RSA No6 v. Sm t 3asant Kaur S ot hers

defendant Nol l appellantgot m ut at ion sanct ioned in his favour bearingNoA280 on t he basis of forgedand fict it iousWiil allegedt o have been execut ed byDewa Singhin his favour The case of t he plaint iffwas t hat Dewa Singhwas not com pet entt o execut e t his Will as on t he dat e of execut ion of t he Will right sin t he I and had been conferred upon him t herefore t he Will had no affect on t he right sof t he plaint iffand Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh defendant s No 2 8 3 speciallywhen he did not have any subsist ing JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 80 1 A RSA No6 of 1991 t it lein t he suit I and at t he t im e of his deat h The suitwas cont est ed bydefendant Nol only whereas No 283 adm it t edt he claim of t he plaint iff Nol in t he writ t en st at em entadm it t ed t hat t he I and in disput ewas earlier held byDewa Singhand Ganda Singhas MuzaraGair Mourusi and t hat right swere conferred on t hemin pursuancet o t he order passedbyt his Cout t I t was also not t hat aft er t he deat h of Ganda Singh his rightVeSt ed in Dewa SinghHe cont est eo t he claim of t he plaint iHby pleadingt hat Dewa Singhhad execut ed a Will in his favour all his propet t yin favour of defendant No 0 0 C I C5 I Z r I C45 I t was t hat Dewa Singhhad subsist ingt it le in t he 17 Z 0 allot t edI and at t he t im e of allot m ent I t was also pleadedt hat plaint iffwas notin possessionof t he I and t herefore t he quest ionof t he plaint iffdid not arise I n t he t he averm ent sm ade bydefendant No werecont rovert edand t hose m ade in t he plaintwere reit erat ed On t he pleadingsof t he part iest he I earned t rial Court fram ed t he followingissues 1 Whet her Dewa Singh alongwit h his brot her Ganda Singhoccupiedt he suit I and as Muzara Gair Maurusi and t he sam e were conferred allot t ed t o t hem and t hey right sby t he Honb1eHighCourt 20PP Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 81 7 6 RSA No6 of 1991 e 4m m C 0 0 I C5 I 4 2 0 08 AW2 I l 2 Whet her plaint iffand defendant s are t he owners accordingt o t he decisionof Honb1e Cout t of Punj ab8 Haryana dat ed 192 80 and ot her decisI ons dat ed 26l l l as m ent ioned in 171 para No l of t he 3 4 5 6 7 8 9 t o file t his suit 2 Whet her t he no I ocus st andi Whet her Dewa Singhhad execut ed a in favour of defendant Will No 2OPD I f issue No 4 is provedwhet her Dewa SinghlN8S not com pet entt o execut e t he said Will and t he m ut at ions have wronglybeen sanct ioned on t he basis of t he said Wi1170PP Whet her Mohinder Sigh defendant No I S t he I awful owner in possessionover t he suit No l Whet her rnaint ainable20PDNol t he I S Whet her t he plaint iffis est oppedt o bring t he presentsuit by her own acl and conduct 20PD No 1 Whet her t he plaint iffis ent it led t o t he relief of prayedfor 2OPP 10 Relief The I earned t rial Court t ook issues No 45 8 6 t oget her beingint erconnect ed and on appreciat ionof evidence decided all t hese issues in favour oofdefendant Nol l appellantand againstt he piaint iH Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 0 82 7 S RSA No6 of 1991 1 The reason for decidingt he I Ssues in favour of appellant was t hat t he pI aint iffin supportof t hese issues had exam ined PWl Karnail Singhslo Sh Khazan Singh PV2 Karnail Singhslo Sh Uj agarSinghbesides I nderSinghat t orneyof t he plaint iHlas PWe3 Byway of docum ent aryevidence t he plaint iffplacedon record copy of order passedby t hI s Court in CWP No 1071 of 1970 t it led as Am oI ak Singhand ot hers Vs Financial Com m ission lPlanningl Punj ab8 ot hers vide which t his Court had ordered t he grantof right sI ll favour of Dewa Singh and Ganda Singh inherit anceof est at e of Dewa Singh plaint iHalso placed on record t he copy of t he j udgm