Smt. Surjit Kaur Noor vs Jasbir Singh and Others

L.N. Mittal, J.—Defendant No. 1-Surjit Kaur Noor has filed this second appeal. Suit was filed by Surjit Singh and his four sons (respondents No. 3 to 7 herein) against appellant as defendant No. 1, Jasbir Singh -respondent No. 1 as defendant No. 2, Pritpal Singh respondent No. 8 as defendant No. 3, Tejpal Singh defendant No. 4 (since deceased and represented by respondents No. 9 to 11) and respondent No. 2 Mrs. Kamal Raj Manak as defendant No. 5.

Plaintiffs set up their claim on the basis of Will dated 07.11.1991 allegedly executed in their favour by Gurbax Singh. On the other hand, defendant No. 1-appellant set up her claim on the basis of Will dated 04.07.1990 allegedly executed in her favour by Gurbax Singh. Defendants No. 2 to 5 set up their claim as natural heirs of Gurbax Singh.

Learned Civil Judge (Senior Division), Jalandhar vide judgment and decree dated 08.06.2007 dismissed the plaintiffs'' suit discarding the alleged Will dated 07.11.1991 set up by them, but at the same time, upheld Will dated 04.07.1990 set up by defendant No. 1, although no counter claim was made by defendant No. 1 in the suit. Against judgment and decree of the trial Court, there were two first appeals - one filed by the plaintiffs and the other filed by defendants No. 2 and 5. Learned Additional District Judge, Jalandhar vide common judgment dated 09.12.2011 dismissed the appeal preferred by plaintiffs and partly allowed the appeal preferred by defendants No. 2 and 5 to the extent that registered Will in favour of defendant No. 1 Surjit Kaur (upheld by the trial Court) was set aside as the suit property is trust property. Aggrieved by this finding of the lower appellate Court, defendant No. 1 has filed the instant second appeal.

I have heard Learned Counsel for the parties and perused the case file.

Defendant No. 1-appellant herself pleaded that the suit land is trust property. This plea of defendant No. 1 has been upheld by the lower appellate Court and suit filed by the plaintiffs has been dismissed by both the courts below. Will set up by plaintiffs has been discarded by both the Courts below. As regards Will set up by defendant No. 1-appellant, the same is not relevant for adjudication of the instant lis because even according to defendant No. 1-appellant, the suit land being trust property is not affected by the Will set up by the appellant. Lower appellate Court has set aside the Will only on the ground that the suit land is trust property. Obviously the said Will is not operative as regards the suit land.

In view of the aforesaid, it is clarified that setting aside of Will dated 04.07.1990 by the lower appellate Court shall pertain to suit land only and shall not affect any other property and legality and validity of the said Will relating to other property may be independently adjudicated upon in appropriate proceedings whenever occasion arises for the same. Nothing in judgments of the courts below in the instant lis shall have any bearing either way on the legality or validity of the said Will. Subject to aforesaid clarification, the instant second appeal is dismissed.