This second appeal sought cancellation of a registered Will executed in favor of the respondent. The High Court held that since the Will was registered, the burden to prove it was not executed out of free will lay on the appellants. The court found no manifest error in lower courts' findings and dismissed the appeal.
Appeal rejected summarily.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Civil Second Appeal No. 200/2018
Versus
Jagdish S/o Shri Bhoja Ram, B/c Jat, R/o Village Gandheli, Tehsil Rawatsar, District Hanumangarh.
----Respondent
For Appellant(s) : Mr. N.L. Joshi
HON'BLE MR. JUSTICE P.K. LOHRA
Order
15/11/2018
Appellant-plaintiffs have preferred this second appeal under Section 100 CPC to challenge judgment dated 04.09.2018 passed by Additional District Judge No.2, Nohar, District Hanumangarh (for short, ‘learned first appellate Court’), whereby learned first appellate Court, while dismissing appeal of the appellants, has affirmed judgment dated 23.05.2013 passed by Civil Judge (Sr.Div.) Nohar, District Hanumangarh (for short, ‘learned trial Court’).
At the threshold, on behalf of appellant-plaintiffs, a suit was filed for cancellation of Will dated 05.01.2002, executed by Ms. Parmeshwari Devi in favour of respondent-defendant, pertaining to
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[CSA-200/2018]
some agricultural land. For seeking cancellation of testamentary instrument, many averments are made besides highlighting a fact that at the time of execution of Will, testator was incapable to execute the same. The respondent-defendant contested the suit. Learned trial Court framed solitary issue regarding the relief prayed for by the appellant-plaintiffs. The parties led their evidence and finally learned trial Court by its judgment and decree dated 23.05.2013 rejected the suit. While rejecting the suit, learned trial Court made sincere endeavour to appreciate the evidence and other materials available on record. Being aggrieved by the same, appellant-plaintiffs approached learned first appellate Court and the learned first appellate Court examined the matter afresh, and upon re-appreciation of evidence, while strictly adhering to Rule 31 of order 41 CPC, found no manifest error in the impugned judgment of the learned trial Court. Learned first appellate Court, therefore while concurring with the findings and conclusions of the learned trial Court, has dismissed the appeal.
I have heard learned counsel for the appellants, perused the impugned judgments and also gone through the proposed substantial question of law mentioned in the memo of appeal.
Upon perusal of the judgments of both the Courts below, in my considered opinion, there is concurrent finding of fact recorded by both the Courts below upon appreciation of evidence in right perspective. A very significant fact, that the testamentary instrument was registered and therefore burden of proving that the same was not executed by the testator out of her free Will, or at the time of its execution she was incapable of executing the same, was on the appellants.
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[CSA-200/2018]
Learned trial Court as well as learned first appellate Court, after examining the evidence, tendered on behalf of appellants, has recorded a unison finding that they have failed to discharge their burden. It is also significant to note that there is presumption about registered instrument and said presumption cannot be dislodged on the strength of mere hazy evidence. In totality, both the attesting witnesses of the Will have not materially supported the version of the appellants. The substantial question of law proposed by the appellants are also not satisfying the requirements as these are pure question of fact and in second appeal re-appreciation of evidence is not permissible.
In view thereof, in my opinion, no case for interference in exercise of jurisdiction under Section 100 CPC is made out.
Consequently, the appeal fails and the same is hereby rejected summarily.
Bharti/20
3 issues framed by the court
Whether the appeal under Section 100 CPC is maintainable when the genuineness of a registered Will is challenged without new evidence.
Whether Burden of proving that a registered Will was not executed out of free will lies on the appellants due to its registration.
Whether the lower courts' findings that appellants failed to discharge their burden can be disturbed in second appeal.
1 provisions across 1 enactments
Sushila @ Shakila D/o Bhoja Ram
Maina D/o Bhoja Ram
Santroo D/o Bhoja Ram
Jagdish S/o Shri Bhoja Ram
P.K. LOHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
