IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 117 of 1999. Judgement reserved on: 8.5.2009. Date of decision: May 25, 2009. Smt. Krishna Devi & anr. ….. Appellants. Vs. Amar Singh & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellants : Mr. G.D.Verma, Senior Advocte with Mr. B.C. Verma, Advocate. For the Respondents : Mr. Ashwani Kumar Sharma, Advocate. Kuldip Singh, Judge. This appeal has been directed against the judgement, decree dated 4.6.1998 passed by learned Additional District Judge, Mandi in Civil Appeal No. 93 of 1995 reversing the judgement, decree dated 15.6.1991 passed by learned Sub Judge Ist Class, Court No.III, Mandi in Civil Suit No. 48 of 1989, wherein the suit of the appellants for declaration and possession was decreed. 2. The appellants had filed suit for declaration and possession of property, more specifically detailed in the judgement of the trial court. The further case of the appellants is that suit land was owned by Bahadur Singh to the extent of half share, who was the husband of appellant No. 1. The appellant No.2 was born from the Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… union of appellant No. 1 and Bahadur Singh, thus the appellants are the only heirs of Bahadur Singh, who had died on 13.6.1986. The appellants are entitled to inherit the share of Bahadur Singh to the exclusion of respondents, who have no right, title or interest in the suit land. Bahadur Singh for two years remained confined to bed, he never executed any will in favour of the respondents of his freewill as he was not in sound disposing mind due to prolonged illness. The respondents are claiming possession on the basis of forged will dated 1.5.1985 purported to have been executed by Bahadur Singh in their favour. The respondents in the third week of June 1986 had forcibly entered upon the suit land and took possession and deprived the appellants of possessing the suit land in their right as legal heirs of deceased Bahadur Singh. The respondents managed to get mutation No. 126 dated 24.1.1987 of village Sadyana, mutation No. 139 dated 28.2.1988 of village Manthala, mutation No. 87 dated 18.2.1988 of village Fatehwahan of inheritance of the estate of Bahadur Singh sanctioned in their favour. It has been alleged that the said mutations are void and liable to be set-aside, as the said mutations are based upon forged will. On these grounds, the suit was filed by the appellants. 3. The respondents contested the suit by filing joint written statement. They have taken preliminary objections with respect to maintainability, non-joinder, mis-joinder of necessary parties, locus- standi, court fee and jurisdiction. On merits, it was pleaded that appellant No. 1 is not the widow and appellant No. 2 is not the daughter of deceased Bahadur Singh. It was pleaded by …3… respondents that they are the heirs of deceased Bahadur Singh and Smt. Fagni Devi is his widow. The appellants are not entitled to inherit any property of deceased Bahadur Singh. It was pleaded that Bahadur Singh had executed a registered will in favour of respondents on 1.5.1985 bequeathing his entire self acquired property in favour of respondents. Bahadur Singh had died on 11.6.1986. At the time of execution of will Bahadur Singh was in sound disposing mind. It was denied that will dated 1.5.1985 was forged. The appellants were never in possession of the suit land. The appellant No. 1 has three daughters and one son namely Sharda appellant No. 2, Smt. Kalpana Kumari, Kumari Sapna and Neel Gagan, who are born to appellant No. 1 with her alliance with Sagar Dutt with whom appellant No. 1 had been residing as his wife. The appellants have concealed these facts. In replication, the appellants have denied the case of the respondents set up by them in the written statement and reasserted their case as set out in the plaint. On the pleadings of the parties, the following issues were framed: - 1. Whether the suit is not maintainable in the present form? OPD. 2. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD. 3. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 4. Whether the plaintiffs have no locus standi to file the present suit? OPD. 5. Whether the suit is barred by limitation? OPD. 6. Whether deceased Bhadar Singh has executed a valid will dated 1.5.85 in favour of the defendants? If so its effect? OPD. 6(a) Whether the property bequeathed by deceased Bhadar Sigh was his self-acquired property? OPD. …4… 7. If issue No. 6 is not proved, whether the plaintiffs are entitled to inherit the property of deceased Bhadar Singh as alleged? OPD. 8. Whether the plaintiff No. 1 is not the wife of deceased Bhadar Singh and plaintiff No. 2 is not the daughter of deceased Bhadar Singh and the defendants alongwith four daughters and Smt. Fagni Devi wife of deceased Bhadar Singh are the only legal heirs of deceased Bhadar Singh? OPD. 9. Relief. The trial court had answered issues No. 1 to 6 and 8 in negative, issues No. 6 (a) and 7 in affirmative and decreed the suit on 15.6.1991. In appeal on 4.6.1998 the learned Additional District Judge had set-aside the judgement, decree dated 15.6.1991 and dismissed the suit. The second appeal has been admitted on the following substantial question of law:- Whether the Courts below have correctly read and appreciated the oral and documentary evidence on record to come to conclusion that the will Ext. DW 2/A is a legal and valid will in favour of the respondents. 