(O&M) Balbir Kaur vs Tej Kaur Etc.

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RSA-3486-1999 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
212 RSA-3486-1999 (O&M)
DATE OF DECISION: 09.09.2026
BALBIR KAUR ....APPELLANT
VERSUS
TEJ KAUR AND OTHERS ...RESPONDENTS
CORAM: HON’BLE MR. JUSTICE YASHVIR SINGH RATHOR
*
Present : Ms. Arihant Jain, Advocate and
Mr. Kanish Jindal, Advocate
for the appellant.
Mr. Aman Sorout, Advocate and
Mr. Diwan S. Adlakha, Advocate
for respondent No.1.
Mr. Manish Kumar Singla, Advocate
for LRs of respondent No.3.
Respondent No.11 ex parte vide order dated 10.01.2012.
Respondents No.4, 8 & 12 ex parte vide order dated 28.10.2013.
*
YASHVIR SINGH RATHOR , J. (ORAL)
1. This Regular Second Appeal has been preferred by the
appellant ( hereinafter referred to as “defendant No.1” ) against the
judgment and decree dated 16.07.1999 passed by the learned First
Appellate Court, Sangrur affirming the judgment and decree dated
15.02.1996 passed by the learned Trial Court in Civil Suit No.819 of
13.08.1993 instituted by respondent No.1 Tej Kaur ( hereinafter referred
to as “plaintiff” ) whereby the suit filed by the plaintiff had been decreed.
2. Case of the plaintiff is that Har Kaur wife of late Gurbax
Singh was her mother as well as that of defendants No.2 to 4. She was the
owner of the suit property as well one tractor bearing No.PBD-8854
VISHAL VARDHAN
2026.09.11 18:57
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integrity of this document

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RSA-250-2026 (O&M)
detailed in the headnote of the plaint which devolved upon the plaintiff,
defendants No.2 to 4 and one pre-deceased daughter, namely, Bhagwan
Kaur who is survived by defendants No.6 to 8 while Ajaib Singh pre-
deceased son of Bhagwan Kaur is now survived by defendants No.9 to 12.
In this manner, plaintiff became owner to the extent of 1/5 share out of the
suit land owned by Har Kaur and 1/5 share in the disputed tractor.
Plaintiff is owner to the extent of 1/30 share out of the suit land and to the
extent of 1/5 share in the tractor and defendants No.2 to 4 are also owners
to the extent of 1/30 share each in the suit land and 1/5 share each in the
tractor. Defendants No.5 to 8 are owners of the suit land to the extent of
1/150 share each and to the extent of 1/25 share each in the tractor in
dispute. Defendants No.9 to 12 are owners to the extent of 1/150 share in
the suit land and 1/25 share in the tractor. She further alleged that
defendant No.1 has no right, title or interest in the suit land but in
connivance with revenue officials, she has got mutation of inheritance of
Har Kaur sanctioned in her favour vide Mutation No.6579/A dated
27.04.1993 and on the basis of wrong mutation, defendants No.1 and 2
have taken forcible possession of the share of Har Kaur and now they are
threatening to alienate the same as also the tractor in dispute. By way of
present suit, plaintiff sought declaration to the effect that she is owner in
joint possession of the suit property to the extent of 1/30 share and has
sought cancellation of Mutation No.6579/A sanctioned in favour of
defendant No.1 and has also sought joint possession to the extent of 1/5
share in the tractor in dispute. A decree for permanent injunction has also
VISHAL VARDHAN
2026.09.11 18:57
I attest to the accuracy and
integrity of this document

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RSA-250-2026 (O&M)
been sought restraining defendant No.1 from alienating the share of the
plaintiff in the suit land and in the tractor.
3. Defendant No.1 in her written statement has challenged the
suit preliminarily on the grounds of maintainability, locus standi and
estoppel. It is further submitted that deceased Har Kaur was neither owner
nor in possession of the tractor at the time of her death. It is further
submitted that Har Kaur was being served and looked after by her during
her lifetime and in lieu of services rendered by her, deceased Har Kaur
had executed registered Will dated 08.07.1977 bequeathed the suit
property in her favour, on the basis of which mutation has rightly been
sanctioned by the Revenue Authorities. Now, plaintiff and defendants
No.3 to 12 have no share in the suit land or in the tractor. Dismissal of the
suit was prayed for.
4. Defendant No.2 was proceeded ex parte.
5 Defendants No.3 to 12 in their joint written statement
admitted the claim of the plaintiff in toto and have described the
possession of defendant No.1 over the suit land as illegal and they
claimed to be in joint possession of the suit land as well as tractor in
dispute. A counter claim has also been filed to the effect that they are
owners in joint possession of the suit property and tractor to the extent of
their respective shares.
6. Replication to the written statement of defendant No.1 was
filed by the plaintiff, wherein she controverted the contents of the written
statement and reasserted the pleas taken in the plaint.
VISHAL VARDHAN
2026.09.11 18:57
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integrity of this document

