Basant Kaur and Another vs Tara Singh and Another

H.S. Bedi, J.—The facts of the case are that one Bakhtawar Singh who was the owner of the disputed property, died on June 5, 1973 leaving behind no issue. Plaintiff Tara Singh claimed to be his nearest heir and on that basis, sought to succeed to his property. The defendant-appellant Basant Kaur, however controverted the claim of the Plaintiff-respondent and set up a will dated February 21, 1973. Exhibit D-l allegedly executed by Bakhtawar Singh in her favour and this fact was also got reflected in the mutation sanctioned by the Revenue Authority. On the presentation of the Plaint, notice was given to the other side and plea was taken by they defendants that Bhahtawar Singh aforesaid had executed a will in their favour and that Tara Singh was not entitled to any share in the property. On the pleadings of the parties, the following issues were framed: -

Whether Bakhtawar Singh deceased executed a valid will dated 21.2.1973 in favour of defendant No. 1 Basant Kaur? O.P.D.

Whether the suit is not maintainable in the present form? O.P.D.

Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? O.P.D.

Whether the Plaintiff is the only legal heir of the deceased Bakhtawar Singh under Hindu Succession Act, 1956? O.P.D.

Relief.

Issue No. 1 was decided against the defendant-appellant and it was held that the alleged will executed by Bakhawar Singh was not a valid one and under Issue No. 5, it was held that Plaintiff Tara Singh was the nearest heir of Bakhtawar Singh and thus liable to succeed to his property. The trial Court gave a positive finding that the will propounded by the defendants was a forged document and had not been proved by even the defendants'' own witnesses. Reliance was placed by the trial Court for this conclusion on the statements of Sohan Lal and Bir Singh, the attesting witnesses, who had stated that Bakhtwar Singh was not in his senses at the time of the execution of the will and the defendant''s own statement that she was not aware as to whether the will Exhibit Dl was a fictitious or a genuine document. The suit was accordingly decreed.

The appeal taken before the lower Appellate Court too was rejected and the only and new plea raised was that Basant Kaur who was an agnate of Bakhatawar Singh was entitled to succeed alongwith Tara Singh to the property of Bakhtawar Singh. This argument too was repelled by observing that Basant Kaur did not fall within that category.

The present appeal was admitted in this Court way back in 1979 and alongwith the appeal, an application under Order 6, Rule 17, read with Section 151, Code of Civil Procedure, numbered as CM. No.l906-C of 1979 for the amendment of the written statement to take yet another plea, was also moved. This application is also being disposed of alongwith the appeal.

I have heard the learned counsel for the parties and find that there is no merit in the appeal. The defendant-appellants have been taking a vacillating stand right from the very beginning inasmuch as first a will which was found to be a fictitious document by the trial Court was set-up, and in the first appeal a new plea was raised that Basant Kaur was entitled to succeed to the property as an agnate of the deceased. This too was repelled. C. M. No. 1960-C of 1979 has now been moved to set up yet another plea in the written statement, with regard to a family settlement between the contesting parties. The application at this belated stage, is therefore, misconceived and is dismissed.

Moreover, the findings of fact recorded by the Courts below are not liable lightly to be interfered with in Second Appeal.

For the reasons recorded above, there is no merit in this appeal and the same is dismissed. No order as to costs.