4. Heard the perused the record. Mr. G.D.Verma, Senior Advocate, learned counsel for the appellants has submitted that the courts below have not correctly read and appreciated the oral and documentary evidence on record in coming to the conclusion that will Ex. DW 2/A was validly executed in favour of the respondents. He has submitted that will is shrouded by suspicious circumstances and its execution has not been proved. The appellants are the widow and daughter of deceased Bahadur Singh, therefore, they are entitled to inherit his property to the exclusion of respondents. …5… 5. Mr. Ashwani Kumar Sharma, learned counsel for the respondents has submitted that the substantial question of law framed in the appeal is confined to execution of the will Ex. DW 2/A. The learned lower appellate court in the impugned judgement has specifically recorded a finding that the appellant No. 1 could not be considered as legally wedded wife of Bahadur Singh. On the basis of available evidence on record, the learned Sub Judge had erred in treating appellant No. 1 as widow of Bahadur Singh. In the impugned judgement, it was further held that appellant No. 2 had also failed to prove her relationship with Bahadur Singh. In the teeth of these findings, the appellants have no locus-standi to challenge the execution of will Ex. DW 2/A of Bahadur Singh in favour of respondents. 6. The learned counsel for the appellants faced with this situation has submitted that under proviso to Section 100 of the Code of Civil Procedure, this court has power to hear appeal on any other substantial question of law not formulated. The learned Senior Advocate has submitted that even if substantial question of law covering the relationship of appellants with deceased Bahadur Singh has not been framed, this court is competent to hear the appeal on such question. 7. Order 42 Rule 2 of the Code of Civil Procedure, provides that court shall formulate substantial question of law as required by Section 100 and in doing so, the court may direct that second appeal will be heard on the question so formulated and it shall not be open to the appellant to urge any ground in appeal without the leave of the …6… court, given in accordance with Section 100. The proviso to sub- section (5) of Section 100 C.P.C. provides that nothing in this sub- section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. 8. The combined reading of sub-rule 2 of order 42 and proviso to sub-section 5 of Section 100 makes it clear that leave of the court is required for the appellant to urge on any other substantial question of law not formulated by the court and such leave is to be granted for the reasons to be recorded. The requirement of law is not to permit the appellant to urge on any other substantial question of law not framed during the course of hearing as a matter of course but to grant leave to appellant to hear on additional substantial question of law only after recording reasons. The purpose appears to be dual (i) for the court to consider whether in fact any other substantial question of law arises for hearing, and (ii) to give opportunity to the respondent to prepare on additional substantial question of law and not to take him by surprise. 9. No doubt, power of the court to hear on the additional substantial question of law is there, but the appellant has not sought any leave of this court to urge on another substantial question of law, which was not framed earlier. This being the position, the submission of learned counsel for the appellants that this court should hear the appeal on any other substantial question of law, not actually formulated, is rejected. …7… 10. The case of the appellants is that appellant No. 1 is the widow of Bahadur Singh and appellant No. 2 is the daughter of Bahadur Singh from appellant No.1 and, therefore, they are entitled to inherit the estate of Bahadur Singh after his death. The second limb of their case is that will Ex. DW 2/A is a forged and fictitious document prepared by the respondents, Ex. DW 2/A is not the will of Bahadur Singh. 11. The learned Additional District Judge has recorded a finding of fact that appellant No. 1 is not the widow of deceased Bahadur Singh nor appellant No. 2 has proved her relationship with Bahadur Singh. In Ex. DX voter list, Municipal Committee, Mandi 1990 at Serial No. 697 in House No. 147 Krishna Devi has been recorded as wife of Sagar Dutt, at Serial No. 698 in house No. 147 Kalpana is recorded as daughter of Sagar Dutt and at Sr. No. 699 in House No. 147 Neel Gagan is recorded as son of Sagar Dutt. Ex.RX is the certified copy of award dated 16.6.1992 passed by Motor Accident Claims Tribunal, Kullu in Claim Petition No.12 of 1990. In Ex.RX, Neel Gagan, Kumari Kalpana, Kumari Sapna children of Sagar Dutt are the claimants and they had claimed Rs.3,00,000/- compensation on account of death of Sagar Dutt. Ex. A-1 is the statement of Neel Gagan in Claim Petition No.12 of 1990 wherein he has stated that the name of his mother is Smt. Krishna Devi, he has two sisters namely Kalpana and Sapna. The claim petition was dismissed for want of proof of relationship of claimants with the deceased, but that is a different matter. This evidence has been considered by learned Addl. District Judge in …8… para-20 of the impugned judgment. The appellants have miserably failed to show their relationship with deceased Bahadur Singh. Thus appellants have failed to prove that they are the heirs of Bahadur Singh. 12. There is substance in the submission of the learned counsel for the respondents that the appellants are strangers to the estate of Bahadur Singh. They have no locus-standi to challenge the will Ex. DW 2/A executed by Bahadur Singh in favour of respondents. The learned lower appellate court has otherwise recorded a finding of fact that will Ex. DW 2/A was executed by deceased Bahadur Singh in favour of respondents. The appellants are not the heirs of Bahadur Singh, therefore, they have no right to challenge the will Ex. DW 2/A, hence, substantial question of law referred above is decided against the appellants. 13. No other point was urged. 14. As a result of above discussion, the appeal fails and is accordingly dismissed. May 25, 2009. ( Kuldip Singh ) (Hem) Judge.