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RSA-250-2026 (O&M)
7. From the pleadings of the parties, following issues were
framed:-
1. Whether the mutation in favour of the defendant No.1
is illegal, null and void? OPP
2. Whether the plaintiff is entitled for injunction as
prayed for?OPP
3. Whether the plaintiff is entitled for joint possession
of the tractor and suit land? OPD
4. Whether the suit is not maintainable in the present
form? OPD
5. Whether the plaintiff has no locus standi to file the
present suit? OPD
6. Whether the plaintiff is estopped by his act and con-
duct from filing the suit? OPD
7. Relief.
8. In support of her case, plaintiff has examined herself as PW2
Kulwant, Clerk of office of SDM, Sunam as PW1 and also tendered in
evidence Jamabandi Ex.P2 and Mutation Ex.P3 and in rebuttal evidence,
PW3 Varinder Bhushan Bhatnagar was also got examined. On the other
hand, defendant No.1 examined DW1 Jaswinder Singh Kanugo, DW2
Bhagirath Lal, and she herself appeared as DW3 and thereafter, evidence
was closed.
9. After hearing the parties and on going through the material
on file, learned Trial Court held that defendant No.1 had propounded a
Will in her favour but has failed to prove its execution by deceased in her
favour as she has failed to examine any of the attesting witnesses of the
Will and the same was discarded and consequently, suit filed by the
VISHAL VARDHAN
2026.09.11 18:57
I attest to the accuracy and
integrity of this document

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RSA-250-2026 (O&M)
plaintiff and the counter claim filed by defendants No.3 to 12 were
decreed and they were held to be owners in joint possession of the suit
property to the extent of their shares and mutation Ex.P3 sanctioned in
favour of defendant No.1 was set aside. In the appeal preferred by the
defendant No.1, the learned First Appellate Court affirmed the findings of
the Trial Court and dismissed the appeal with costs vide judgment and
decree dated 16.07.1999.
10. Feeling aggrieved, the present regular second appeal has
been instituted on behalf of the appellant/defendant No.1. I have heard
learned counsel for the appellant as well as respondents and have gone
through the material on the file.
11. It is not in dispute that plaintiff, defendant No.2 and
defendants No.3 to 12 are the natural heirs of deceased Har Kaur and they
will inherit the estate left behind by her after her death. However,
defendant No.1 who is the second wife of defendant No.2 with whom she
performed marriage even during the lifetime of his first wife claims to
have become owner of the suit property left behind by deceased Har kaur
on the basis of Will allegedly executed by deceased Har Kaur in her
favour vide which she allegedly bequeathed the suit property in her
favour.
12. As per Section 63(c) of the Indian Succession Act, 1925, a
Will in India must be attested by at least two witnesses. Each witness
must see the testator, sign or affix his mark, or receive a personal
acknowledgment of signature from the testator and thereafter, each
VISHAL VARDHAN
2026.09.11 18:57
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integrity of this document

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RSA-250-2026 (O&M)
witness must sign the Will in the presence of the testator, though both
witnesses may not be present at the same time. However, in case, the Will
becomes disputed and is challenged in the Court, its execution is required
to be proved by beneficiary of the Will as per Section 68 of the Indian
Evidence Act, 1872 which provides that at least one attesting witness
must be called to prove the execution of a Will. As such, as per Section 68
of the Indian Evidence Act, a document required by law to be attested
cannot be used as evidence unless at least one attesting witness is called to
prove its execution, provided the witness is alive and is capable of leading
evidence and subject to process of the Court and in case, the beneficiary
of the Will fails to examine any attesting witness despite his availability,
the Will cannot be admitted or looked into. Proving a Will strictly requires
examination of at least one attesting witness even if there is no dispute
between legal heirs. However, defendant No.1 has failed to examine one
attesting witness of the Will and consequently, defendant No.1 has failed
to prove due execution of the Will in her favour by the testator. In these
circumstances, learned Trial Court as well as First Appellate Court have
not committed any illegality or infirmity while discarding the Will as the
same could not have been looked into. Resultantly, there is no infirmity or
illegality in the findings arrived at by both the Courts below while
decreeing the suit and holding the plaintiff and defendants No.3 to 12 to
be owners in joint possession as per their respective shares.
13. As a result of aforesaid discussion, I am of the considered
opinion that the judgments and decrees passed by the Trial Court and the
VISHAL VARDHAN
2026.09.11 18:57
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integrity of this document

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RSA-250-2026 (O&M)
First Appellate Court are well reasoned and justified. The facts of the case
and evidence on file have been appreciated in the correct perspective and
the same do not suffer from any error of law so as to call for any
interference in the concurrent finding arrived at by both the Courts.
Resultantly, the appeal in hand is dismissed with costs.
14. Pending misc application (s), if any, shall also stand disposed
of.
09.09.2026 (YASHVIR SINGH RATHOR)
Vishal Vardhan JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
VISHAL VARDHAN
2026.09.11 18:57
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integrity of this document