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2016 Supreme(P&H) 1233
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DARSHAN SINGH, J.
Bimal Kumar - Appellant
Versus
Guljinder Singh - Respondent
R.S.A No.3762 of 2016 (O&M)
Decided On : 03-08-2016
For the Appellant :Ms. Puja Chopra, Advocate.
The central legal point established in the judgment is that the executor of a will can only convey the rights they possess, and it is essential to establish title to seek relief of declaration and injunction.
Headnote:
Will - Property Ownership - [Indian Succession Act, 1925, Section 57] - The court discussed the ownership rights conveyed through a will and the limitations of such conveyance. It highlighted the importance of establishing the title to seek relief of declaration and injunction. The court emphasized that the executor of the will can only convey the rights they possess, and in this case, the appellant failed to establish the ownership rights of the suit property in their favor.
Fact of the Case:
The appellant filed a suit for declaration of ownership and sought a permanent injunction over a disputed land based on a will executed in their favor. The defendant did not contest the suit, and the trial court dismissed the suit, which was upheld by the appellate court. The appellant appealed against the dismissal.
Finding of the Court:
The court found that the appellant failed to establish their title to the suit property based on the will executed in their favor. It concluded that the appellant was not entitled to the relief of declaration and injunction as prayed for.
Issues: The main issue was whether the appellant could establish their ownership rights to the suit property based on the will executed in their favor.
Ratio Decidendi: The court held that the appellant could only convey the rights possessed by the executor of the will. It emphasized the importance of establishing title to seek relief of declaration and injunction.
Final Decision: The appeal was dismissed, and no costs were awarded to the appellant.
DARSHAN SINGH, J.
The present appeal has been preferred against the judgment and decree dated 17.08.2015 passed by learned Additional District Judge, Ludhiana, whereby the appeal filed against the judgment and decree dated 08.02.2013 passed by the learned Civil Judge (Jr. Division), Ludhiana, has been dismissed.
2. For the sake of convenience, the status of the parties is being mentioned as in the original suit.
3. The appellant-plaintiff has filed the suit for declaration to the effect that he is owner in possession of land measuring 5B-13-B-6B Pukhta, comprised in Khewat no. 148, 181, 255, Khatauni No. 179, 214, 294, Khasra No.943, 924/1, 945, 944 as per jamabandi for the year 2004-2005, situated at Village Lohara Hadbast no. 260, Tehsil and District Ludhiana. In consequential relief, he has sought the decree for permanent injunction restraining the defendant-respondent from alienating and further interfering in peaceful possession of the plaintiff over the property in dispute.
4. As per the averments in the plaint, the land in dispute was owned by Shardha Nath Chela Shri Hukam Chad being Ba-itamam of Khuhi Partape Wali, Village Lohara Tehsil and District Ludhiana. Shri Shardha Nath appointed Shri Balwant Nath as his Chela. Said Balwant Nath was taking care of the entire property on behalf of Shardha Nath. Shardha Nath died on 02.03.1975. After his death, Balwant Nath succeeded his entire estate on the basis of inheritance. There is a Thakardwara in the suit land and Balwant Nath being head of said Thakardwara was taking care of all the suit land. However, he failed to get the mutation sanctioned in his name in the revenue record. Balwant Nath appointed the plaintiff as Chela and the plaintiff was looking after Balwant Nath in his old age. He was very happy with his services and being satisfied with his services, he bequeathed the suit land in favour of the plaintiff by executing the legal and valid Will dated 09.04.2001 in his sound disposing mind in the presence of the marginal witnesses. Balwant Nath expired on 20.10.2003. After his death, the plaintiff is taking care of the entire suit land and also looking after the Thakardwara. The defendant in the garb of some forged Will dated 15.07.2003 approached the revenue authorities for sanctioning of the mutation in his favour, but the said mutation was held as disputed. Now, the defendant is threatening to dispossess the plaintiff from the suit land and to alienate the same. Hence the suit.
5. Defendant-respondent did not appear to contest the suit and was proceeded against ex-parte.
6. On appreciating the evidence on record and the contentions raised by learned counsel for the parties, the learned trial Court dismissed the suit vide impugned judgment and decree dated 08.02.2013.
7. Aggrieved with the aforesaid judgment and decree, he preferred the appeal. The same has also been dismissed by the learned First Appellate Court, vide impugned judgment and decree dated 17.08.2015. Hence, this Regular Second Appeal.
8. I have heard Ms. Puja Chopra, Advocate, learned counsel for the appellant and have carefully gone through the paper book.
9. Imitating the arguments, learned counsel for the appellant contended that execution of the Will dated 09.04.2001 by deceased-Balwant Nath in favour of the plaintiff is not disputed. The plaintiff has led sufficient evidence to establish the execution of the Will dated 09.04.2001. She contended that whatever right Balwant Nath was having have been acquired by the present appellant by way of the Will dated 09.04.2001. She contended that the learned Courts below were not justified to dismiss the entire suit of the plaintiff. The plaintiff could have been given the relief which is permissible under law on the basis of the Will dated 09.04.2001 executed by Balwant Nath in favour of the appellant.
10. I have duly considered the aforesaid contentions.
11. The plaintiff has filed the suit for declaration to the effect that he is owner in possession of
