This court dismissed the second appeal challenging the dismissal of a succession suit. The appellant failed to prove fraud as she did not testify and relied on non-witness testimony deemed hearsay. The court held concurrent findings were not affected by law or facts.
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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
RSA No. 1801 of 2011(O&M) Date of Decision: 28.2.2012.
Kanwaljit Kaur
--Appellant
Versus
Inderjit Singh and another
--Respondents
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. Jaswant Jain, Advocate for the appellant.
TEJINDER SINGH DHINDSA.J
The plaintiff-appellant is in second appeal before this Court having remained unsuccessful in both the courts below.
The plaintiff-appellant filed a suit for declaration and permanent injunction against her own brother in terms of pleadings that their father Sh. Mohinder Singh Ahluwalia died on 13.4.1994 leaving behind the plaintiff-appellant and defendant no.1 as the only legal heirs. The mother of the plaintiff-appellant had pre-deceased her father. Consequent upon the death of the father the plaintiff-appellant and defendant no.1 succeeded to his estate in equal shares. It is pleaded that the father had owned moveable and immovable property and a number of requests had been made to defendant no.1 to divide such moveable and immovable property in equal shares. Plaintiff-appellant pleaded that she had visited Patiala to see defendant no.1, her brother and upon such visit defendant no.1 had played a fraud in terms of obtaining her signatures on certain blank stamp papers which she had signed in good faith. It is pleaded that thereafter plaintiff-appellant became aware that defendant no.1 had withdrawn amounts of money lying in the bank as also the post office. As
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such the consequential relief of permanent injunction was also prayed for restraining defendant no.1 from withdrawing any amount including the F.D.Rs lying deposited in different banks and post offices in the name of late Sh. Mohinder Singh Ahluwalia.
The suit was contested by the defendants. Even though, defendant no.1 had initially appeared through counsel but subsequently he was proceeded ex-parte. Defendant no.2 filed a written statement stating that the plaintiff-appellant had failed to furnish any details regarding the account numbers or the specific amount that had been left by deceased Mohinder Singh Ahluwalia. Defendant no.2-bank further stated that the amount lying in the bank account would be released only upon production of a succession certificate in terms of banking rules and norms. It was further stated that no succession certificate had been produced by defendant no.1.
The Trial Court framed the following issues:-
The Trial Court dismissed the suit filed by the plaintiff-
appellant and even the civil appeal preferred by the plaintiff-appellant has
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met the same fate in terms of passing of impugned judgement dated 14.12.2010 by the Additional District Judge, Patiala.
I have heard Mr. Jaswant Jain, learned counsel for the plaintiffappellant at length.
Learned counsel would vehemently argue that the courts below have merely non-suited the plaintiff-appellant by drawing an adverse inference against her as she had not come present in the court herself to depose on oath as per the averments made by her in the plaint. Learned counsel would place heavy reliance on the judgement rendered by the Hon'ble Apex court in case of Rattan Dev Vs. Pasam Devi reported as 2002 (4) RCR (civil) 510 to contend that it was incumbent on the courts below to have appreciated the entire oral and documentary evidence that had been led.
I have given my thoughtful consideration to the submissions raised by learned counsel for the appellant but I find that the present second appeal is wholly devoid of merit and must fail for the reasons recorded herein below:-
There would be no dispute as regards the proposition of law that the Trial Court as also the First Appellate Court was duty bound to appreciate the oral and documentary evidence available on record even if, the plaintiff-appellant had abstained from entering into the witness box. It may be noticed that in case of Rattan Dev Vs. Pasam Devi (supra) relied upon by learned counsel for the plaintiff-appellant, the First Appellate Court in the facts of that case had been influenced merely on account of nonexamination of the plaintiff-appellant therein and had drawn an adverse inference against her and directed the suit to be dismissed solely on such
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account in spite of the fact that other evidence had been led and was available on record and the same had not received any attention of the First Appellate Court. The facts of the instant case are otherwise. Even though, the plaintiff-appellant had set up a plea of fraud having been played upon her at the hands of defendant no.1, her own brother, the plaintiff-appellant had chosen not to enter in the witness box. The plaintiff-appellant had examined Jaswant Singh, her husband, who had deposed that defendant no.1 had been residing along with late Sh. Mohinder Singh Ahluwalia during his life time. He further deposed that his wife, present plaintiff-appellant was entitled to inherit the estate of deceased Sh. Mohinder Singh Ahluwalia in equal shares. Jaswant Singh further deposed that defendant no.1 had fraudulently and by way of misrepresentation got the signatures of Kanwaljit Kaur, plaintiff-appellant on some blank papers. He has further deposed that defendant no.1 had got prepared a relinquishment deed dated 16.4.1998 which had never been executed by Kanwaljit Kaur, plaintiffappellant and such relinquishment deed is a forged and fabricated document. Apart from the husband of the plaintiff-appellant, PW-2 Gurjant Singh and PW-3 Jaswant Singh were examined by the plaintiff-appellant. Both the courts below have adverted to the testimony of the witnesses produced on behalf of the plaintiff-appellant and have held the testimony of PW-1 Jaswant Singh to be based on hearsay evidence. Likewise, the testimony of the two other witnesses i.e. PW-2 and PW-3 have also been considered in the same light i.e. hearsay evidence as they had not stated anywhere that the defendant no.1 had obtained the signatures of the plaintiff-appellant on blank papers in their presence. No documentary evidence had been led to establish the plea of fraud and misrepresentation
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set up against defendant no.1. As such it is not a case, where the courts below have shut their eyes in so far as the oral evidence that had been led on behalf of the plaintiff-appellant.
There is another aspect of the matter. The relinquishment deed dated 16.4.1998 was alleged to have been executed by the plaintiffappellant regarding her share in the property of late Sh. Mohinder Singh Ahluwalia. In terms of such relinquishment deed dated 16.4.1998 no property was left in the share of the plaintiff-appellant on the date of her having instituted the suit on 25.3.2000. However, no challenge had been set up to such relinquishment deed in the suit, even though, her husband Jaswant Singh had made a specific mention as regards such document. Learned counsel refers to the grounds of appeal filed before this Court to bring to my notice that an application had been filed under Order 6 Rule 17 C.P.C on 10.4.2007 for amendment of the plaint to lay a challenge on such relinquishment deed dated 16.4.1998. Learned counsel was candid enough to admit that such application seeking amendment to challenge the relinquishment deed had been dismissed by the Trial Court but no remedy had been sought against the dismissal order thereafter.
In the light of the reasons recorded above, I do not find it to be a fit case that would warrant interference in the concurrent findings recorded by the courts below. Learned counsel had not been able to point out any misrepresentation or misreading of evidence.
The present second appeal is, accordingly, dismissed as it does not raise any question of law much less a substantial question of law. Appeal dismissed.
(TEJINDER SINGH DHINDSA) JUDGE
28.2.2012.
lucky
Whether to be reported? No.
3 issues framed by the court
Whether courts below erred in not appreciating oral and documentary evidence due to appellant's absence.
Whether the conclusion that witnesses' testimony was hearsay and no fraud was established warrants interference.
Whether the failure to challenge the relinquishment deed in the plaint precludes relief.
Colour shows how this judgement treated each authority
Rattan Dev Vs. Pasam Devi 2002 (4) RCR (civil) 510Explained¶35
Kanwaljit Kaur
Inderjit Singh
Tejinder Singh Dhindsa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
