Bhopal Singh And Anr vs Jagmal Singh And Others

CM-5936-C-2023 along with CM-5937-C-2023
in/and RSA-1663 -2023 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
129 CM-5936-C-2023 along with
CM-5937-C-2023 in/and
RSA-1663-2023 (O&M)
Date of decision: 11.09.2026
Bhopal Singh and another
....Appellants
Vs.
Jagmal Singh and others
....Respondents
CORAM : HON’BLE MR. JUSTICE HARSH BUNGER
Present: Mr. Ashok Kumar Khabbar, Advocate with
Ms. Ruhani Duhan, Advocate
for the applicants/appellants.
*
HARSH BUNGER J.
CM-5936-C-2026:
Present application is filed seeking condonation of delay of 56
days, in filing the main case i.e. RSA-1663-2023.
For the reasons mentioned in the application, delay of 56 days,
in filing the main case i.e. RSA-1663-2023 is condoned.
Application is accordingly disposed of.
RSA-1663-2023 (O&M):
1. For convenience, the parties herein are being addressed as per
their status in the original suit.
2. Present regular second appeal has been filed by defendants
No.1 and 2, challenging the judgment and decree dated 14.09.2016 passed
by the learned Civil Judge (Junior Division), Bilaspur as well as the
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CM-5936-C-2023 along with CM-5937-C-2023
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judgment and decree dated 12.10.2022 passed by the learned Additional
District Judge, Yamuna Nagar (at Jagadhri).
3. Briefly, the plaintiff (Jagmal Singh) filed a suit for declaration
to the effect that the alleged Will dated 18.03.2008 executed by Shri Mulki
Ram son of Sh. Chhittar Ram, in favour of the defendants regarding the suit
property as well as the consequent mutations are illegal, null and void, and
not binding on the rights of the plaintiff. A consequential relief of permanent
injunction was also sought.
3.1 Plaintiff Jagmal Singh filed the suit for declaration on the plea
that the plaintiff and defendants No. 1 and 2 are real brothers, whereas
defendants No. 3 and 4 are the nephews of the plaintiff. It was averred that
the plaintiff as well as the defendants are the descendants of Mulki Ram @
Milkhi Ram, and that the suit property was ancestral property of the parties,
as the same was previously owned and possessed by their predecessors.
3.2 It was further averred that the plaintiff as well as the defendants
have been cultivating the suit property jointly to the extent of their
respective shares. However, few days prior to the filing of the suit, the
defendants came at the spot and tried to interfere in the actual physical
possession of the plaintiff by claiming that they are the exclusive owners of
the suit property, and that the plaintiff has no right, title, or concern with the
same. On the asking of the plaintiff, the defendants disclosed that late Mulki
Ram @ Milkhi Ram had executed a Will in their favor in respect of the suit
property at Village Bilaspur and Aharwala, and even the mutations have
been sanctioned on the basis of the said Will. Thereupon, the plaintiff is
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CM-5936-C-2023 along with CM-5937-C-2023
in/and RSA-1663 -2023 (O&M) -3-
stated to have approached the Halka Patwari and obtained the revenue
record.
3.3 Accordingly, the suit has been filed by the plaintiff by claiming
that the alleged Will dated 18.03.2008 executed by late Mulki Ram @
Milkhi Ram in favor of the defendants, and the consequential mutations on
the basis of the Will, are illegal, null, and void, and not binding on the
plaintiff, and also that the suit property is ancestral in nature, wherein the
plaintiff has a right similar to that of defendants No. 1 and 2.
3.4 It was pleaded that Mulki Ram was an old-aged person who
remained ill, and therefore, he was not in a sound disposing state of mind.
The plaintiff alleged that the Will is a forged document which has been got
executed by playing fraud. It is further averred that the Will is dated
18.03.2008, and that Shri Mulki Ram expired on 25.08.2008.
4. Upon issuance of notice in the suit, defendants No. 1 and 2
appeared and submitted their written statement, inter alia, stating that the
suit property was a self-acquired property of late Mulki Ram and he had
every right to dispose of the same as per his free will. The defendants
averred that the plaintiff has no right, title, or concern with the suit property,
and that the suit was time-barred because the Will is dated 18.03.2008,
whereupon the mutations were sanctioned, which were very well within the
knowledge of the plaintiff. It was further claimed that the plaintiff was
married to Smt. Setho Devi of Village Sangethra, District Saharanpur, in the
year 1970, and since then, he has been residing at Village Sangethra as a
ghar jamai . Defendants further claimed that the plaintiff does not constitute
a Joint Hindu Family with the defendants. They claimed that the Will dated
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CM-5936-C-2023 along with CM-5937-C-2023
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18.03.2008 is a legal and valid document and binding on the plaintiff.