entand decree passedin Civil Suit No 138 of 61981 decided on 17111982 t it led as Soha n Singh and JoginderSinghVs Mohinder Singhvide which t he suit filed by defendant s No 2 8 3 againstdefendant No was decreed and m 0 C3 C5 I Z r I 08 e 3 Z Qm defendant No l was rest rainedfrom defendant sNo 2 8 3 from t he I and in disput eforciblyexceptin due process of I aw However she did not produceon record t he order passed by t he I earnedappellat eCouI t in appealfiled byMoninder Singhvide which t he case was rem anded back byfram ingan addit ional issue No and aft er t he rem and suit filed by Sohan Singhand Joginderwas dism issed by upholdingt he Will execut ed in favour of defendant No The j udgm entand decree finallypassedby t he I earned t rial Cni I rt Wa relierl t lnnn I ho 0n11n4 I rleeCI A Al 4 1 1 1 1 0 0 I C5 I Z 0 I 08 e V3 Z 0a RSA No6 of 1991 No on t he ot her hand had exam ined him self as DWel Gulwant Singhas and Banarsi Dass as DV He also placedon record t he Will Ex DW311 and t he revenue recorcl He also reliedupon t he copy of t he j udgm entof t his Court The t rial Court held t hat t he plaint ifft hough a nd of disposingm ind had chosen not t o appear in t he Courtand exam ined her at t orneywho was givenpower of at t orney t o be onlyt wo m ont hspriort o t he dat e on which her st at em ent was recorded The I earned t rial CouI t on of evidence and speciallYI n view of t he previousj udgm entbet ween defendant s No 2 S 3 and t he appellantheld t he Will t o be provedand decidedt hese issues in favour of defendant Nol l appellant As t here was no disput eonissue No t he I earned t rial Court recorded a findingt hat Dewa Singhalongwit h his brot her GandaSinghoccupiedt he suit I and as Muzara Gair Maurusi which WaS ailot t ed t o t hem aft er it was declared surplusin t he hands of Jit Singhand furt her t hat right swere conferred on Dewa Singhand Ganda Singhin pursuance t o t he order passedby t he Honble HighCoult I n view of t he findingholdingt hat t here was a valid Will in favour of defendant No issue No decided againstt he plaint iffI t was furt her held t hat as t here was no prayer m ade for JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document defendant Nol no case Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh was m ade out 83 1 d RSA No6 of 1991 9 4 1 0 0 Z CD I 1 08 4 7 Z t l I ssues No 37 88 were decided againstt he defendant s asnot pressedand in view of findingrecorded on issues No 4 5 8 6 t he suit was dism issed The 1 preferredan appealagainstt he and decree passedby t he I earnedt rial Court Keepingin View t he fact t hat t he disput ewas onlywit h regardt o t he Will The I earned I ower Cout t considered onlyt his quest ionas t he result oft he suit was t o dependon t he validit yof t he Will The I earned I ower Coun held t he Will t o be bysuspiciouscircum st ances for t he reasons hereinaner m ent ioned The I earned I ower Cout t held t hat t he j udgm ent Ex3 in a suit bet ween t he defendant s was not bindingon t he as she was not part yt o t he suit The I earnedI owerappellat e Court held t hat t he Will was not provedas defendant Nol failed t o exarnine CharanDass e t he scribe of t he Will and Kart ar Singht he ot her wit ness of t he Wiil I n view of t hese t wo wit nesses t he Court held t hat adverse inference was requiredt o be drawn against defendant Nol l appellantThe I earned I ower appellat eCout t consideredt he evidence of DWe2 I Banarsi Dass anot her at t est ing wit ness who was exam ined t o prove t he V The Court did not accepthis evidence for t he reason t hat he was resident of village Panchhat whereas Dewa Singhwas resident of villageBhaghana and t hat he had not got t he Will at t est ed by t he Lam bardar or Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 1 r 0 C I 9 Z C 4 I a5 4r 2 Z 84 7 d