Ibrahim (S) v. Smt. Sakina And Another (S)

AJAY TEWARI, J (Oral)

This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiff/respondent No. 1 that she had inherited the property of deceased-Farid being his widow.

Respondent No. 1 filed a suit claiming that she was the widow of deceased-Farid and specifically challenging the Will alleged to have been executed by the deceased-Farid on 30.11.1994 In the written statement, the appellant and respondent No. 2 (defendants) took a plea that the appellant had inherited the property of Farid by Will dated 22.4.1994 In the replication, respondent No. 1 disputed the correctness of the said Will also.

During the course of the trial, the appellant and respondent No. 2 were proceeded against exparte. Thereafter, respondent No. 1 filed an application for correction and pleaded that she be allowed to challenge the Will dated 22.4.1994 also. This application was allowed. Consequently, on a conspectus of the entire evidence, as mentioned above, the suit was decreed. The appeal filed by the appellant was dismissed both on the grounds of exparte proceedings as well as on merits.

Counsel for the appellant has raised the following questions:-

“i) Whether an application for correction of plaint, addition of a new relief and framing of additional issue, could be allowed without notice to the defendants ?

ii) Whether report/opinion of an expert could be read in evidence without its proof by production of the expert as witness and affording opportunity for his cross-examination ?

iii) Whether non-registration of a Will could be treated as a suspicious circumstance ?

iv) Whether the impugned judgments and decrees result from mis-reading of evidence and admission of inadmissible evidence ?

It would be seen that questions No. (ii), (iii) and (iv) are pure questions of fact. Counsel for the appellant has taken me through the findings and the evidence but has not been able to persuade me that these findings are either based on no evidence or are based on such misreading of evidence so as to render the same perverse. With regard to question no. (i), counsel for the appellant has argued that when the plaintiff-respondent No. 1 was permitted to challenge the Will dated 22.4.1994 the entire nature of the suit was changed and, thus, a fresh notice was required to be issued to the appellant.

In my opinion, this argument is not tenable. It would be seen, as mentioned above, that in the replication respondent No. 1 had challenged the validity of the Will dated 22.4.1994 also. Thus, the argument of counsel for the appellant that respondent No. 1 had changed the nature of the suit entirely when her application for challenging the Will dated 22.4.1994 was allowed cannot be accepted. It cannot be lost sight of the fact that the appellant did go ex-parte and, thus, lost his right to participate in the trial. Thus, this question is answered against the appellant. Consequently, this appeal is dismissed with no order as to costs.

(AJAY TEWARI) July 28, 2009. JUDGE

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