Defendants further maintained that at the time of execution and registration
of the Will dated 18.03.2008, late Sh. Mulki Ram was quite healthy,
conscious, and in a good state of mind. The other averments of the plaint
were denied, and prayer for dismissal of the suit was made.
4.1 On the other hand, defendants No. 3 and 4 also submitted their
written statement stating that late Sh. Mulki Ram had executed a Will in
favour of the defendants, and even the mutation has been sanctioned on that
basis. They pleaded that no fraud has been played upon the plaintiff.
However, they admitted that the suit property was ancestral and that the
plaintiff was the son of Mulki Ram. They further admitted that Mulki Ram
executed the Will on 18.03.2008 and he expired on 25.08.2008. The rest of
the contents of the plaint were denied, and prayer for dismissal of the suit
was made.
5. From the pleading of the parties, following issues were framed
by the learned Trial Court:-
“1. Whether the Will dated 18.3.2008 executed by Mulki Ram in
favour of the defendants and the mutation No.7435 and 226
sanctioned on the basis thereof are illegal, null and void
and not binding on the rights of the plaintiff? OPP.
2. Whether the plaintiff is entitled to a decree of permanent
injunction against the defendants as prayed for? OPP.
3. Whether the suit is not maintainable in the present form?
OPD
4. Whether the suit is time barred? OPD.
5. Whether the plaintiff has no locus standi and cause of
action to file the present suit? OPD.
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CM-5936-C-2023 along with CM-5937-C-2023
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6. Whether the plaintiff is estopped from filing the present suit
by his own act and conduct? OPD.
7. Whether the suit is bad for non-joinder and mis-joinder of
necessary parties? OPD.
8. Whether the plaintiff has not approached the court with
clean hands and concealed the material facts from the
court? If so, to what effect? OPD.
9. Relief.”
6. Thereafter, the parties led their respective evidence on the
aforesaid issues.
7. The learned Trial Court, after considering the facts, pleadings,
as well as the evidence available on record, decreed the suit of the plaintiff
vide judgment and decree dated 14.09.2016.
8. Feeling aggrieved, defendants No. 1 and 2 preferred an appeal
before the learned Additional District Judge, Yamuna Nagar (at Jagadhri),
which has also been dismissed vide judgment and decree dated 12.10.2022.
9. In the aforementioned circumstances, present regular second
appeal has been filed before this Court.
10. I have heard the learned counsel for the appellants and perused
the paperbook with his able assistance.
11. In the present case, the plaintiff is claiming his share in the suit
property on the basis that the suit property is ancestral in nature, which was
earlier owned and possessed by their father Mulki Ram @ Milkhi Ram. The
plaintiff further claimed that Sh. Mulki Ram did not execute the alleged Will
dated 18.03.2008, which was in fact a result of fraud, and therefore, not
binding on his rights.
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CM-5936-C-2023 along with CM-5937-C-2023
in/and RSA-1663 -2023 (O&M) -6-
12. On the other hand, the present appellants/defendants No. 1 and
2, claim that the suit property was the self-acquired property of Sh. Mulki
Ram, and that the Will dated 18.03.2008 was a registered and genuine Will.
13. The learned Trial court, while deciding issue No. 1, held that
the Will (Ex. P-1) is a forged and fabricated document which is surrounded
by suspicious circumstances. Even the learned First Appellate Court has
affirmed the findings returned by the learned Trial Court by observing as
under:
“19. A perusal of Will Ex.P1 reveals that it was executed on
18.03.2008 and was got registered on the same day. The Will is
thumb marked by executant Mulki Ram @ Milkhi Ram and has
been attested by witnesses Shamsher Singh and Gurdev Singh.
