C) Civil Procedure Code, 1908, Section 100—Pleadings—The pleadings are not to be construed in such a hypertechnical manner—To be seen whether allegations gave sufficient notice to the contesting parties—Mere absence of the words in the prayer clause would not defuse the controversy—The Court is not precluded from examining the contents of the plaint to see for itself the true nature of the dispute. (Para 24)
(D) Civil Procedure Code, 1908—Findings of Trial Court—Conclusion drawn by the trial Court should ordinarily be accepted—Trial Court had the privilege of watching and observing the demeanor of the witness. (Para 19)
(E) Civil Procedure Code, 1908--Collusive Decree—No details had given in the plaint as to how plaintiff came to be the owner in possession of property—Neither any family settlement nor any gift pleaded therein—Defendant ‘P’ was of unsound mind—Decree obtained by practicing fraud—Held; to be null and void—Not finding on the rights of the parties. (Para 21)
Mahesh Grover, J.:-This judgment will dispose of Regular Second Appeal no.1130 of 1989 as well.
2. The plaintiff is in Regular Second Appeal against the judgment of the learned Addl. District Judge, Patiala hereinafter referred to as the ‘first appellate court’) dated 31.1.1989 by which the judgment of the learned trial court dated 22.12.1984 was reversed resulting in the dismissal of the suit filed by the plaintiff-appellant.
3. It would be necessary to advert to the pedigree table depicting the relationship of the parties to the dispute:
Gopal
Puran
--------------------------------------------------------------------------------------------------------
Bhag Singh Ram Kishan Piara Singh died
@Harchand Singh issueless and without
wife on 23.10.1978
------------------ Gurdev Kaur wife
Amarjit Kaur Mukhitar Kaur Jaswant Kaur daughter
wife wife defendant No.1
Surinder Kaur Gurmail Kaur
daughter daughter
defendant No.2 plaintiff
4. The plaintiff-appellant filed a suit seeking declaration to the effect that she is the joint owner of the suit property being 1/3rd share in the land of Piara Singh whose individual share was 1/3rd in the entire land measuring 467 Bighas 5 Biswas situated in village Dhanaura. It was prayed that the plaintiff-appellant was also entitled to possession of the suit property.
5. Piara Singh whose estate is in dispute was recorded to be the owner in possession of 1/3rd share of the agricultural land measuring 467 Bighas 5 Biswas which was a joint khewat with the plaintiff-appellant and respondent No.1 Smt. Jaswant Kaur and respondent No.5 Smt. Surinder Kaur (who is appellant in RSA No.1130 of 1989). The land was stated to be ancestral as it was inherited by Piara Singh from his father. Piara Singh was a bachelor and died issueless and was a lunatic from his childhood. Being of unsound mind he was incapable of managing his affairs and was mentally incapable of giving any statement or executing any document. The fact of his being of unsound mind was established in the court proceedings in which Ram Kishan alias Harcharan Singh, father of respondent No.1, was also a party. In the proceedings of the court on 13.5.1964 this fact was duly recorded. Besides, in case No.5 of 23.4.1976 under the provisions of Lunacy Act the Additional District Judge, Patiala after putting detailed questions to Piara Singh held him to be lunatic and incapable of understanding anything vide his order dated 5.6.1978.
6. It was pleaded that the plaintiff-appellant and respondent No.5 Surinder Kaur (appellant in RSA No.1130 of 1989) being the daughters of Bhag Singh and respondent No.1 being the daughter of Ram Kishan were entitled to succeed in equal shares to the land of Piara Singh and accordingly they were entitled to a decree for joint possession of the 1/3rd share each of Piara Singh who died issueless. Smt. Jaswant Kaur, respondent No.1 filed Civil Suit No.585 of 17.10.1973 in the Court of Sub Judge 1st Class, Nabha against Piara Singh and obtained a collusive decree dated 12.4.1974. It was alleged therein that she was owner in possession of 1/3rd share of his total agricultural land measuring 66 Bighas 2 Biswas which now forms a part of the suit land. In the said suit Piara Singh admitted the claim of respondent No.1 Jaswant Kaur even though he was of unsound mind and incapable of understanding import of such a statement. On the basis of the said decree the land was transferred to respondent No.1. It was pleaded that the decree aforesaid had been obtained by fraud and the same is not binding and is liable to be set aside. The aforesaid decree came to light when the mutation was sanctioned in favour of respondent No.1 by the Asstt. Collector Ist Grade vide his orders dated 30.7.1976. Jaswant Kaur also claimed to be in possession of a Will dated 9.4.1976 in her favour executed by Piara Singh. The said Will was also challenged on the ground that Piara Singh was incapable of executi