RSA No6 of 1991 1 Mem ber his villageThis was a suspicious The I earned I ower appellat eCout t furt her held t hat as BanarsiDass was not able t o t ell t he Pat i where t he house of Dewa Singhwas sit uat edand furt herm ore he did not know t he nam es t he sist ers and brot hersof Dewa SinghHe had aiso not aPPeared before t he sM at t he t im e of at t est at ionof m ut at ion which m eant t hathe did not know Dewa SinghTherefore it could not be beiieved t hathe could be called t o at t est t he Wiil The I earned I owerappellat e Court furt her held t hat t he t hum b of Dewa Singhat t he t im e of I earnedI ower appellat eCourt was of t he Will were superim posedThe findingof done t o avoid t his was t hat of t he signat ures The I earned I ower appeliat eCourt also held t hat Mohinder Singhin t he writ t en st at em ent had not m ent ioned about t he dat e of Will which it self creat ed doubt about it s The ot her suspiciouscircum st ance considered was t hat no reason was givenfor t he widow and ot her sons The I earned I ower appellat eCourt held t hat as t hese suspiciouscircum st ances were not explainedby t he propounderof t he Will t herefore findingon issue No could not be sust ained t he suit filed byt he plaint iffwas decreed Mr A K Chopra I earned senior counsel appeang behalf of t he appeliantchallengedt he j udgm entand decree passed by t he iearned I ower appellat eCourt by raisingt he foilowing Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh subst ant ialquest ionsof I aw JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 85 9 4 RSA No6 of 1991 r L 4 1 C 0 Ca3 I C5 I 4 Z 2 0 08 4 m m Z t l 1 2 Whet her t he j udgm entand passedby t he I earned I ower appellat e Court is out com e of m isreadingof decree and oral evidence record t hus perverse2 Whet her t he I eam ed I ower appellat e Courtcould reverse t he findingswit hout m eet ingwit h t he reasoninggivenby t he I earnedt rial Cout t 2 3 Whet her t he j udgm entand decree passedby t he I earned I ower appellat e Court is on t he face of it penierse in view of t he 3 passed int er and decree Ex bet ween t he defendant s2 I n supportof t he subst ant ialquest ionsof I aw referred t o above t he I earned senior counsei for t he appellantreferred t o t he j udgm entand decree Ex3 passedin a suit for filed by defendant s No 83 againstt he appellantwherein issue No1 wit h regardt o t he validit yof t he Will was fram ed and decided in favour of appellant He referred t o t he findingof t he I earned Sub JudgeI st Class Phagwaraon issue NoA in a Civil Suit No138 of61981 t it led as Sohan Singhand anot her Vs Mohinder Singh which reads asunder Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh 10 Charan Dass pet it ionwrit er t he scnbe of t he will dat ed 71 971 ExOl DWl Kart ar JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 86 4 9 W1 RSA No6 of 1991 01 0 1 0 C0 I C5 I Z C e I a5 17 Z 0 Singhone of t he of t he said will DW2 defendantDW3 and on l at t est ingwit nesses and Mohinder Singh t he ot her hand t here beingno evidencewhat soever on adduced by t he plaint iffs t o t he record t heir evidence wit h regardt o t he said will coupled wit ht he fact a singlesuspicI ous t hat not even wit h regardt o t he said will has out by t he I eam ed counsel for t he duringt he course of his argum ent sat t he bar it is found t hat Deva Singlj eceasedl execut eda valid will dat ed 71971 Mohinder Singhdefendant and on t he basis of t hesaid valid will in his favour he is exclusive in favour of owner of t he suitpropert yin t he eye of I aw This I SSue hereby found and is herebydet erm ined and I ssue NoAl I S decidedin favour of t he defendant and against t he The cont ent ion of t he I earnedsenior counsel by referring t o t hej udgm entwas t hat t he findingrecorded by t he I earned I ower Court