Dismissed

Bimla Devi v. Karan Singh and Ors.

Punjab & Haryana HC12 Feb 2014RSA/881/2014

Case brief

AI extract

What is this about?

This Court dismissed two second appeals filed by Bimla Devi challenging the dismissal of her civil suits for declaration and partition. The court held that no substantial question of law was involved, the lower courts properly appreciated the evidence validating the Will, and the appeals failed.

What did the court decide?

Both regular second appeals were dismissed with no order as to costs.

Bimla Devi Vs Karan Singh and Ors. — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH AT CHANDIGARH

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RSA No. 881 of 2014 (O&M) Date of Decision: 12.2.2014

Bimla Devi

.....Appellant

Versus

Karan Singh and others

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.....Respondents

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RSA No. 885 of 2014 (O&M)

Bimla Devi

.....Appellant

Versus

Hukam Singh and another

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.....Respondents

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CORAM: HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK

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Present: Mr. N.S.Shekhawat Advocate for the appellant.

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1. To be referred to the Reporters or not?

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

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RAMESHWAR SINGH MALIK J.

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Both these appeals, i.e. RSA No. 881 of 2014 (Bimla Devi Vs. Karan Singh and others) and RSA No. 885 of 2014 (Bimla Devi and Hukam Singh and another), having been filed by the same plaintiff against the similar concurrent findings recorded by both the

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M) 2

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learned courts below, dismissing her suit for declaration and injunction, are being decided together. However, for the facility of reference, facts are being culled out from RSA No. 881 of 2014.

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Brief facts of the case are that plaintiff filed her suit for declaration with consequential relief of permanent injunction against her three real brothers. Second suit, i.e. RSA No. 885 of 2014, was filed by the plaintiff against Hukam Singh and Punjab National Bank. In civil suit No. 14 of 2000 filed by the plaintiff against her brothers, she was claiming 1/4^th share in two properties referred to in the plaint whereas in civil suit No. 809 of 2000 filed against Hukam Singh and Punjab National Bank, she was claiming 1/4^th share out of the amount lying deposited in the account of her father namely late Sh. Durga Parshad. It was pleaded case of the plaintiff that her father died on 6.3.2000 leaving behind plaintiff and defendants as his legal heirs. Plaintiff was entitled to the extent of 1/4^th share in each of the property left by her father. It was also alleged that Will dated 28.6.1993 was a forged and fabricated document, which was shown to have been executed in collusion with deed writer and SubRegistrar. In the second suit against Hukam Singh, it was alleged by the plaintiff that defendant No.1 withdrew the amount from the account of her father in collusion with defendant No.2-Bank.

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Defendants were put to notice. They appeared and filed their written statement denying claim of the plaintiff. It was further pleaded case of the defendants that their father had executed a registered Will and on the basis thereof, suit properties were

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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inherited by them. It was denied that Will was forged and fabricated document. It was also pleaded that suit was not maintainable and it was barred by limitation. Denying other averments taken in the plaint, dismissal of the suit was prayed for.

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Similarly, in the second suit, Hukam Singh-defendant claimed himself to be duly nominated by late Sh. Durga Parshad. Defendant No.2-Bank filed its separate written statement taking preliminary objections about cause of action and misjoinder of necessary parties. On merits, it was stated that late Sh. Durga Parshad appointed Hukam Singh as his nominee. After his death, Hukam Singh moved an application as nominee alongwith claim form and death certificate of Durga Parshad. Alleged collusion was denied and it was pleaded that if the plaintiff had any grouse against defendant No.1, she was free to recover her share from defendant No.1. Denying other averments taken in the plaint, dismissal of the suit was prayed for.

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On completion of pleadings of the parties, learned trial court framed the following issues:-

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“1. Whether plaintiff is co-owner in the suit property mentioned in para No.1 (A&B) of the plaint along with other immovable property left by deceased Durga Prashad?OPP

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2. Whether the plaintiff is entitled to injunction as prayed for?OPP.

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3. Whether suit of the plaintiff is not maintainable in

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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the present form?OPD.

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4. Whether plaintiff has no cause of action to file the present suit?OPD

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5. Whether suit of the plaintiff is not within limitation?OPD

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6. Whether suit is bad for want of proper court fee?OPD

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7. Relief.”

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Similarly, in the second suit, i.e. civil suit No. 809 of 2000,

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following issues were framed by the learned trial court:-

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“ 1 Whether the plaintiff is entitled to get

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1/4^th share of Rs. 9,86,000/- of deceased Durga Parsahd lying deposited with defendant No.2?OPP

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2. Whether the present suit has been filed

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at the behest of Dharambir s/o deceased Durga Parsahd?OPD

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3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction?OPD

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4. Relief”

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With a view to prove their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to the conclusion that plaintiff failed to prove

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her case. Consequently, both the suits were dismissed by the

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Kumar Amit separate judgments of even date. Feeling aggrieved, plaintiff filed 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M) 5

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two separate first appeals, which also came to be dismissed by the learned Additional District Judge, Rewari, vide two separate judgments of even date. Hence these two appeals by the plaintiff.

