Neutral Citation No:=2018:PHHC:023796

RSA No.5041 of 2011 &

RSA Nos.1490, 284 and 3288 of 2012 (O&M) 1

207
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Date of decision : 01.03.2018

1. RSA-5041-2011 (O&M)

Sadhu Singh (deceased through LRs)

... Appellant(s)
Versus

Gurdeep Singh and others

... Respondents

2. RSA-284-2012 (O&M)

Gian Kaur
... Appellant(s)
Versus

Gurdeep Singh and others

... Respondents

3. RSA-3288-2012 (O&M)

Harbhajan Kaur
... Appellant(s)
Versus

Gurdeep Singh and others

... Respondents

4. RSA-1490-2012 (O&M)

Jang Singh (deceased through LRs)

... Appellant(s)
Versus

Gurdeep Singh and others

... Respondents

CORAM: HON'BLE MR. JUSTICE AMIT RAWAL

Present: Mr. Kanwaljit Singh, Senior Advocate with

Mr. Abhinav Aggarwal, Advocate
for the appellant(s) in RSA-284-2012.

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RSA No.5041 of 2011 &

RSA Nos.1490, 284 and 3288 of 2012 (O&M) 2

Mr. Ashok Aneja, Advocate

for the appellant(s) in RSA-5041-2011
for respondent No.4 in RSA-284 and 1490 of 2012,
for respondent No.7 in RSA-3288-2012.

Mr. M.K. Garg, Advocate

for the appellant(s) in RSA-3288-2012.

Mr. N.K. Manchanda, Advocate

for the appellant(s) in RSA-1490-2012.

Mr. K.R. Dhawan, Advocate

for respondent No.1 in all the cases.

****

AMIT RAWAL, J. (ORAL)

CM-8765-C-2012 IN RSA-3288-2012

For the reasons stated in the application, which is duly

supported by an affidavit, the application is allowed and the delay of 163

days in re-filing the appeal is condoned.

CM-7711-C-2017 IN RSA-1490-2012

For the reasons stated in the application, which is duly

supported by an affidavit, the application is allowed and the LRs of the

appellant-Jang Singh are ordered to be brought on record for the purpose of

prosecuting the appeal.

CM-4021-C-2012 IN RSA-1490-2012

This is an application under Order 22 Rule 2(c), Chapter 1 Part

C of the Punjab and Haryana High Court Rules and Order, read with Section

151 of C.P.C. for leave to make the applicant as appellant and to file the

RSA before this Court against the judgment and decree dated 19.09.2011.

For the reasons stated in the application, which is duly

supported by an affidavit, the application is allowed and and leave to make

the application as appellant and to file the RSA before this Court is granted.

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RSA No.5041 of 2011 &

RSA Nos.1490, 284 and 3288 of 2012 (O&M) 3

CM-4023-C-2012 IN RSA-1490-2012

For the reasons stated in the application, which is duly

supported by an affidavit, the application is allowed and the delay of 14

days in filing the appeal is condoned.

MAIN CASES

This order of mine shall dispose of four appeals bearing RSA

No.5041 of 2011 titled as “Sadhu Singh (deceased through LRs) V/s

Gurdeep Singh and others”, RSA No.284 of 2012 titled as “Gian Kaur V/s

Gurdeep Singh and others”, RSA No.3288 of 2012 titled as “Harbhajan

Kaur V/s Gurdeep Singh and others” and RSA-1490-2012 titled as “Jang

Singh (deceased through LRs) V/s Gurdeep Singh and others”, involving

identical question of law and facts.

The facts are being referred from RSA No.5041 of 2011.

A Civil Suit bearing No.334-A of 2001 was filed by Gurdip

Singh son of Gurdial Kaur son of Bhajan Singh against Gian Kaur, Sadhu

Singh, Jagsir Singh, Kuljit Singh and Harbhajan Kaur, defendant Nos.1 to 5,

respectively, claiming declaration to the effect that :-

(a) He is owner in possession of land bearing Khasra numbers

32/9/2, 12, 19, 20/2, 21, 22/1, 33//21, 32//11/1, 11/2,
33//15/21, Khewat No.65/61, 110, 199 Khatauni No.149,
251/243 and 412, as per Jamabandi for the year 1992-93
situated in the area of Village Warreh Tehsil Zira,
(b) Land measuring 13 kanals 8 marals bearing Khewat
No.205 Khatauni Nos.427 & 428 Khasra Nos.28//12/1(6-8),
12/2 (1-4), 18/1(4-18), 13/2(0-6) and land measuring 1 kanals
6 marals being 26/40 share of land measuring 2 kanals khewat
No.206 min, Khatauni Nos.439, 439 and Khasa Nos.268 min
(1-6) & 268 min (0-14) as entered in the jamabandi for the

