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2015 Supreme(P&H) 1004
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mrs.Justice Sneh Prashar
RSA-3571 of 1987
Udmi (since deceased) through Lrs.
v.
Birbal (since deceased) through Lrs.
{Decided on 29/01/2015}
For the Respondents:Mr.C.B.Goel, Advocate and Mr.RS Tacoria, Mr.Nitin Jain, Mr.Sumeet Sheokand, Advocates.
Headnote:Injunction--Possession--Plaintiff not in possession of suit land, therefore their suit for prohibitory injunction not maintainable.
Injunction--Principles regarding prohibitory injunction relating to immovable property; summarized.
Will--Suspicious Circumstances--Wrong mentioning of state of health--Will discarded.
(A) Specific Relief Act, 1963, S.37 & S.38--Injunction--Possession--Plaintiff not in possession of suit land, therefore their suit for prohibitory injunction not maintainable--Merely by adding a line in the prayer clause that in case during the pendency of the suit, the possession is taken over from them by the defendants, the suit be treated as ‘a suit for possession’, was not enough to hold that the suit was maintainable in the form it was filed. (Paras 13 & 14)
(B) Succession Act, 1925--Will--Suspicious Circumstances--Wrong mentioning of state of health--Recital in will that testator was healthy--Whereas it was an admitted fact that she was suffering from diseases like Cancer and Asthma--Held; had she been in a sound and disposing mind she could have mentioned he factum of her ill health as a reason for executing the will--Will discarded.
Expert opinion deposed that long term cancer adversely effects the mental capacity of a patient--The patient is unable to co-relate the facts and his decisive power becomes weak--In the case of Smt.Chandori she was also a chronic patient of asthma--After a period of 3-1/2 months of the operation she died--In view of her illness her mental and physical capacity during her last days can be very well assessed and the conclusion manifest is that she was not in a sound and disposing mind at the time the impugned Will is alleged to have been executed. (Para 46)
(C) Succession Act, 1925--Will--Suspicious Circumstances--Unknown attesting witnesses--A person who voluntarily desires to execute a Will would naturally take his/her acquaintance or relative with him/her with whom he/she can confide for attestation of a Will--In present case, both the attesting witnesses knew nothing about testator, it only shows that neither they were nor acquaintance not they were present with her when the will was executed/thumb matched by her--Will held to be not validly executed. (Para 41)
(D) Succession Act, 1925--Will--Burden of Proof--All suspicious circumstances surrounding the Will have to be dispelled to the satisfaction of the Court failing which, the Will has to be discarded. (Para 47)
(E) Specific Relief Act, 1963, S.37--Injunction--Principles regarding prohibitory injunction relating to immovable property; summarized--
(i) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie;
(ii) A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction--But a person in wrongful possession is not entitled to an injunction against the rightful owner;
(iii) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction;
(iv) A person out of possession cannot seek the relief of injunction simpliciter, without claiming the relief of possession;
(v) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction
(vi) Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. (Para 15)
Mrs. Sneh Prashar, J.: - Assailing the judgment and decree dated 26.9.1987 passed by learned Additional District Judge, Narnaul vide which the judgment and decree dated 24.1.1985 of learned Sub Judge 1st Class, Narnaul, was reversed and the suit filed by Birbal and others, respondents-plaintiffs was decreed, Udmi and others, defendantsappellants preferred the instant appeal.
2. The facts garnered from the record are as under:-
Smt. Chandori @ Chando widow of Sanwal Ram son of Jai Karan, resident of village Sareli was owner in possession of the land measuring 194 Kanals 6 Marlas (details of which, as per the jamabandi for the year 1972-73, were given in para no.1 of the plaint) situated in Village Sareli, Tehsil Narnaul (hereinafter referred to as ‘the suit land’). She executed a Will on 8.4.1978, registered on 17.5.1978 bequeathing the suit land in favour of Birbal and others, plaintiffs-respondents (hereinafter referred to as the plaintiffs). Smt. Chandori died on 11.4.1978. Plaintiffs Birbal and others claimed that they had become owners in possession of the suit land on the basis of the Will left by Smt. Chandori.
Praying for a permanent prohibitory injunction the plaintiffs sought to restrain Udmi and others defendants-appellants (hereinafter referred to as the defendants) from interfering in their possession over the suit land. They also added that in case Udmi and others succeed in taking possession during the pendency of the suit, their suit be treated as ‘a suit for possession’.
3. The suit was contested by the defendants-appellants no.1, 2 and 4 to 9. Defendant No.3 Tara Chand being father of plaintiffs Birbal and others admitted their claim in entirety.
In the joint written statement filed by the contesting defendants, it was admitted that Smt. Chandori was owner in possession of the suit land, but they denied that she executed any Will in favour of plaintiffs Birbal and others. According to them, Smt. Chandori was an old lady, aged 70 years and was suffering from various diseases, like Asthma and Cancer, because of which, she was mentally upset and was thus, not in sound and disposing state of mind. They alleged that in case plaintiffs Birbal and others or their father had prepared a Will in collusion with the witnesses or had brought Smt. Chandori to Narnaul or to some other place on the pretext of treatment or on some other ground and obtained her thumb impressions on some papers, such document was not binding on their rights.
Impugning the alleged Will dated 8.4.1978, the contesting defendants pleaded that Smt. Chandori died just after three days of the execution of the alleged Will due to illness; no respectable person of Village Sareli or anyone out of the defendants was joined as a witness to the Will; and the Will was got registered after her death. The said circumstances clearly indicate that the Will was based on collusion and misrepresentation. Submitting that no notice was given to them at the time of registration of the Will and they being in possession of the suit land as owners after the death of Smt. Chandori the plaintiffs had no locus standi to file the present suit and the suit for prohibitory injunction was not maintainable, the defendants prayed for dismissal of the suit.
4. Plaintiffs Birbal and others filed replication denying the averment of defendants Udmi and others that Smt. Chandori was not in a sound mental state at the time of execution of the Will and reasserted their claim as put-forth in the plaint.
5. On the pleadings of the parties, the learned trial Court settled the following issues:-
1. Whether plaintiffs are the owners of the land in dispute by way of Will?OPP
2. Whether they are in possession thereon?OPP
3. If No.2 is proved, whether they are entitled for possession?OPP.
4. Whether plaintiffs have no locus standi to file the suit?OPD.
5. Whether suit is not maintainable in the present form?OPD.
6. If No.1 is proved, whether the Will is based upon fraud, mis-representati