In order to prove the due execution of Will, defendants
examined DW1 Jai Dev Reader to Sub Registrar, Bilaspur, who
had brought the summoned record i.e. register pertaining to
Will dated 18.03.2008. He testified that as per register, Mulki
Ram son of Chhittar Ram got registered his Will on 18.03.2008,
which was entered in the register at serial No.77. Defendants
further examined DW2 Sunita Kakran, Advocate, who testified
that she is a deed writer at Tehsil Complex, Bilaspur and the
Will Ex.P1 was prepared by her on 18.03.2008 and entered the
same in her register at serial No.422. However, she further
stated that her concerned register has been misplaced,
regarding which she got registered a DDR on 24.05.2011 in
Police Station, City Yamuna Nagar and photocopy of DDR is
Mark-A. She stated in her cross examination that Will was not
typed by her, rather same was got typed by her from a typist.
Defendants further examined DW3 Gurdev Singh, attesting
witness of Will, who testified that Mulki Ram executed the Will
dated 18.03.2008 in his presence in favour of his two sons
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CM-5936-C-2023 along with CM-5937-C-2023
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namely Bhopal and Ramesh and grand sons namely Rajinder
and Ran Singh sons of Pawan Kumar. In view of above evidence
of defendants, they had tried to prove the execution of Will
technically, but it is not in dispute that plaintiff, who is the
natural heir of executant Mulki Ram @ Milkhi Ram has been
excluded by the executant while executing the Will. No reason
has been given by the executant as to why he was depriving
plaintiff from inheritance and executing the Will in favour of his
other sons defendants No.1 & 2 and grand sons defendants
No.3 and 4. There is nothing on the file to show that the
executant was not having cordial relation with plaintiff and,
therefore, he had no reason to deprive the plaintiff, who is also
his real son, from inheritance. Therefore, execution of Will in
question is surrounded by suspicious circumstances and mere
registration thereof is not sufficient to presume the genuineness
of the Will.
20. It may be mentioned further that the Will in question was
thumb marked by the testator whereas as per the evidence led
by plaintif, testator Mulki Ram used to put his signatures in
English. It has come on the file that Mulki Ram @ Milkhi Ram
was employed in Sugarcane Society, Chhachhrauli and certified
copies of his salary slips Ex.DW6/A to Ex.DW6/K, proved by
DW6 Mam Chand, Secretary, Sugarcane Society, Chhachhrauli
show that Mulki Ram used to sign on the salary slips in English
language. It is not explained on behalf of defendants that under
what circumstances deceased Mulki Ram put his thumb
impression on the Will in place of his signatures, whereas he
used to sign in English while receiving his salary during
employment with Sugarcane Society, Chhachhrauli. It is settled
law that the propounder of testamentary disposition is not only
required to prove Will, but also furnish explanation in respect of
all surrounding suspicious circumstances in the execution of
Will. It has been submitted on behalf of defendants that their
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CM-5936-C-2023 along with CM-5937-C-2023
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father had partitioned the property during his life time in the
presence of plaintiff and that the plaintiff by his own free Will
relinquished his rights in the suit property in favour of
defendants as he (plaintiff) had already received a big chunk of
land in Uttar Pradesh from his in-laws where he has been
residing as Ghar Jamai and that he never constituted any joint
Hindu family with the defendants or their father Mulki Ram @
Milkhi Ram. However, It may be mentioned here that such a fact
is neither incorporated in the Will in question nor there is any
evidence that plaintiff had ever relinquished his rights over the
suit property in favour of defendants. Even there is nothing on
the file to presume any such settlement arrived at between the
plaintiff, defendants and deceased Mulki Ram, rather DW4
Bhopal Singh (defendant No.1) has stated during his cross
examination that he can not tell the date, month or year when
the family settlement took place. In these circumstances, the
Will in question is surrounded by suspicious circumstances and
can not be described as a genuine document.”
14. A perusal of the above-extracted observations made by the
learned First Appellate Court would show that Sh. Mulki Ram, while
executing the alleged Will, had excluded the plaintiff, who is concededly his
natural heir. No reason has been given by the executant of the Will as to why
he was depriving the plaintiff from inheritance and executing the Will only
in favour of the present appellants (defendants No. 1 and 2) and his
grandsons (defendants No. 3 and 4). The defendants have failed to show that
the executant was not having cordial relations with the plaintiff, who was his
real son.
