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2009 Supreme(P&H) 548
2009(2) LAW HERALD (P&H) 1000
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Vinod K.Sharma
RSA No. 1080 of 1991
Raghbir Singh (D) tho. LRs.
v.
Jarnail Singh (D) tho. LRs.
{Decided on 21/03/2009}
For the Appellants No.1 and 2:Mr. M.L. Sarin, Sr. Advocate, with Ms. Alka Sarin, Advocate.
For the Appellant No.3:Mr.R.K.Joshi, Advocate.
For the Respondent No.1:Mr.V.K.Jain, Sr.Advocate, with Mr.Prashant Vashisth, Advocate.
For the Respondent No.2:Mr.Arun Jain, Sr. Advocate, with Mr. Amit Jain, Advocate.
IMPORTANT POINT
Will--Will did not stipulate as to what would happen in case wife preceased executant--Bequeath in favour of wife lapsed and property in her share was to be treated intestate--Her share was to inherited by all legal heirs as per law of succession.
Headnote:(A) Registration Law--Collusive decree--Validity of--Family settlement--Suit filed on basis of family settlement admitted by ‘R’ who suffered consent decree--Possibility of fraud and misrepresentation missing as ‘R’ did not challenge decree during his lifetime--Specific mention of decree in will executed by ‘R’ in favour of defendants (son) excluding plaintiff (sons)--No fault in finding that in view of transfer in favour of son decree did not require registration--Registration Act, Section 17(2) (vi). (Para 46)
(B) Family Settlement--Will--Validity of--Subscribe proved execution of Will--Attesting witnesses dead--Factum of previous will duly referred in subsequent will by executant--No suspicious circumstances surrounding the Will as reason for bequeathing property in favour of defendants no.1 and 2 (sons) was mentioned by executant--Second will holograph which is admittedly written by executant with his own handwriting--No evidence led to show that testator was not of sound disposing mind--Validity of Will upheld--Succession Act, 1925, Section 63. (Paras 48, 50 & 52)
(C) Registration Law--Will--Will did not stipulate as to what would happen in case wife preceased executant--Bequeath in favour of wife lapsed and property in her share was to be treated intestate--Her share was to inherited by all legal heirs as per law of succession--Succession Act, 1925, Section 105. (Paras 12 and 13 II)
Vinod K.Sharma, J.:- This order shall dispose of RSA No.1080 of 1991 and RSA No. 548 of 1991 titled as Raghbir Singh (dead through LRs.) & Ors. Vs. Jarnail Singh (dead through Lrs.) & Ors., and Tara Singh Vs. Raghbir Singh (dead through LRs.) & Ors., respectively, as both these appeals have arisen out of the common judgment and decree passed by the learned courts below.
2. Both these regular second appeals are directed against the judgment and decree dated 15.2.1991 passed by the learned Additional District Judge, Hoshiarpur in a suit for joint possession and declaration filed by the plaintiffs Raghbir Singh and others.
3. The plaintiff/respondents brought a suit for joint possession of 3/8th share in the suit property situated in the revenue estate of village Methiana, Tehsil and District Hoshiarpur. The plaintiffs also sought declaration that they are entitled to get land measuring 1 kanals 19 ½ marlas of equal value at the time of partition in lieu of their 1/8th share in 11 kanals 16 marlas of land.
4. Pleaded case of the plaintiffs was that Captain Rai Singh was the owner of suit property detailed in the plaint. Plaintiffs and defendants were the sons and daughters of Captain Rai Singh who died on 4.4.1983.
5. The plaintiffs claimed that Jarnail Singh and Tara Singh defendants No.1 and 2 obtained collusive decrees dated 5.1.1974 and 1.12.1976 in respect of the property bearing No.13/43 and two taurs bearing No.19/1 and 18 in favour of defendant No.1 and property measuring 79 kanals 14 marlas in favour of defendant No.2. Litigation was said to be collusive to deprive the plaintiffs of their rights and interest of the suit property.
6. The case set up by the plaintiffs was that these collusive decrees were not binding on them who have vested right and interest in equal shares in the estate of their deceased father Captain Rai Singh. Possession of the defendants over the suit property was said to be that of a licencee which stood terminated with the death of Captain Rai Singh on 4.4.1983 and thereafter the parties became co-sharers. The plaintiffs being the legal heir of Captain Rai Singh were entitled to 1/8th share each in the suit property and also to the joint possession. It was further pleaded that Jarnail Singh, defendant No.1 sold land measuring 11 kanals 16 marlas out of 127 kanals 12 marlas which has not been included in the present suit and the plaintiffs were, therefore, entitled to get chahi land measuring 1 kanal 9 ½ marlas of their 1/8th share of equal value from Jarnail Singh at the time of partition. Defendants were asked many times to admit the claim of the plaintiffs but they failed to do; hence the suit was filed.
7. Suit was contested by the defendants by raising preliminary objections that the suit was not properly valued for the purposes of court fee and jurisdiction. Plea of limitation was also raised. It was also the case of the defendants that the suit was bad for non-joinder of Ajit Singh etc.
8. On merits, it was pleaded that the suit property was selfacquired property of Captain Rai Singh who died on 5.4.1983 and not on 4.4.1983. Captain Rai Singh acquired the land and built up house in Chak No.84, Layalpur District now in Pakistan and in lieu of that property the suit property and houses were allotted to him after partition of the country in 1947. Plaintiffs were said to have been imparted best education by Captain Rai Singh and they are all well placed.
9. Defendants No.1 and 2 could not get education and they worked with Captain Rai Singh in resettling and cultivation of land allotted in village Mithian, therefore, a registered Will was executed on 11.12.1963 with the sole intention of settling his property among his heirs by way of family settlement. Will was said to be reflection of mind of Captain Rai Singh about the services rendered by defendants No.1 and 2. Defendant No.1 was given land measuring 112 kanals in pursuance to the family settlement dated 11.12.1963 and also the houses and tau
