IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

111 CR-44-2025 (O&M)

Date of decision: 10.01.2025 Surender Singh Lamba ...Petitioner(s)

Vs.

Smt. Santosh and another ...Respondent(s)

CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Ajit Singh Lamba, Advocate Mr. Vivek Sheoran, Advocate for the petitioner.

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NIDHI GUPTA, J.

The defendant has filed the present petition under Article 227 of the Constitution of India seeking setting aside of judgment dated 18.09.2024 (Annexure P1) passed by the Additional District and Sessions Judge, thereby setting aside the order dated 4.10.2017 (Annexure P2) passed by the Court of learned Civil Judge, Hissar whereby application filed by the petitioner/defendant under Order VII Rule 11 CPC had been allowed; and the suit filed by the respondents/plaintiffs had been rejected.

2. Brief facts of the case are that the respondents/plaintiffs had filed a suit on 03.04.2015 (Annexure P3) for declaration to the effect that the Will dated 25.07.2014 registered at Sr. No.344 on 28.07.2014 which is shown to have been executed by late Sh. Virender Singh Lamba son of late Sh. Ramji Lal in favour of defendant/petitioner, is false, fictitious, fabricated, illegal, null and void and prepared by defendant in collusion with witnesses, scribe and official of Sub-Registrar Hissar; and mutation No.2426 sanctioned pursuant to order dated 08.01.2015 of Assistant Collector, 1^st Grade Barwala, District Hissar, on the basis of above Will is also illegal and null; and both are liable to be set aside; and as a consequential relief of permanent prohibitory injunction restraining the defendant from claiming implementing, alienating, transferring, creating any encumbrance on the basis of Will of dispossessing the plaintiffs of the land as detailed in the mutation No.2426 of village Daulatpur Sub-Tehsil Uklana, District Hissar.

3. The petitioner-defendant had duly put in appearance in the said suit and filed written statement dated 22.07.2015 (Annexure P4). Subsequently, on 17.08.2017 the petitioner had also moved present application under Order 7 Rule 11 CPC seeking rejection of the plaint claiming that the plaintiffs had no right or cause of action to challenge the Will dated 25.07.2014 (Annexure P5) executed by late Virender Singh and the consequent mutation entries on the basis of the said Will, as mother of Virender Singh namely Ram Piyari who was Class I heir, was still alive;

and therefore, during her lifetime suit of the plaintiffs is barred by law.

4. Vide order dated 04.10.2017 (Annexure P2) the said application of the petitioner filed under Order 7 Rule 11 CPC was allowed by the learned Civil Judge. The said order was challenged by respondents by way of CMA/358/2017 dated 02.11.2017 (Annexure P8), before the ld. Additional District and Sessions Judge; and vide impugned judgment dated 18.09.2024 (Annexure P1), the appeal of the plaintiffs has been allowed.

5. It is submitted by learned counsel for the petitioner that the plaint was rightly rejected by the learned trial court under Order 7 Rule 11 CPC as the plaintiffs had no cause of action. The plaintiffs had no right to challenge the Will dated 25.07.2014 executed by Virender Singh in favour of the petitioneras the Class-I heir of Virender Singh i.e. his mother namely Ram Piyari was still alive. It is submitted that Virender Singh had expired on 29.7.2014; and the plaintiffs had filed the suit during the lifetime of Ram Pyaari. Therefore, the plaintiffs - who are sisters and brother of Virender Singh, being the class-II heirs of the deceased- had no cause of action to file the present suit against the petitioner/defendant.

Thus, the plaint was rightly rejected by the learned trial Court.

6. It is submitted that in passing the impugned order the Appellate Court has sidelined the principle of applicability of Section 8 of the Hindu Succession Act, 1956. It is contended that Section 8 of the Hindu Succession Act, 1956 specifically provides that the property shall devolve