holdingt hat t he Will was not provedis out com e of of evidence I t was also t he cont ent ion of t he I earned senior counsel for t he appellant t hat t he I earned t rial Court had accept edt he version t he defendant 1 appeilantin view of t he j udgm entand decree earlier passedint er se bet ween t he defendant s in which t he relief on behalf of t he plaint iffwas also claim ed but no reasons beengivenbyt he I earned appellat eCoun as t o how t he findingwas JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh 87 1 4 RSA No6 of 1991 bad in I aw I l Finailyit was cont ended by t he I earned senior counsel for t he t hat t he j udgm entand decree passedby t he I earnedI owerappellat eCourt on t he face of it is perverse in view of t he and decree Ex Dm 3 as defendant s No2 83 could not t he m at t er on t heir own t o challenget he Will t herefore even t he plaint iffcould not do so on t heir behalf The I earned senior counsel t he appellantplaced reliance on t hej udgm entof t he Honble Suprem eCourt in t he case of Aanaim ut hu Thevar I eceased by l2sI V Alagam m aland ot hers AlR 2005 Suprem eCourt 4004 t o claim t hat t he suit filed by m r 0 0 I 0 I Z 0 08 t he plaint iffwas hit by const ruct ive res j udicat aThis j udgm entdoes wm o Z not supportt he case of defendant NoI l appeilantas in t he said case t he plaint iffin t he second suit was drawinghis t it ie t hougha person I l who had his rightI t was inview of t he said fact t hat t he second suit was heid t o be barred by const ruct ive res j udicat a whereas in t he presentcase t he I earned I ower appellat eCoun right lyheld t hat t he previoussuit was not bindingon t he plaint iHas she was not part yt o t he previoussuit The I earned senior counsel t he appellant also cont ended t hat t he I earned Court s below m isread t he set t led I aw t hat even if t he principleof res j udicat awas not applicablest ill t he plaint iffwas est oppedbyher conduct t o m aint aint he presentsuit as in t he previoussuit reiief on her behalf was also claim ed as in t he presentcase she was claim ingrelief on behalf of defendant s No 28 Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document m L 0 0 0 I Z 2 Cr 08 7 Z C 88 4 RSA No6 of 1991 12 The decree passedagainstdefendant s No 2 8 3 was challengedI ll appealI n support of t his cont ent ion reliance was placedon t he j udgm entof t he Honble Suprem eCou in t he case of Bhanu Kum ar Jain V Archana Kum ar and anot her AiR 2005 Suprem eCourt 626 wherein t he Honble Suprem eCout t has been pleasedt o I aydown as under There is a dist inct ion bet ween issue est oppel and res j udicat aRes j udicat adebars a Court t o det erm ine t he from exercisingit s I is if it has at t ained finalit ybet ween t he part ies whereas t he doct rine of issue est oppelI S invoked againstt he part yf such an decided againsthim he would be est opped from raisingt he issue is sam e in t he I at t erproceeding The doct rine of res j udicat acreat es a different kind of est oppelviz Est oppelbyAccord I l Finally reliance was placedon t he j udgm entof t he Honbie Pat na HighCourt in t he case of Thakur Ram Sahai Sinha Ve Most t Bim la Devi and anot her AlR 1980 Pat na 204 wherein t he Honble Pat na HighCourt has I aiddown t hat t o at t ractt he provisions of Sect ion 11 of t he Code of Civil Procedure t he issue in conflict need not necessarilyanse from t he pleadingsit could arise even at t he hearingof t he suit I n support of t he t hird subst ant ial quest ionof I aw t he cont ent ion raised was t hat I n view t he j udgm entExJ3 defendant s No2 83 were barred t o challenget he Will or claim any piaint iHcouid not also fiie a suit on JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document Gupt a Suruchi int erest in t he 10: 24 True Scanned Copy of Original PHHC,Chandigarh 89 S RSA