IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Appeal From Order No. 653 of 2006 Brij Mohan Uniyal …Appellant Versus Chhaviram Semwal & another ... Respondents Sri B.P. Nautiyal, Advocate for appellant Sri Rajendra Dobhal, Advocate for respondents Dated: July 22, 2008 Hon’ble B.C. Kandpal, J. This appeal, under Section 384 of Indian Succession Act, 1925, has been preferred by the appellant against the judgment and order dated 16.10.2006 passed by District Judge, Uttarkashi, in Misc. Case No. 17 of 2004. Brief facts of the case are that deceased-Smt. Poorna Devi was the daughter of Chhaviram. She was married with Brij Mohan Uniyal, but she had deserted him and also dissolved her marriage before Panches of the village. Thereafter, Brij Mohan Uniyal re-married with some other lady and he has children with her. Smt. Poorna Devi (deceased) was employed as Class IV employee in District Gramya Vikas Adhikaran, Uttarkashi. She died on 8.3.2001 leaving behind her a number of Kisan Vikas Patra, R.D. Depsoits, F.D.R. etc. amounting to Rs.2,43,351/-. She has also executed a Will in favour of Chhaviram (father) and Dinesh Semwal (nephew) as her legal heirs to get her self-earned property left behind by her. 2 The applicant-Chhaviram, father of deceased filed a succession case before District Judge, Uttarkashi to issue a succession certificate in his favour for the property left by his daughter-Smt. Poorna Devi (deceased). On the basis of Will, applicant-Chhaviram also made opposite party Dinesh Semwal (nephew of deceased) in whose favour also the deceased made the Will, deserted husband of Smt. Poorna Devi (deceased)-Brij Mohan Uniyal and other relatives. Dinesh Semwal did not file any objection for issue of succession certificate in favour of Chhaviram, but opposite party no. 2- Brij Mohan Uniyal has raised an objection that the Will is forged one. Opposite party-Brij Mohan Uniyal has alleged that as Smt. Poorna Devi (deceased) did not give birth to any child, he got re-married with another lady with the consent of deceased-Smt. Poorna Devi. He further alleged that household goods and Fixed Deposit Receipts, cash etc. were taken away by her father after the death of Smt. Poorna Devi (deceased). He further alleged that earlier case No. 11/2001 was filed by Chhaviram, in which paper no. 45-C, the forged Will, was produced and when he raised objection, the applicant- Chhaviram filed an application dated 8.8.2003 before the court below for withdrawal of the said case and the court vide order dated 27.5.2004 accorded sanction for filing of the fresh case. He also alleged that no divorce has ever taken place between Smt. Poorna Devi (deceased) and him and he is legally entitled to get succession certificate pertaining to the property of his wife-Smt. Poorna Devi (deceased). He also alleged that the present succession case is not maintainable, as the earlier 3 case filed by same applicant has been disposed of as withdrawn. Thereafter, parties led oral as well as documentary evidence in support of their claims. The learned District Judge on considering the evidence available on record and hearing learned counsel for the parties, allowed the petition and issued succession certificate in favour of applicant- Chhaviram Semwal pertaining to money/assets left by Smt. Poorna Devi (deceased) as mentioned in the succession certificate, vide impugned judgment and order dated 16.10.2006. Feeling aggrieved by the aforesaid impugned judgment and order, the appellant-Brij Mohan Uniyal has filed this appeal before this Court. Heard Sri B.P. Nautiyal, learned counsel for appellant, Sri Rajendra Dobhal, learned counsel for respondents and perused the record. After having gone through the record and hearing learned counsel for the parties, I do not find any force in this appeal. Admittedly, the assets and money left by Smt. Poorna Devi (deceased) was self-earned money by her and she was free to devolve that money to anyone to which she wanted to give or she can execute a Will pertaining to the said property. The objection of Brij Mohan Uniyal is that Will was forged one and according to him the Will was not a registered document and it has not been proved properly. 