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year 1990-91 situated in the area of Village Maddoke Tehsil

Moga and as mentioned and as mentioned in the judgment and
decree dated 22.10.94.
(c) That the plaintiff is also entitled to recover ` 70,517/-
along with interest, which has been deposited in the Punjab
and Sind Bank, Railway Raod Moga along with Locker
No.47/87 and amount of ` 246/- which has been deposited in
Punjab and Sind Bank Railway Road, Moga and an amount of
` 1,00,000/- the mortgage amount under mortgage with Surjit
Kaur for ` 1.0 lac.
(d) And a house situated in Khasra No.268 min bounded as :-
North: Road South : Gali
East: Balwant singh West: Master Sarwan Singh
situated in abadi Maddoke Tehsil Moga.
(e) A house shown in red in the attached plan bounded as
under:-
North: Atma Singh South: Farm Surjit Kaur
East: Balbir Singh West Farm Surjit Kaur
siutated in abadi of Village Warreh Tehsil Zira,”
with consequential relief of permanent injunction restraining

the defendants from dispossessing the plaintiff and from alienating in nay

manner and with alternative relief of possession of the property.

It was averred that the aforementioned land was owned by

Surjit Kaur d/o Kartar Singh wife of Kartar Singh of Village Maddoke. She

was residing in Malaysia since 1953 and had a great love and affection with

Gurdip Singh-plaintiff, who is father/son of Jeet Kaur. Surjit Kaur had no

male child and she used to treat the plaintiff as her son. Whenever, she

visited the Village, she was served by Gurdip Singh. She had executed a

Will dated 07.04.1996 bequeathing the entire estate ibid in his favour, but

the defendants denied the ownership of the same, therefore, the plaintiff was

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compelled to file the aforementioned suit. Surjit Kaur was murdered by

Sadhu Singh/defendant No.2, her real brother.

The aforementioned suit was contested by defendant No.1-Gian

Kaur, by filing written statement, whereby the Will, aforementioned, was

denied and it was stated that she died intestate and therefore, Gian Kaur

along with Sadhu Singh, being natural Class-II heirs, would have succeeded

to the share. It was also stated that the Will set up by Gurdip Singh along

with Jagseer Singh/defendant No.3 of Surjit Kaur dated 07.04.1996 was also

emphatically denied and said to be false and fabricated.

Defendant No.2/Sadhu Singh filed a written statement by

taking preliminary objection that Surjit Kaur had executed a Will dated

06.09.1975, in favour of his son Kuljit Singh/defendant No.4.

Defendant No.4 filed a separate statement by taking a plea of

non-maintainability of the suit and stated that he had become the owner by

virtue of Will dated 06.09.1975.

Defendant No.5 also filed a separate written statement by

taking preliminary objection that the plaintiff-Gurdip Singh did not have

locus standi, whereas Surjit Kaur had executed a Will dated 25.08.1995 in

favour of defendant No.5 Harbhajan Kaur.

Since the parties were at variance, the trial Court framed the

following issues:-

“1. Whether the plaintiff is entitled to declaration as prayed

for? OPP
2. Whether the plaintiff is entitled to injunction as prayed for?
OPP
3. Whether plaintiff has got no locus standi to file the present

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RSA Nos.1490, 284 and 3288 of 2012 (O&M) 6

suit? OPD
4. Whether the suit is not maintainable? OPD
5. Whether the suit is barred by principle of res judicate? OPD
6. Relief.”
The plaintiff examined Gurcharan Singh as PW-1, Mohan lal

PW2, Malkiat Singh PW3, Kuldip Singh PW4, Nazar Singh PW5, Mohinder

Kaur PW6, Sadhu Singh PW7, Vijay Bansal PW7/A, Sh. N.K. Aggarwal

PW8 and Gurdip Singh-plaintiff himself as PW8, Anil Kumar Gupta PW9

and in rebuttal, Anil Kumar Gupta PW10. He also examined Hari Krishan

Singh PW11 and tendered in evidence the documents as Ex.P33 to Ex.P38,

whereas defendant examined Gian Kaur as DW1, Sadhu Singh DW2,

Milkha Singh DW3, Baldev Kaur DW4, Harbans Singh DW5, Bohar Singh

DW6 and brought on record the documents Ex.D1 to D8 i.e. various orders,

whereby the criminal proceedings initiated against Sadhu Singh.

