IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 3558 of 2002 (O&M)

Reserved on : 08.09.2025 Pronounced on : 11.09.2025 Ram Murti …..Appellant.

versus Jit Singh and others …..Respondents CORAM: HON’BLE MS. JUSTICE RAMESH KUMARI.

Present : Mr. B.R.Mahajan, Senior Advocate with Ms. Prerna Malhotra, Advocate and Mr. Daanish Mahajan, Advocate, for the appellant.

Ms. Mrigank Sharma, Advocate, for the respondents.

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RAMESH KUMARI, J.

This is a Regular Second Appeal against the judgment and decree dated 30.03.2002 rendered by learned Additional District Judge (1), Panchkula, in Civil Appeal No. 211 dated 15.09.1999 vide which findings rendered by learned trial Court vide judgment dated 10.08.1999 in Civil Suit No. 136 of 1989 instituted on 08.06.1989/03.06.1996 were upheld and it was further ordered “that under the Will Ex. D1 only the property to the extent of share of Jawala Ram presuming as that the share of the parties are separated and Jawala also getting one share on such fictional partition and the Will Ex.D1 transfers only to the extent of the share of Jawala on such partition which was 1/5^th share.”

2. By way of filing the second appeal, the prayer is made for ascertaining the share of parties as per the judgment dated 30.03.2002 rendered by learned Additional District Judge (1), Panchkula.

3. The undisputed facts of the case are that Jawala son of Ram Dass was owner in possession of the land to the extent of 1/4 share of the land measuring 120 Kanals, having khewat/Khatoni Nos. 285/294, situated in village Saketri as per jamabandi Ex.P5 and to the extent of ½ share of land measuring 132 Bighas 17 Biswas having Khewat No. 358, Khatauni Nos. 910, 911 and 912, situated in village Bhoj Mataur (Baas Thapali), District Panchkula as per jamabandi Ex.P6. Jawala Ram died on 02.09.1983. Jawala Ram had four sons, namely, Matu Ram, Jit, Rachna and Ram Murti and four daughters, namely, Parbati, Sito, Soma and Amro, respectively. After his death, Jawala Ram was survived by his four sons, four daughters, named above and wife, namely, Yashoda.

4. The case of plaintiff-respondent No.1 Jit was that the suit property was joint Hindu coparcenary property and Jawala had no right to execute the Will in question qua the property where as case of defendant No.1- appellant Ram Murti is that Jawala had executed the Will Ex.D1 dated 13.01.1983 in his favour as well as in favour of his three sons, namely, Jit, Matu Ram and Rachna in equal shares and mutation was also sanctioned on the basis of said Will vide mutation No. 1878 and 1734.

5. Learned trial Court upheld that the property is joint Hindu coparcenary and the learned trial Court also upheld the legality of the Will Ex.D1 dated 13.01.1983 and decreed the suit of the plaintiff-respondent No.1 Jit that he is absolute owner and in possession of 1/18^th share of the suit land situated in village Saketri and also owner in possession of 1/9^th share in the suit land situated in village Bas Thapali.

6. On filing the first appeal by appellant-Ram Murti, learned first Appellate Court vide judgment dated 30.03.2002 held that the suit property is joint Hindu coparcenary property and since the legality of the Will Ex.D1 was also accepted, by invoking Section 30 of the Hindu Succession Act, 1956, learned first Appellate Court rendered the findings in para-17 of the judgment which are to the following effect:-

“17. Accordingly, the findings of the trial Court are upheld holding that under the Will Ex.D1, only the property to the extent of share of Jawala presuming as that the share of the parties are separated and Jawala also getting one share on such fictional partition and the Will Ex.D1 transfers only to the extent of the share of Jawala on such partition which comes to be as 1/5^th share.”

7. Being aggrieved with the observations made by learned First Appellate Court vide judgment dated 30.02.2002, this Regular Second Appeal is filed by appellant Ram Murti on the ground that the learned t