No6 of 1991 t heir behalf 1J 13 On t he groundof t he cont ent ionsreferred t o above it was prayedt hat t he subst ant ial quest ionsof I aw be answered in favour of t he appellantand againstt he Mr GS Gandhi I earnedcounsel appearingon behalf of t he plaint iffl however support edt he j udgm entand decree passedby t he I eam ed I ower appellat eCout 1 by t he appellantt hat t hat t he plea of t he second suit was hit by const ruct ive res j udicat acannot be accept edas in order t o succeed a pleaof res j udicat ait has t o be provedt hat t he part ies in t he previoussuit weresam e t he subj ectm at t er of t he suit was m r 0 0 I 0 I Z 2 0 4 ident ical or sam e t he m at t er in t he previoussuit should be decided finallybet ween t he part iesand t he j udgm entand decree should be of a com pet entCouI t Cle The cont ent ion of t he I earned counsel for t he plaint iff1 respondent swas t hat t hought he subj ectm at t er of t he suit ident ical and t he m at t er has been Onallydecided byt he com pet ent Court but t he part ieswere not sam e as t he plaint iffI respondent was not part yt o t he previous t herefore t he plea of j udicat acannot be accept ed I n suppot t of t his cont ent ion t he iearned counsel for t he plaint iff1 respondentplacedreliance on t he j udgm entof t he Honble Suprem eCourt in t he case of SyedMohc Salie Labbi Deadlby RsI nd ot hers Vs Mohrl HanifDeadl by LR And ot hers AlR 1976 Suprem eCourt 1569 There can be no disput ewit h t his Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 40 9 4 RSA No6 of 1991 of I aw 14m The I earnedcounsel for t he plaint iHl respondentalso placedreliance on t he j udgm entof t he Honble Suprem eCourt in t he case of Gurbux Singh Va Bhooralal AlR 1964 Suprem eCourt 1810t o cont end t hat in order t o succeed in a pleaof res j udicat at he part yhas t o file evidence as weli as pleadingin previoussuit and no 1 C 0 C C5 findingcan be recorded on t he basis of reasoninggiven in t he The reliance on t his j udgm entby t he I earned counsel for t he plaint iff1 on t he face of it is m isconceived as t he Honble Suprem eCouI t in t he case was t he provisionsof Order 2 Rule 20f t he Code of Civil Procedure and not t he principle Z r I C45 of res j udicat a The I earned counsel t he plaint iffl m m o Z t hereaft er cont ended t hat t he Will was right lydisbelieved and t he Om reasons givenby t he I earned I ower appellat eCouI t t o discard t he Will const it ut e suspiciouscircum st ance which were requiredt o be dispelledby t he propounderof t he Will I n supportof t he findingof t he I earnedI ower appellat eCourt t he I earnedcounsel for t he plaint iH 1 respondentplaced reliance on t he j udgm entof t he Honble Suprem eCourt in t he case of BharpurSinghS Ors Vs Sham sher Singh20091 RCR Civio826 wherein it has been I aid down t hat t he of t he Will by it self would not m ean t hat t he st at ut ory requirem entof provingt he Will is not requiredt o be com pliedwit h The Honble Suprem eCourt Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh in t his j udgm enthas I aid down JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 41 J RSA No6 of 1991 1 15 0 C I C5 I L I a5 7 Z t hat deprivingt he nat ural heirs in preferencet o dist ant relat ives is a circum st ance The Honble Suprem eCourt in t his very furt her I aid down t hat t he Court before accept ingt he Will shouldt ake necessary precaut ionwit h regardt o t he due execut ion of t he Will Reliance t hereaft er was placedon t he j udgm entof t he Honble Suprem eCourt in t he case of ApolineDSouza VJohn DSouza 2007 RCR Civiil 260 wherein againit was held t hat m ere of t he Will would not dispensewit h t he requirem ent of proofof due execut ion and at t est at ionof t he Will The I earnedcounsel also placedreliance on t he j udgm ent of t he Honble Suprem