The trial Court on the basis of the preponderance of the

evidence upheld the Will dated 07.04.1996 executed by Surjit Kaur in

favour of Gurdip Singh as it was attested by Malkiat Singh & Nazar Singh

and written by Kuldip Singh and by holding to be in compliance of the

provisions of Section 68 of the Indian Evidence Act, decreed the suit,

aforementioned. Four appeals were filed by Gian Kaur, Sadhu Singh,

Harbhajan Kaur and Jang Singh, who had purchased some part of land from

Kuljit Singh, beneficiary of the Will dated 06.09.1995. All the appeals have

also been dismissed. Hence, the four regular second appeals.

Mr. Kanwaljit Singh, learned Senior Counsel assisted by Mr.

Abhinav Aggarwal, learned counsel appearing on behalf of the

appellant/defendant-Gian Kaur, sister of Surjit Kaur, in RSA-284-2012,

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submitted that both the Courts below have committed a gross illegality and

perversity ignoring the fact that the Will was surrounded by the suspicious

circumstances as Surjit Kaur on the next day i.e. 08.04.1996 was allegedly

murdered by her brother-Sadhu Singh, who later on was acquitted vide

judgment dated 24.01.2000, as the Will was executed at Village Kandoor

Sahib, District Ludhiana, whereas Surjit Kaur was resident of Village

Warreh, Tehsil Zira, District Ferozepur. There is no compliance of Section

63(c) of the Indian Succession Act as the desire of the testator is not crystal

clear, for, it has not come on record through the testimony of Malkiat Singh

and Nazar Singh that they had appended their signatures or thumb-

impressions on the instruction and dictation of the testator. It is mandatory

requirement of law. In support of his contentions, he relies upon the ratio

decidendi culled out by the Hon'ble Supreme Court in “Janki Narayan

Bhoir V/s Narayan Namdeo Kadam” 2003(1) RCR (Civil) 409 and as well

as the decision dated 13.12.2016 of this Court rendered in RSA No.5252 of

2012 titled as “Kanwaljeet Kaur V/s Joginder Singh Badwal (deceased

through LRs) and others”. No evidence has come on record whether at any

point of time, Surjit Kaur lived with Gurdip Singh, even, the last rites were

performed at Village Warreh and not at Kandoor Sahib or even, in the

Village of the beneficiary Gurdip Singh i.e. Village Korotana. If at all

Gurdip Singh had good relation with Surjit Kaur, bhog ceremony would

have been performed in the Village of Gurdip Singh. All these factors, if

read in cumulative, would have led to the dismissal of the suit, thus, there is

gross illegality and perversity.

Mr. Ashok Aneja, learned counsel appearing on behalf of the

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appellant-Sadhu Singh, in RSA-5041-2011, submitted that the Will dated

06.09.1995 was allowed to be led by way of secondary evidence and

therefore, no objection could have been taken that the same was not proved.

The mutation on the basis of that Will had already been effected in favour of

Kuljit Singh and as a result thereof, part of the land had been sold to Jang

Singh. Even otherwise, if the Will is not proved, he being a brother, would

have succeeded to the estate of Surjit Kaur as she had died issueless.

Mr. M.K. Garg, learned counsel appearing on behalf of the

appellant-Harbhajan Kaur, in RSA-3288-2012, submitted that Surjit Kaur

had executed a Will dated 25.08.1995, whereby she had delivered the

possession of the house i.e. property at Sr. No.D, situated in abadi deh,

village Maddoke Tehsil and District Moga and she along with her family

member is living in the property. No harm and prejudice would be caused

to her successor to be decided by this Court for not staking any claim in the

aforementioned suit.

