Regular Secnd Appeal No.1617 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-4.8.2010 Smt.Kirti and others ...Appellants Versus Smt.Kanta Devi and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Om Parkash Sharma, Advocate for the appellants. M ehinder S ingh S ullar , J . (Oral) Having lost in the Courts below, Smt.Kirti and her children appellant-defendants filed the present appeal. The brief facts, relevant for disposal of present appeal and emanating from the record, are that Dharam Singh son of Sohan Lal was the owner and in possession of the property in dispute. He died on 7.11.2004, leaving behind his widow Smt.Kanti Devi-respondent-plaintiff No.1 and daughter Smt.Chander-respondent-plaintiff No.2 (hereinafter to be referred as “the plaintiffs”) and son namely Shiv Kumar. Shiv Kumar died on 13.11.2003 and pre-deceased his father, leaving behind his widow Smt.Kirti, Lakshika and Himanshu appellant-defendants (hereinafter to be referred as “the defendants”) 2. Concisely, according to the plaintiffs, after the death of Dharam Singh, the house in question is still joint and has not been partitioned interse between the parties by metes and bounds as per their shares. Plaintiff No.1 and defendant Nos.2 to 4 are residing in the said house, while plaintiff No.2 and her husband are carrying on business in it. The defendants were asked several times to partition the house, but they refused to do so. On the basis of aforesaid allegations, the plaintiffs filed the present suit for partition of disputed property as per their shares by virtue of natural succession. 3. The defendants contested the suit and filed the written statement, Regular Secnd Appeal No.1617 of 2010 2 inter-alia, pleading certain preliminary objections of, maintainability of suit; locus standi and cause of action of the plaintiffs etc. The relationship between the parties was admitted. On merits, it was claimed that Dharam Singh executed a Will dated 27.1.2000 (Ex.D6) and bequeathed the disputed house exclusively to his son Shiv Kumar and in the event of his death, to his grand son Himanshu defendant No.3. Thus, the plaintiffs have no right, title or interest in the property in dispute. Succinctly, the defendants claimed that in the wake of Will (Ex.D6), Humanshu defendant No.3 is owner and in possession of the disputed property. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 4. In the wake of pleadings of the parties, the trial Court framed the relevant issues for proper adjudication of the case. 5. The parties to the litigation, brought on record the oral as well as documentary evidence, in order to substantiate their respective pleas. 6. Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court decreed the suit of the plaintiffs and passed a preliminary decree for partition in respect of the disputed house, as per shares of the parties, by virtue of impugned judgment and decree dated 29.8.2008. 7. Aggrieved by the judgment and decree of the trial Court, the appellant-defendants filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 29.4.2009. 8. The appellant-defendants still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal. 9. After hearing the learned counsel for the appellant-defendants, after going through the record with his valuable help and after considering the matter deeply, to my mind, there is no merit in the appeal. 10. However, the main contention of the learned counsel that since Regular Secnd Appeal No.1617 of 2010 3 Dharam Singh executed the valid Will (Ex.D6) bequeathing his entire property in favour of his son Shiv Kumar and in the event of his death, to his grand son defendant No.3, so, the plaintiffs did not have any share in the property in dispute, is not only devoid of merit but misplaced as well. 11. As is evident from the record that the factual matrix, relationship of the parties with deceased Dharam Singh and dates of deaths of Shiv Kumar and his father are not in dispute. The plaintiffs are claiming their shares in the suit property by virtue of natural succession, while the defendants have set up a specific plea that Dharam Singh (since deceased) had executed the valid Will (Ex.D6) and bequeathed his entire property in favour of his son Shiv Kumar and in the event of his death, to his grand son. That means, a heavy burden of proof was upon the defendants to prove the execution of Will (Ex.D6) that too beyond the suspicious circumstances. The trial Court has held that the Will was surrounded by suspicious circumstances. The first appellate Court has also critically examined the Will and narrating the sequence of events described in para 9, has recorded a very cogent and valid reason in ignoring the Will being surrounded by suspicious circumstances as well. 12. Meaning thereby the Courts below have rightly ignored the Will. Once the Will is ignored, then naturally, the plaintiffs are entitled to partition of their joint land, as per their shares by way of natural succession. Thus, the Courts below have rightly accepted the claim of the plaintiffs in this regard and contrary arguments of learned counsel for appellant-defendants 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances. 13. No meaningful argument has been raised by the learned counsel for the appellant-defendants, to assail the findings of the Courts below in this context. All remaining arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-defendants, in this relevant behalf, have already been duly considered and dealt with by the Courts below. Regular Secnd Appeal No.1617 of 2010 4 14. Moreover, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that no implicit reliance can be placed upon the Will (Ex.D6) as it is surrounded by suspicious circumstances. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellant- defendants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard. 15. In other words, the entire case revolves around the re-appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, muchless substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case. 16. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-defendants. 17. In the light of the aforementioned reasons, as there is no merit, therefore, the instant appeal is hereby dismissed. (Mehinder Singh Sullar) 4.8.2010 Judge AS