eCourt in t he case of Sm t Jaswant Kaur v Sm t Am rit Kaur and ot hers AI R 1977 Suprem eCourt 74 t o cont end t hat it was for t he t o explaint he suspicious circum st ances t he due execut ionof t he Will Reliance was t hereaft er placedon t he j udgm entof t he Honble Suprem eCourt in t he case of K Laxm anan v Thekkayil Padm ini and ot hers RCR Civio389 wherein it has been held t hat when t he Will is surrounded bysuspiciouscircum st ances t hen it cannot be held t o be proved Reliance was also piacedon t he j udgm entof t he Honble Suprem eCourt in t he case of Adivekka S Ors v Hanam avva Kom Venkat esh D By LRs 200721RCR Civio 811 t o cont end t hat Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh of propert yt o st rangerin preferencet o wife and children JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 42 1 d RSA No6 of 1991 1 16 is a suspicI ouscircum st ance The I earned counsel t he plaint iffl cont ended t hat evidence of Banarsi Dass who was exam ined t o provet he due execut ion of t he Will could not be accept edand was right iyrej ect edbeingnot a resident of different village and was furt hernot able t o give of t he fam iiyof Dewa Singh He could t herefore not be believed t o prove t he due execut ion as held byt he I earned I ower appellat eCout t I n view of t he subm issions m ade above t he cont ent ionof t he I earned counsel for t he plaint iffl was t hat t he subst ant ialquest ionsof I aw be answered againstt he defendanf 1 No and in favour of t he plaint iff The I earnedcounsel for t he appellantcont ended t hat t he I earnedI ower appellat eCourt right lypassedt he decree in favour of 1 0 0 5 4 Z 5 C 1 I 08 Z 0m t he piaint iffand defendant s No2 8 3 as t he Court could acceptt he Will in t ot o or rej ect edit in t ot o and could not part iallyacceptit On considerat ion of t he m at t er I find force in t he cont ent ions raised by t he I earned senior counsel for t he appellant The findingof I earnedI ower appellat eCourt cannot be accept edfor t he reason t hat t he I earned I ower appellat eCourt has not givenany reason wit h t he findingrecorded on Ex even t houghwould not operat eas res j udicat abut was cert ainlya pieceof evidence in supportof t he Wil This evidence was m ost im port antas t he plaint iffin t he suit was not claim ingonlyher right but also rightof defendant s No2 S 3 who were part yt o t he previous Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 43 4 4 RSA No6 of 1991 19 7 1 C 0 C I C5 I Z I a5 7 Z m wherein t he Will in disput ewas upheld The reason givenbyt he I earnedI ower appellat eCout t I aw if t aken in isolat ion cannot be doubt ed but in order t o find out whet her t he Will was dulyexecut ed or not t he t ot alit yof t he circum st anceswere t o be seen and not in isolat ior The I earnedI ower appellat eCourt failed t o t ake not e of t he fact t hat t he Wili in quest ionWaS dulyprovedand accept edby t he Court t o be t he valid Will under which defendant Nol was held t o be absolut e owner of t he propert yThe Honble Suprem eCourt t he case of Sadasivam Vs Doraisam y1996 Suprem eAppeals Report er408 CI had I aiddown t hat absence of wit ness from t he in execut ingt he Will is not a suspiciouscircum st ance for t he reason t hat t he execut or of t he Will can call any person t o at t est it I ll whom he has t he confidence This Court in t he case of MangatRam 80rs Vs Dina Nat h 199711Civil Court Cases 570 Hl had I aid down t hat validlyexecut ed Will which is provedby proper evidence before t he Court cannot be ignoredm erelyOll t he ground t hat som e class heirs were excluded Honble Orissa HighCoult in t he case of ND Sam ant V Kum ari JayashreeRoy S Ot hers 1989 Civil Coun Cases 277 Orissal has I aid down t hat t he wit nesses deposingaft er I ongI apse of t im e t hen of fact s and are