Mr. N.K. Manchanda, learned counsel appearing on behalf of

the appellant-Jang Singh in RSA-1490-2012 submits that Jang Singh is

bona fide purchaser without notice for a valuable consideration, therefore,

his client is protected by virtue of the the provisions of Section 41 of the

Transfer of Property Act.

On the contrary, Mr. K.R. Dhawan, learned counsel appearing

on behalf of respondent No.1/Gurdeep Singh/plaintiff submitted that

umpteen number of documentary evidence brought on record weighed in the

mind of the Court to form an opinion that the Will dated 07.04.1996 was

executed by Surjit Kaur in favour of Gurdip Singh. The Courts below have

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also taken the notice of the provisions of Section 63 of the Indian

Succession Act and as well as found that there was a compliance of Section

68 of the Indian Evidence Act. All the other Wills i.e. the Will propounded

by Sadhu Singh had not been proved, even Harbhajan Kaur had also not

been able to prove the Will dated 25.08.1995 and rightly so, the same has

been discarded. Surjit Kaur was never looked after by his sister or the

brother i.e. Sadhu Singh and Gain Kaur and whenever she came India from

Malaysia, she lived with Gurdip Singh, even Gurdip Singh performed the

last rites, though, bhog ceremony was performed in the Village, where she

was residing, keeping in view the sentiments of the deceased. Gurdip Singh

had been in possession of the property. An expert had also proved the

signatures of Surjit Kaur on record from the compromise dated 20.09.1994

(Ex.P3), plaint dated 28.08.1994 (Ex.P5), vakalatnama (Ex.P4), statement

made in Court (Ex.P5), Passport as Ex.P-11 and general power of attorney

dated 22.11.1995 (PW-7/1 & PW-7/2). All these documents bore the

signatures of the deceased-Surjit Kaur. PW9-Anil Kumar, hand-writing

expert, compared the aforementioned signatures of Surjit Kaur on the Will

and other documents and opined that they were of same very person. Anil

Kumar Gupta in rebuttal also appeared as PW-10 and proved his report

(Ex.PW10-1), wherein he on comparison of signatures of Surjit Kaur on the

documents referred above opined that the signatures of Surjit Kaur on Will

dated 06.09.1995 (Ex.D3), did not tally with the signatures on her passport

Ex.P11. Jamabandi (Ex.P-9) revealed that Kartar Singh, husband of Surjit

Kaur, was the owner of the land and he had given the suit land to Surjit

Kaur by way of a decree. All these facts weighed in the mind of the Court

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below, even the civil suit was filed by Gain Kaur against general public

under Section 372 of the Indian Succession Act for claiming the succession

to the estate of Surjit Kaur, but according to Mr. Dhawan, the matter was

stayed owing to the outcome of the present regular second appeals. Non-

compliance of one of the conditions of provisions of Section 63(c) of the

Act would not render the Will invalid as the intention of testator from the

pith and substances of the Will showed that she had intended to bequeath

the entire property in favour of the plaintiff-Gurdip Singh. The concurrent

finding of fact cannot be interfered until and unless there is gross illegality

and perversity, which has not been pointed out, during the course of the

hearing, by the respective counsels, thus, urges this Court for upholding the

judgments and decrees, under challenge.

I have heard the learned counsel for the parties and appraised

the paper book as well as record of the Courts below.

The provisions of Section 63 (c) of the Indian Succession Act

provides three conditions to be complied with; (i) The Will should have

been attested by two or more witnesses, each of whom had seen the testator

either sign or affix his mark to the Will or seen some other person signing

the Will in the presence; (ii) by the direction of the testator, or has received

from the testator a personal acknowledgement of his signature or mark, or

the signature of such other person; and (iii) each of the witnesses shall sign

the Will in the presence of the testator, but it shall not be necessary that

more than one witness be present at the same time, and no particular form of

attestation shall be necessary. No doubt both the witnesses, PW3-Malkiat

Singh and PW5-Nazar Singh, have been examined by the plaintiff-Gurdip

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Singh to prove the execution of the Will and have stated that they had