14.1 Another suspicious circumstance noticed by the learned Courts
below is that the Will in question is thumb-marked by the testator, whereas
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CM-5936-C-2023 along with CM-5937-C-2023
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as per the evidence available on record, Sh. Mulki Ram used to put his
signatures in English. It has come on record that Sh. Mulki Ram was
employed in Sugarcane Society, Chhachhrauli, and even his salary slips
(Ex. DW-6/A to Ex. DW-6/K) had been proved by Sh. Mam Chand (DW-6),
Secretary, Sugarcane Society, Chhachhrauli, who proved that Mulki Ram
used to sign on the salary slips in the English language. Learned Courts
below have observed that the defendants have failed to explain under what
circumstances deceased Mulki Ram had put his thumb impression on the
Will in place of his signatures.
14.2 Another fact noticed by the learned First Appellate Court is that
the defendants had taken a plea that their father Mulki Ram had partitioned
the property during his lifetime in the presence of the plaintiff, and that the
plaintiff by his own free will had relinquished his rights in the suit property
in favor of the defendants, as the plaintiff had already received a big chunk
of land in Uttar Pradesh from his in-laws, where he had been residing as a
ghar jamai . It has been observed by the learned First Appellate Court that
the said plea of the defendants is neither incorporated in the Will in question,
nor any evidence in that regard has been brought on record to show that the
plaintiff ever relinquished his rights in the suit property in favor of the
defendants.
15. Before this Court, learned counsel appearing for the appellants
has failed to show as to how the findings/observations made by the learned
court below are either illegal or perverse or based upon any misreading or
misappreciation of material evidence. No question of law, much less
substantial question of law, arises for consideration.
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CM-5936-C-2023 along with CM-5937-C-2023
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16. It is well-settled that in Regular Second Appeal, this Court has
limited jurisdiction to interfere in the concurrent findings of facts returned
by both the learned Courts below. Hon'ble Supreme Court in case of
M/s Shivali Enterprises v. Godawari (Deceased), 2022(4) RCR (Civil) 325;
has held as under:-
"“13. Section 41 of the Punjab Act reads thus:
"41. Second appeals - (1) An appeal shall lie to the High
Court from every decree passed in appeal by any Court
subordinate to the High Court on any of the following
grounds, namely:
(a) the decision being contrary to law or to some custom
or usage having the force of law:
(b) the decision having failed to determine some material
issue of law or custom or usage having the force of law:
(c) a substantial error or defect in the procedure
provided by the Code of Civil Procedure 1908 [V of
1908], or by any other law for the time being in force
which may possibly have produced error or defect in the
decision of the case upon the merits;
[Explanation - A question relating to the existence or
validity of a custom or usage shall be deemed to be a
question of law within the meaning of his section:]
(2) An appeal may lie under this section from an
appellate decree passed ex parte"
14. This Court, in the case of (2019) 17 SCC 71- Randhir
Kaur v. Prithvi Pal Singh and Others , after considering the
scope of interference under the old section 100 of the Civil
Procedure Code, 1908 (for short "CPC") and Section 41 of the
Punjab Act, has observed thus:
"15. A perusal of the aforesaid judgments would show
that the jurisdiction in second appeal is not to interfere
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CM-5936-C-2023 along with CM-5937-C-2023
in/and RSA-1663 -2023 (O&M) -11-
with the findings of fact on the ground that findings are
erroneous, however, gross or inexcusable the error may
seem to be. The findings of fact will also include the
findings on the basis of documentary evidence. The
jurisdiction to interfere in the second appeal is only
where there is an error in law or procedure and not
merely an error on a question of fact."
15. It could thus be seen that this Court has held that, even
when a court exercises jurisdiction under Section 41 of the
Punjab Act, it cannot interfere with the findings of fact in
second appeal on the ground that the said findings are
erroneous, howsoever gross or inexcusable the error may seem
to be. It has been held that the findings of fact would also
include the findings on the basis of documentary evidence. The
jurisdiction under Section 41 of the Punjab Act would be
available only when there is a substantial error or defect in the
procedure provided by the CPC or by any other law for the time
being in force."
(Emphasis added)"
17. In view of the discussion above, no ground is made out to
interfere in the impugned judgments and decrees passed by the learned Trial
Court and the learned First Appellate Court and the present Regular Second
Appeal is hereby dismissed . No order as to costs.
18. All the pending application(s), if any, shall also stand closed.
(HARSH BUNGER)
11.09.2026 JUDGE
Ankit
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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