Abhey Kumar v. Ramesh Kumar And Others S

Ajay Tewari, J. (Oral):

Against the decree in question, two appeals were filed, one by the original plaintiff and one by another brother. Both the appeals having been allowed by the same order, the present two appeals bearing RSA Nos. 1196 and 1197 of 2012 have been filed and are being disposed of by this common order. Facts are being taken from RSA No. 1196 of 2012.

The respondent-plaintiff Nalini Sood (since deceased and represented through her LRs) filed a suit for declaration that she had inherited the property in dispute owned by her mother along with the other legal representatives. The appellant disputed the averments made in the plaint by placing reliance on a registered will dated 14.06.1996 as per which the mother of the parties had made him the sole legatee of her entire property which was the present property in dispute, a shop and an office in Sector 26, Chandigarh and half share of a property in Kassauli and as per which all her movable property was to go the daughters of the appellant. The trial court dismissed the suit and, as mentioned above, the learned Lower Appellate Court held that the will was surrounded by suspicious circumstances and consequently decreed the suit.

When this appeal was filed the following questions were proposed:-

i) Whether the learned Lower Appellate Court was justified and legally correct in reversing the well reasoned judgment and decree of the learned trial Court?

ii) Whether the learned Lower Appellate Court was justified in concluding that the Will dated 14.06.1996 was surrounded by suspicious circumstances?

iii) Whether the learned Lower Appellate Court was legally correct in doubting the genuineness of the registered will dated 14.06.1996 despite having been duly proved in accordance with law?

iv) Whether mere participation of the beneficiary of the will can have the invalidating the will?

v) Whether time gap of 29 years was sufficient to explain difference in the signatures?

vi) Whether evidence beyond pleadings could be appreciated by the court below?

vii) Whether the statement of hired document handwriting expert could inspire confidence particularly when the document from which specimen signatures were taken was not an exhibited document and not available on record?

viii) Whether the scribe is required to sign the will?

ix) Whether the testimony of scribe can be ignored on the ground that he had known the beneficiary of the will?

x) Whether the fact that attesting witness was a friend of the beneficiary of the will could be fatal to the due execution of the will?

xi) Whether the findings returned by Lower Appellate Court are perverse to the facts and evidence on record?

Questions No. (i) to (v) and (vii) to (xi) are pure questions of fact. Learned counsel has taken me through the findings of the learned Lower Appellate Court but has not been able to persuade me that the said findings are either based on no evidence or on such perverse misreading of evidence so as to render this Court liable for interference under Section 100 CPC. Questions No. (vi) in the abstract is a pure question of law. However, on being asked as to what was the evidence which was beyond the pleadings leaned counsel has stated that the plaintiff did not specifically challenge the will in her plaint. Once the plaintiff did not challenge the will which was relied upon by the appellant, the onus to prove the same was on him, the present question cannot arise. Resultantly holding the questions proposed against the appellant/s the appeals are dismissed. No costs.