signed the Will in the presence of the testator-Surjit Kaur, but the

compliance of the 2nd condition i.e. by the ''Direction'' of the testator, is

conspicuously wanting. The compliance of the aforementioned provisions

had been point of debate and consideration before the Hon'ble Supreme

Court in Janki's case (supra) and before this Court in Kanwaljeet's case

(supra), wherein it has been held that all the ingredients of Section 63(c) of

the Indian Succession Act are required to be complied with. For the sake of

brevity, the paragraph Nos.6 to 8 and 10 of Janki's case (supra) and the

relevant portion of Kanwaljeet's case (supra), read thus:-

“6. At the hearing the learned counsel for the respondent

fairly submitted that Raikar was only the scribe and he was not
the attesting witness. Even looking to the evidence of Raikar
himself it is clear that he gave evidence as the scribe. There is
nothing on record to indicate that he had any intention to
attest the Will. The attesting witness Sinkar has not stated that
the other attesting witness Wagle attested the Will in his
presence. On the other hand, he has stated that he did not see
Wagle present at the time of execution of the Will. Wagle, the
other attesting witness, being alive ought to have been
examined in order to prove the Will. Nothing is brought on
record to show that any attempt was made to examine Wagle
or there was any impediment in examining him. It is true that
although will is required to be attested by two witnesses it
could be proved by examining one of the attesting witnesses as
per Sections 68, Indian Evidence Act.
7. We think it appropriate to look at the relevant
provisions, namely, Section 63 of the Indian Succession Act,
1925 and Sections 68 and 71 of the Indian Evidence Act, 1872
which read:

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Section 63 of the Succession Act "63. Execution of

unprivileged wills.- Every testator, not being a soldier
employed in an expedition or engaged in actual warfare,
or an airman so employed or engaged, or a mariner at
sea, shall execute his will according to the following
rules:-
(a) .....
(b) .....
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark
to the will or has seen some other person sign the will, in
the presence and by the direction of the testator, or has
received from the testator a personal acknowledgement
of his signature or mark, or of the signature of such
other person;
and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary
that more than one witness be present at the same time,
and no particular form of attestation shall be
necessary."
Section 68 of the Evidence Act "68. Proof of execution of
document required by law to be attested.- If a document
is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been
called for the purpose of proving it's execution, if there
be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence:
Provided..."
Section 71 of the Evidence Act "71. Proof when attesting
witness denies the execution.- If the attesting witness
denies or does not recollect the execution of the
document, its execution may be proved by other
evidence."
8. To say will has been duly executed the requirements

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mentioned in clauses (a), (b) and (c) of Section 63of the

Succession Act are to be complied with i.e., (a) the testator has
to sign or affix his mark to the will, or it has got to be signed
by some other person in his presence and by his direction; (b)
that the signature or mark of the testator, or the signature of
the person signing at his direction, has to appear at a place
from which it could appear that by that mark or signature the
document is intended to have effect as a will; (c) the most
important point with which we are presently concerned in this
appeal, is that the will has to be attested by two or more
witnesses and each of these witnesses must have seen the
testator sign or affix his mark to the Will, or must have seen
some other person sign the Will in the presence and by the
direction of the testator, or must have received from the
testator a personal acknowledgement of signature or mark, or
of the signature of such other person, and each of the witnesses
has to sign the Will in the presence of the testator.
10. Section 68 of the Evidence Act speaks of as to how a
document required by law to be attested can be proved.
According to the said Section, a document required by law to
be attested shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving an evidence. It
flows from this Section that if there be an attesting witness
alive capable of giving evidence and subject to the process of
the Court, has to be necessarily examined before the document
required by law to be attested can be used in an evidence. On a
combined reading of Section 63 of the Succession Act
with Section 68 of the Evidence Act, it appears that a person
propounding the will has got to prove that the will was duly
and validly executed. That cannot be done by simply proving
that the signature on the will was that of the testator but must
also prove that attestations were also made properly as