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Learned counsel for the appellant submits that learned courts below have failed to appreciate the true facts of the cases and also the evidence brought on record, because of which the impugned judgments and decrees were liable to be set aside. He further submits that there was sufficient evidence on record to decree the suits of the plaintiff. However, since both the learned courts below fell in serious error of law, while not appreciating the evidence in correct perspective, impugned judgments were not sustainable. He prays for setting aside the impugned judgments and decrees, by allowing both these appeals.

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Having heard the learned counsel for the appellant at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present cases, no interference is warranted at the hands of this Court, while exercising its appellate jurisdiction under Section 100 of the Code of Civil Procedure ('CPC' for short). No substantial question of law is involved herein, because of which there is no scope to interfere in the concurrent findings of facts, recorded by both the learned courts below. To say so, reasons are more than one, which are being recorded hereinafter.

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It was an admitted fact on record that Will in question was

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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dated 28.6.1993. It was a registered Will of the father of plaintiffappellant, who died on 6.3.2000. He never had any second thought about the Will during all this period of about 7 years. The Will was in favour of his three sons and not in favour of any stranger. Reasonable and sufficient explanation was given in the Will to disinherit the plaintiff. Plaintiff was married in the year 1974 and she was residing in her matrimonial home since the time of her marriage. The disputed property was in the possession of the defendants.

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Further, Deed Writer and Finger Prints Expert were examined by both the parties. Track record of PW2-Vijay Kumar Rustagi, Handwriting and Finger Print Expert, examined by the plaintiff, was not good. It was specifically observed by the learned trial court in para 32 of its judgment. It was observed that in two earlier civil suits No. 662 and 663 decided on 20.5.1986, report submitted by this very witness Vijay Kumar Rustogi was not found trustworthy.

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On the other hand, expert opinion of Handwriting and Finger Print Expert examined by the defendants was found to be convincing and was also corroborated by the evidence of other witnesses. Plaintiff failed to prove that Will was fabricated and forged document. Defendants have duly established that Will was registered in the office of Sub-Registrar, after having been duly executed by the Testator in the presence of the witnesses. Two attesting witnesses were examined by the defendants, who supported the validity of the Will. Execution of the Will was duly proved by oral as well as

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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documentary evidence and the same was not found surrounded by any suspicious circumstance. A combined reading of both the impugned judgments would show that learned courts below have recorded detailed and cogent findings which have not been found to be suffering from any infirmity and the impugned judgments deserve to be upheld.

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Learned lower appellate court rightly affirmed the findings recorded by the learned trial court. In fact, plaintiff has contradicted herself on every relevant aspect of the matter. It has also come on record that a family settlement took place and Durga Parshad suffered a decree dated 30.7.1991 Ex.D1 in favour of one of his sons with respect to a house. Another decree dated 31.5.1995 Ex.D3 was suffered about the disputed property in favour of his son-Ishwar Singh. None of these above said decrees have been challenged by the plaintiff. Until these decrees were challenged by the plaintiff, her suit was not even maintainable. All the necessary ingredients of a legal and valid Will have been duly proved by the defendants by leading sufficient, cogent and well convincing evidence. Judgments rendered by both the learned courts below have been found based on factually correct and legally justified approach, because of which the same deserve to be upheld.

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In the second suit also, plaintiff miserably failed to prove her case. It was clearly mentioned by the testator in his Will that some of his agricultural land had already been acquired by the Government and the amount of compensation has been deposited by him in the

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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bank. It was further stated that all of his three sons namely Karan Singh, Ishwar Singh and Dharambir would be entitled to get the possession in equal shares. Hukam Singh-defendant was also not a stranger. In fact, Hukam Singh was the adopted son of late Sh. Durga Parshad, who was appointed as his nominee to withdraw the amount of compensation and distribute the same equally amongst his three sons.

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Nomination of Hukam Singh by late Sh. Durga Parshad was duly proved from the record of the Bank. Hukam Singh appeared as DW5 and stated that he was legally appointed nominee of his father to withdraw the amount from the Bank and thereafter, he distributed entire amount amongst three brothers equally. Bank officials have also duly supported the case of the defendants. Finding no force in the argument raised by the learned counsel for the appellant, it is unhesitatingly held that impugned judgments and decrees passed by the learned courts below were based on true facts of the case as well as relevant principles of law and the same deserve to be upheld.

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During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments passed by the learned courts below. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the learned courts below. Further, no question of law muchless substantial question of law thereof has been found involved in both the cases, which is sine

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

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RSA No. 881 of 2014 (O&M) & RSA No. 885 of 2014 (O&M)

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qua non for interference at the hands of this Court, in execrise of its jurisdiction under Section 100 CPC. In this view of the matter, it is unhesitatingly held that learned courts below committed no error of law, while passing the impugned judgments and the same deserve to be upheld.

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No other argument was raised.

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Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that both these appeals are bereft of merit and without any substance, thus, these must fail. No case for interference has been made out.

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Resultantly, both these regular second appeals stand dismissed, however, with no order as to costs.

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(RAMESHWAR SINGH MALIK) JUDGE

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12.2.2014 AK Sharma

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Kumar Amit 2014.05.02 12:21 I attest to the accuracy and integrity of this document

Bimla Devi v. Karan Singh and Ors.

Case brief

What is this about?

What did the court decide?

Bimla Devi v. Karan Singh and Ors.

Case brief

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What did the court decide?

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