requiredt o be overiooked Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 44 a 144 RSA No6 of 1991 8 I n view of different byt he diHerent High Court s and t he Honble Suprem eCourt of I ndia t he set t led I aw wouldbe whet her in t he fact s and circum st ances Will was provedor I n a givencase cert ain fact s can const it ut e suspicious circum st ancewhereas in ot her case it m ay not be SO I n t he present case what is requiredt o be seen is t hat t he plaint iffcam e Couit not t o claim her own right sbut on behalf of her ot her sons t o t he who had failed in previous The findingregardingWill in t he previous wherein t he second at t est ingwit ness was exam ined and believed was a goodpiece of evidence on which m 0 Co I C5 I Z 2 I 08 reliance should have been placedby t he I earned appellat eCoun The I earnedt rial Cout l was rightin com ingt o t he conclusion t hat t he I Z 0 execut ion of t he Will was dulyproved The I earned I ower appellat eCourt while dealingwit h t he suspiciouscircum st ances overiooked t he reasons byt he I earned t rial Court in upholdingt he WiI Merelybecause t he j udgm entin t he previoussuit was not t o operat eas res j udicat aqua t he plaint iff However while grant ingrelief t his aspectwas not t aken not e of Defendant s No 83 were also declared t o be owners t o t he ext ent of 114 share eaclrhis findingon t he face of it is perverse as nobodycan claim a relief indireclI ywhich is not availablet o him direct ly Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh Defendant s No2 8 3 t n view of t he previousj udgm ent JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 45 4 4 RSA No6 of 1991 19 0 C C I Z C 08 4r n7 Z couldnot t he Will or claim any share as defendant Nol was heldt o be absolut e owner The plaint iffon t he ot her hand could claim only114 share t hat t oo if her pleawast o be accept edt hat t he I Nillwas not genuine I n view of t he referred t o above t he subst ant ial I aw are answered in favour of t he appellantand it is held t hat t he and decree passedby t he I earned I ower Court is out com e of m isreadingof docum ent aryevidence Ex and furt hert hat t he I earned I ower appellat eCourt did not m eet wit h t hereasoninggivenby t he I earnedt rial Court t o acceptt he Will when t he j udgm entint er se bet ween t he defendant s reliedupon by t he plaint iffin suppot tof her case t houghshe had concealedt he fact t hat t he j udgm entand decree passedin favour of defendant s No2 8 3 was set aside by t he I earned I ower Coun and t hat on rem and t he suit was dism issedby upholdingt he Will in favour of defendant No1 1 appeilant The j udgm entand decree in any case is perverse as t he Court could have grant eddecree onlyin favour of t he plaint iHand not in favour of defendant s No2 8 3 in view of E De3 However t his quest iondoes not arise as t his Court feels t hat t he findingonissue NoA by t he I earned I ower appellat eCourt cannot be sust ained and is reversed and t hat of t he I earned t rial Cout l is upheldas suspiciouscircum st ances point edout could not be a groundt o discard t he Will which was upheldbyt he com pet ent Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 46 2 RSA No 56 of 1991 1 20 1 C 0 0 I C5 I 14 Z I 05 ev2 Z C J Court and t he j udgm enthas at t ainedfinalit yEven ot herwise in view of t he I aw I aid down by t he Honble Suprem eCourt in t he case of Bhanu Kum ar Jain llrchana Kum ar and anot her I pralplaint iH was est oppedt o chailenget he Will t his appealis allowed t he j udgm entand decree passedbyt he I earnedI ower appellat eCourt is set aside and t hat of t he iearned t rial Court is rest ored but wit h no order as t o cost s May2010 4 VI NOD Ke SHARMA I JUDGE r 171 1 Gupt a Suruchi 10: 24 True Scanned Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document