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required by clause (c) of Section 63 of the Succession Act. It is

true that Section 68 of Evidence Act does not say that both or
all the attesting witnesses must be examined. But at least one
attesting witness has to be called for proving due execution of
the Will as envisaged in Section 63. Although Section 63 of the
Succession Act requires that a will has to be attested at least
by two witnesses, Section 68 of the Evidence Act provides that
a document, which is required by law to be attested, shall not
be used as evidence until one attesting witness at least has
been examined for the purpose of proving its due execution if
such witness is alive and capable of giving evidence and
subject to the process of the Court. In a way, Section 68 gives a
concession to those who want to prove and establish a will in a
Court of law by examining at least one attesting witness even
though will has to be attested at least by two witnesses
mandatorily under Section 63 of the Succession Act. But what
is significant and to be noted is that that one attesting witness
examined should be in a position to prove the execution of a
will. To put in other words, if one attesting witness can prove
execution of the will in terms of clause (c) of Section 63, viz.,
attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting
witness can be dispensed with. The one attesting witness
examined, in his evidence has to satisfy the attestation of a will
by him and the other attesting witness in order to prove there
was due execution of the will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the
requirements of attestation of the will by other witness also it
falls short of attestation of will at least by two witnesses for the
simple reason that the execution of the will does not merely
mean the signing of it by the testator but it means fulfilling and
proof of all the formalities required under Section 63 of the
Succession Act. Where one attesting witness examined to prove

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the will under Section 68 of the Evidence Act fails to prove the
due execution of the will then the other available attesting
witness has to be called to supplement his evidence to make it
complete in all respects. Where one attesting witness is
examined and he fails to prove the attestation of the will by the
other witness there will be deficiency in meeting the mandatory
requirements of Section 68 of the Evidence Act.”
Relevant portion of Kanwaljeet's case (supra)
I have heard the learned counsel for the parties and appraised
the paper book and of the view that there is a merit and force
in the submissions of Mr. Kanwaljit Singh, for, I cannot shut
my eyes in not assuming the role of Expert by taking the aid of
the provisions of Section 45 of the Indian Evidence Act. On
bare glance of the Will (Ex.DW-1/1), Bhagwant Kaur had
allegedly appended her signatures not above the typed name,
but below. When the Will finishes, there is signature of
someone which had scored off. It appears that it had been
typed on blank paper. If actually Bhagwant Kaur had to sign
the same, the defendant(s) should not have been circumspect,
rather bold enough to get the same executed and registered,
during her lifetime or even thereafter. I have also an occasion
to examine the examination-in-chief of DW-1 Dr. Harsharan
Singh, the attesting witness of the Will, who had not deposed in
terms of the provisions of Section 63 (c) of the Indian
Succession Act which reads thus:-
(c) The Will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark
to the Will or has seen some other person sign the Will,
in the presence and by the direction of the testator, or
has received from the testator a personal
acknowledgement of his signature or mark, or the
signature of such other person; and each of the
witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than one

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witness be present at the same time, and no particular

form of attestation shall be necessary.
There are two aspects of the matter that the Will has to be
attested by two witnesses and signed by one of them and the
witnesses must have been seen each other sign, but the
expression on the ''direction'' of the testator is conspicuously
wanting. The expression ''desire'' cannot be equated with the
expression ''direction'' as per the plain and simple dictionary
meaning, it does not in any way indicate that a person had
actually intended a person to do it. ''Desire'' can be
imaginary, but the ''direction'' has to be practical and specific.
All these factors, in my view, have not been looked into, much
less, seen from this angle, thus, there is a gross illegality and
perversity.”

The testimony of both the witnesses, namely, PW3-Malkiat

Singh and PW5-Nazar Singh, were read over loudly in the Court by the

respective counsel and not once, but twice, none of the examination-in-chief

mandates the requirement suffices the requirement of the expression

''direction'' of the testator and the Will is hit by the legal flaw, therefore, the

same was required to be discarded. Both the Courts below though referred

to the provisions of the aforementioned Act, but failed to go in-depth in not

noticing the legal lacuna and flaw. Keeping in view the aforementioned the

other arguments regarding suspicions circumstances are rendered

meaningless, in other words, the Will dated 07.04.1996 cannot be said to be

in existence. In the absence of the Will, it would deem to presume that

Surjit Kaur, died intestate. The relationship of Sadhu Singh and Gian Kaur

being brother and sister of Surjit Kaur, is not controverted, whereas the

plaintiff-Gurdip Singh being not collateral or a Class-II heir, but cousin

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RSA Nos.1490, 284 and 3288 of 2012 (O&M) 17

brother of Surjit Kaur i.e. son of Aunt. The other stake-holder i.e. Sadhu

Singh (since deceased) and Harbhajan Kaur, have not succeeded in proving

their respective Wills and also cannot succeed to the estate of Surjit Kaur,

much less, Jang Singh, who is stated to be a bona fide purchaser.