4 Learned counsel for appellant has submitted that the Will has not been proved by two or more attesting witnesses, therefore, reliance could not have been placed on such a Will. In support of his contention, learned counsel for the appellant has cited before me a decision rendered by the Hon’ble Apex Court in the case Janki Narayan Bhoir vs. Narayan Namdeo Kadam, reported in 2003 AIR SCW 177. I have gone through the above-cited case. The Hon’ble Apex Court has made a observation that if one attesting witness is able to prove the execution of the Will, examination of other attesting witness can be dispensed with. Therefore, I am of the view that facts and circumstances in above cited case are absolutely different and do not apply to the facts and circumstances of the present case. The record reveals that PW-2 Jagat Singh Chauhan is the scribe/attesting witness of the Will. He has specifically stated that this Will (paper no. 7-C) was got scribed by Smt. Poorna Devi in favour of Chhaviram from him and he also made his signature on the said Will. He further stated that another attesting witness of the Will was Sri M.M. Dobhal. As PW-2 Jagat Singh Chauhan has proved the Will, therefore, the examination of another attesting witness was dispensed with and hence the contention raised by learned counsel for the appellant has no force. The learned District Judge has rightly held that applicant-Chhaviram is entitled to get succession certificate for the property and assets left by deceased-Smt. Poorna Devi. 5 Learned counsel for the appellant has raised the argument that applicant-Chhaviram has also moved Case No. 11/2001 for issue of succession certificate. In that case the appellant-Brij Mohan Uniyal filed counter claim. On 23.11.2002, the applicant-Chhaviram presented a forged Will in that case. Against that Will, the appellant-Brij Mohan Uniyal raised objection, therefore, on 8.8.2003 the applicant-Chhaviram moved application for withdrawal of the said case and the court vide order dated 27.5.2004 permitted the applicant-Chhaviram to file fresh case. Thereafter, the present succession case was filed. Learned counsel has submitted that earlier case is res judicata to the present case under Section 11 of the C.P.C. On the other hand, learned counsel for respondents contended that the earlier case was not finally adjudicated and it was simply withdrawn. In the cases of summary nature like succession case, decision would not bar any party to the said proceedings to raise the same issue in the subsequent proceedings. Learned counsel for respondents, in support of his contention, cited before me a decision of the Hon’ble Apex Court in the case Madhvi Amma Bhawani Amma and others vs. Kunjikutty Pillai Meenakshi Pillai and others, reported in (2000) 6 SCC 301. The record reveals that the court had not finally adjudicated the earlier case as it was withdrawn at a pre-mature stage, therefore, that application moved by applicant-Chhaviram was allowed with the permission to move the fresh case and in view of the aforesaid order applicant- 6 Chhaviram moved a fresh application which has been decided by the impugned order. As the proceedings in the case for issuance of succession certificate is summary in nature and the final adjudication is not made between the parties on merits, therefore, the principle of res judicata would not be applicable in my opinion. Further, the record reveals that execution of the Will had not been controverted from the side of opposite party-Brij Mohan Uniyal before the court below. In case, if Brij Mohan Uniyal has any objection with regard to authenticity of the Will, then it is open for him to file a suit for cancellation of Will. This matter cannot be agitated in the summary proceedings as to whether the Will is forged or fabricated. Once the court below was of the opinion that the Will was executed and the same has been proved by one of the attesting witnesses, namely, PW-2 Jagat Singh Chauhan, then there is no question of disbelieving the execution of the Will by the court below in the summary proceedings. To my mind, the court below has exercised its jurisdiction in a judicious manner and only after coming to the conclusion that the Will has been executed by Smt. Poorna Devi (deceased) in favour of Chhaviram, granted succession certificate with regard to property and assets left by Smt. Poorna Devi (deceased). I do not find any lacuna in the impugned order passed by the court below. In view of above, the appeal lacks merit and is liable to be dismissed. 7 Accordingly, the appeal is dismissed. The impugned judgment and order dated 16.10.2006 is confirmed. (B.C. Kandpal, J.) SP