Dismissed

Surinder Mohan etc. v. Tilak Raj etc.

Punjab & Haryana HC17 Sept 2009RSA/4461/2005

Case brief

AI extract

What is this about?

Single judge of the Punjab and Haryana High Court dismissed an appeal against a partition decree. The judge held that rejecting the appellants' Will was a finding of fact open to the lower courts and did not amount to perversity. Consequently, the appeal was dismissed.

What did the court decide?

C.M No. 12059-C allowed; delay of 70 days condoned; main appeal (R.S.A No. 4461 of 2005) dismissed with no order as to costs.

Surinder Mohan etc. Vs Tilak Raj etc. — Partition | Punjab & Haryana HC (2009)

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R.S.A No. 4461 of 2005 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.M No.12059-C of 2005 and R.S.A No. 4461 of 2005 (O&M) Date of decision : September 17, 2009

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Surinder Mohan and others,

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...... Appellant (s)

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Tilak Raj and others,

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...... Respondent(s)

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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

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Present : Mr. C.B.Goel, Advocate for the appellants.

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Mr. Munish Jolly, Advocate for respondents No.1 to 8.

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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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2. To be referred to the Reporters or not ?

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3. Whether the judgment should be reported in the Digest ?

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AJAY TEWARI, J (Oral)

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C.M.No.12059C of 2005

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For the reasons recorded, C.M is allowed and delay of 70 days

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in refiling the appeal is condoned.

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R.S.A No.4461 of 2005

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This appeal has been filed against concurrent judgments of the Courts below whereby a preliminary decree for partition has been passed.

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The respondents/plaintiffs had filed a suit claiming that their mother Ram Rikhi had executed a Will which incidentally followed natural succession, and had further claimed partition on the basis thereof. The

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R.S.A No. 4461 of 2005 (O&M)

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appellants had pressed into service an earlier Will. Both the Courts have on fact disbelieved the execution of the Will in favour of the appellants.

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The following questions have been proposed :-

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“ i) Whether the judgments and decree of the Courts below can legally be sustained as totally perverse view has been taken by the Courts below while dealing with the validity and due execution of the Will in favour of the appellants and with regard to the validity of the Will dated 2.11.1976 ?

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ii) Whether the findings of the Courts below that the plaintiffs are not required to prove due execution of the Will dated 2.11.1976, can legally be sustained when even the original Will has not been produced on record and the attesting witnesses have not supported the due execution of the Will ?

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iii) Once the property in dispute has been held to be not joint Hindu family property as pleaded by the plaintiffs, whether the suit can be decreed in favour of the plaintiffs ?

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iv) Whether in view of the facts and circumstances of the case and the averments made above the judgments and decree of the Courts below are sustainable in law ?”

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It would be seen that questions No. (i), (ii) and (iv) are pure questions of fact. Counsel for the appellants has not been able to persuade me that the findings recorded thereon are either based on no evidence or are based on such misreading of evidence as would render the same perverse.

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R.S.A No. 4461 of 2005 (O&M) ::3::

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With regard to question No.(iii), suffice it to state that once the Will in favour of the appellants has not been proved, this question does not arise.

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Consequently, this appeal is dismissed with no order as to

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costs.

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As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of.

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( AJAY TEWARI ) September 17, 2009. JUDGE `kk'

Surinder Mohan etc. v. Tilak Raj etc.

Case brief

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Surinder Mohan etc. v. Tilak Raj etc.

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