Since Jang Singh had acquired the right and title by looking at the

revenue record, in other words, stated to have made a reasonable inquiry in

ascertaining the title and found that Kuljit Singh son of Sadhu Singh, in

whose favour the mutation was entered, had purchased the part of the land

vide sale deeds dated 20.03.2009 and 07.01.2009, all are during the

pendency of the suit, therefore, the same would be hit by ''Doctrine Akin to

Lis Pendens'' and would have independent right, claim and damages against

the vendor, but cannot stake claim in the estate of Surjit Kaur.

No doubt, this Court, on earlier occasions had been framing the

substantial questions of law while deciding the appeals but in view of the

ratio decidendi culled out by five learned Judges of the Hon'ble Supreme

Court in “Pankajakshi (dead) through LRs and others V/s. Chandrika and

others AIR 2016 SC 1213”, wherein the proposition arose as to whether in

view of the provisions of Section 97(1) CPC, provisions of Section 41 of the

Punjab Courts Act, 1918 would apply or the appeal i.e. RSA would be filed

under Section 100 of Code of Civil Procedure and decision thereof could be

without framing substantial questions of law. The Constitutional Bench of

Hon'ble Supreme Court held that the decision in “Kulwant Kaur and others

V/s. Gurdial Singh Mann (dead) by LRs and others” 2001(4) SCC 262, on

applicability of Section 97(1) of CPC is not a correct law, in essence, the

provisions of Section 41 of the Punjab Courts Act, 1918 had been restored

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RSA No.5041 of 2011 &

RSA Nos.1490, 284 and 3288 of 2012 (O&M) 18

back.

For the sake of brevity, the relevant portion of the judgment of

five learned Judges of the Hon'ble Supreme Court in “Pankajakshi 's case

(supra) reads thus:-

“Since Section 41 of the Punjab Act is expressly in conflict

with the amending law, viz., Section 100 as amended, it would
be deemed to have been repealed. Thus we have no hesitation
to hold that the law declared by the Full Bench of the High
Court in the case of Ganpat [AIR 1978 P&H 137 : 80 Punj
LR 1 (FB)] cannot be sustained and is thus overruled." [at
paras 27 - 29]”
27. Even the reference to Article 254 of the
Constitution was not correctly made by this Court in the said
decision. Section 41 of the Punjab Courts Act is of 1918
vintage. Obviously, therefore, it is not a law made by the
Legislature of a State after the Constitution of India has come
into force. It is a law made by a Provincial Legislature under
Section 80A of the Government of India Act, 1915, which law
was continued, being a law in force in British India,
immediately before the commencement of the Government of
India Act, 1935, by Section 292 thereof. In turn, after the
Constitution of India came into force and, by Article 395,
repealed the Government of India Act, 1935, the Punjab
Courts Act was continued being a law in force in the territory
of India immediately before the commencement of the
Constitution of India by virtue of Article 372(1) of the
Constitution of India. This being the case, Article 254 of the
Constitution of India would have no application to such a law
for the simple reason that it is not a law made by the
Legislature of a State but is an existing law continued by virtue
of Article 372 of the Constitution of India. If at all, it is Article
372(1) alone that would apply to such law which is to continue

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RSA Nos.1490, 284 and 3288 of 2012 (O&M) 19

in force until altered or repealed or amended by a competent

Legislature or other competent authority. We have already
found that since Section 97(1) of the Code of Civil Procedure
(Amendment) Act, 1976 has no application to Section 41 of the
Punjab Courts Act, it would necessarily continue as a law in
force.”
Therefore, I do not intend to frame the substantial questions of

law while deciding the appeals, aforementioned.

Keeping in view the aforementioned facts, I am of the view that

both the Courts below have committed illegality and abdication as the Will

suffered from legal flaw, therefore, the same is discarded. The judgments

and decrees of the Courts below are hereby set aside and the suit is

dismissed.

Resultantly, the appeal bearing RSA No.284 of 2012 is allowed

and the other three appeals bearing RSA No.5041 of 2011, RSA No.1490 of

2012 and RSA No.3288 of 2012 are dismissed.

( AMIT RAWAL)
01.03.2018 JUDGE
Yogesh Sharma


Whether speaking/reasoned Yes/ No

Whether Reportable Yes/ No

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