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2019 Supreme(P&H) 1963
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Ravi Ranjan, J.
Pardeep Kumar - Appellant
Versus
Renu Kumari - Respondent
RSA No. 6348 of 2018 (O&M)
Decided On : 14-05-2019
Mr. Sandeep Saini, Advocate, for Mr. Sukhdeep Parmar, Advocate for the Appellant.
The validity of a Will under the Evidence Act and the exclusion of necessary parties in a property dispute.
Headnote:
Will - Property Dispute - Evidence Act, Section 68, Section 69 - The court discussed the validity of the Will and its execution, considering the death certificates of the attesting witnesses and the testimony of the scribe. The court also highlighted the reasons for the exclusion of other siblings from the Will and the possession of the property by the plaintiff. The court rejected the argument of non-joinder of parties and affirmed the judgment and decree in favor of the plaintiff.
Fact of the Case:
The plaintiff filed a suit seeking declaration of exclusive ownership of a residential house based on a registered Will executed by her father. The defendant claimed ownership based on an oral family settlement and raised technical issues regarding the suit's maintainability.
Finding of the Court:
The trial court decreed the suit in favor of the plaintiff, which was affirmed by the first Appellate Court. The regular second appeal was filed challenging the judgment and decree.
Issues: The issues included the validity of the Will, non-joinder of parties, and the plaintiff's possession of the property.
Ratio Decidendi: The court rejected the argument of non-joinder of parties, discussed the validity of the Will under Evidence Act Sections 68 and 69, and considered the reasons for the exclusion of other siblings from the Will and the plaintiff's possession of the property.
Final Decision: The appeal was dismissed as the court found no merit in the grounds presented by the appellant.
JUDGMENT
Ravi Ranjan, J. (Oral ) - Challenge has been made in this appeal to the judgment and decree dated 15.05.2018 passed by the Additional District Judge, Patiala in Civil Appeal/CSI No.572/2016/126/27.09.2016 by virtue of which he has dismissed the appeal and has affirmed the judgment and decree dated 08.09.2016 passed by Civil Judge (Junior Division), Nabha. The trial Court, by aforesaid judgment and decree, has decreed the suit filed by the plaintiff-respondent Renu Kumari.
2. Brief facts of this case which would be necessary for consideration of the lis, stand enumerated as under:
The plaintiff-respondent Renu Kumari filed a suit seeking declaration that she is exclusive owner in possession of the residential house measuring 51 Sq. Yards fully described at the foot of the plaint and also for direction to the defendant No.2 to enter her name in the municipal record in accordance with the registered Will dated 11.10.1989 executed by Hans Raj (since deceased) her father, in her favour. It appears that the suit was initially filed impleading the general public as well as Municipal Committee, Nabha, through its Executing Officer only. However, subsequently, petition was filed by the defendant/appellant Pardeep Kumar under order 1 Rule 10 of the Code of Civil Procedure for impleading him as a party which was allowed. He filed written statement taking a stand that the deceased-Hans Raj was residing with him and he is owner in possession in the suit property in view of the family settlement made earlier under which the same was allotted in his favour. Let it also be noted that on notice having been issued to the defendants No.l and 2, none had appeared and subsequently, the suit was dismissed as withdrawn so far as against respondent no.2 i.e. Municipal Committee is concerned.
3. The relationship between the parties is admitted as they are sister and brother. It is also admitted that the plaintiffs matrimonial house is at Rajpura. As per the defendant-appellant, she is residing there permanently and not in the suit property. The defendant-appellant also claimed in the written statement that Hans Raj used to reside with the defendant in the suit house and had never executed any Will in favour of the plaintiff and as such, the Will is false, forged and fabricated document prepared by the plaintiff for the purpose of grabbing the suit property of the defendant. Further case of the defendant-appellant is that he is in possession of the suit property as owner qua the oral family settlement made earlier which stands proved in the civil suit titled as Pardeep Walia Vs. Raj at Walia etc. and the plaintiff has concealed the aforesaid facts. Other technical issues regarding maintainability of suit and lack of any cause of action or locus standi etc. were also taken.
4. Upon consideration of rival pleadings, the trial Court framed following issues:
1) Whether plaintiff is entitled for declaration as well as mandatory injunction as prayed for ? OPP.
2) Whether suit of the plaintiff is neither maintainable nor competent in its present form? OPD.
3) Whether plaintiff has got no cause of action or locus standi to file the present suit? OPD.
4) Whether suit of plaintiff is false, frivolous and vexations? OPD.
5) Whether plaintiff has not come to the Court with clean hands ? OPD.
6) Whether plaintiff is estopped from filing the present suit by her own act and conduct? OPD
7) Relief.
5. In order to prove the issue No.l, the plaintiff Renu Kumari examined herself as PW-3 and brought on record the original Will dated 11.10.1989 executed by her father Hans Raj (Ex.P-1). To prove the Will, she examined PW-1 Harish Jindal, son of Mohinder Pal Jindal, the marginal witness of the Will in question. The PW-1 has identified the signature of his father on the Will. The scribe of the Will v.i.z. Rakesh Kumar deposed through his affidavit Ex.DW2/A and he identified his signature on the Will in question and certified copy of his Register bearing entry No. 115
