R.S.A. No. 3260 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3260 of 2010 (O&M) Date of decision : 18.8.2010 ... Smt. Ram Kalan ................Appellant vs. Kartar Singh and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. J.V. Yadav, Advocate for the appellant ... K.C. Puri, J. There is a delay of 97 days in re-filing the present appeal. The same stands condoned on the grounds mentioned in the application. This is regular second appeal directed by LR of Ghisa Ram against judgment dated 9.11.2009 passed by Sh. D.S. Sheoran, Additional District Judge, Narnaul, vide which the appeal preferred by the plaintiff against the judgment dated 12.9.2007 passed by Sh. D.N. Bhardwaj, Additional Civil Judge (Senior Division), Mohindergarh, was dismissed. R.S.A. No. 3260 of 2010 -2- Challenge of Ghisa Ram, the original plaintiff, is in respect of decree dated 12.6.1991 in civil suit titled as Gindori vs. Nanag and registered Will dated 16.3.1998 in favour of defendants No. 1 to 3. It is alleged that plaintiff constituted Joint Hindu Family with Nanag and being closest collateral is entitled to inherit the property. The mental faculties of Nanag were not in order for the last about 10 years and as such he was not in a disposing mind to suffer the decree dated 12.6.1991 and execute the will dated 16.3.1998. Upon notice, defendants No. 1 to 4 filed joint written statement taking preliminary objections regarding maintainability, cause of action, locus standi, limitation, estoppel etc. On merits, it is alleged that plaintiff has given incomplete pedigree table and has no concern with the property in dispute and Nanag used to reside with the defendants and used to serve him. His last rites were performed by them. Nanag suffered a decree dated 12.6.1991 and he also executed a Will dated 16.3.1998 in favour of defendants No. 1 to 3, voluntarily. Defendant No.5 filed separate written statement pleading the Will and decree referred to above. The plaintiff filed replication controverting the allegations of the written statement and reiterating the stand taken in the plaint. From the pleadings of the parties, following issues were framed:- 1. Whether Will No. 326 dated 16.3.1998 and mutation No.1035 passed on said Will and judgment and decree dated 12.6.1991 passed by ld. Sub Judge Ist Class, Mohindergarh in civil suit titled Nanag Ram vs. Smt. R.S.A. No. 3260 of 2010 -3- Gidnori and mutation No. 993 passed on said judgment and decree are illegal, null and void and based on misrepresentation of the facts mala fide and fraud? If so its effect? OPP 2. Whether the defendant No.5 has violated the court order and is liable to be punished under Order 39 Rule 2A CPC? OPP. 3. Whether the suit is time barred? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiff has no locus standi to file the present suit? OPD 6. Whether the plaintiff has no cause of action to file the present suit? OPD 7. Whether the plaintiff is estopped from filing the suit due to his act and conduct? OPD 8. Whether the defendants are entitled to special cost under Section 35 A CPC? OPD 9. Relief. Learned trial Court after appraisal of the evidence, decided the issue of Will and decree, in favour of defendants. The issue of violation of the Court order under Order 39 Rule 2 A CPC, was also decided against the plaintiff. Consequently, the suit of the plaintiff was dismissed. Feeling dissatisfied with the above said judgment dated 12.9.2007, passed by Sh. D.N. Bhardwaj, Additional Civil Judge R.S.A. No. 3260 of 2010 -4- (Senior Division), Mohindergarh, the LRs of plaintiff Ghisa Ram filed the Ist Appeal. The said appeal was dismissed by Sh. D.S. Sheoran, Additional District Judge, Narnaul, vide judgment dated 9.11.2009. Feeling dissatisfied with the judgments dated 9.11.2009 and 12.9.2007, referred to above, the LR of Ghisa Ram has filed the present regular second appeal. The appellant in paragraph No. 11 of the grounds of appeal, has mentioned that following substantial questions of law have arisen in the present appeal:- i) Whether decree dated 12.6.1991 can be relied upon being not registered as per the provisions of Section 17 of the Registration Act? ii)Whether the impugned judgment/decree has been passed by learned Courts below by misreading and misconstruing the evidence in respect of Will dated 16.3.1998 by Nanag in favour of respondents/defendants No. 1 to 3? iii)Whether the issue No.1 has been wrongly framed and onus wrongly placed upon plaintiff, whereas it should have been on the respondents/defendants, who are the propounder of the Will? Learned counsel for the appellant has submitted that onus of the issue of Will was wrongly placed upon the plaintiff. It is always the propounder of the Will that has to prove the Will. The decree in favour of defendant No.5 being unregistered cannot be given effect. Both the Courts below have misread and misconstrued the evidence R.S.A. No. 3260 of 2010 -5- regarding the Will dated 16.3.1998 by Nanag in favour of defendants No. 1 to 3. I have carefully considered the submissions made by counsel for the appellant and also have gone through the record of the case. The Ist Appellate Court has returned a finding that decree does not require registration as it has simply accelerated the inheritance of Nanag. So, in these circumstances, the decree dated 12.6.1991 does not require registration. So far as the submission that onus of issue of Will has wrongly been placed on the plaintiff, is concerned, this aspect of the case has already been dealt with by the Ist Appellate Court. In the civil case, the onus of issue is immaterial. There is concurrent finding of fact recorded by both the Courts below that registered Will dated 16.3.1998 by Nanag in favour of defendants No.1 to 3 stands proved on the file. It has been further observed by both the Courts below that Nanag was in sound disposing mind and was capable of executing the Will. So, that being a finding of fact cannot be challenged in the second appeal. The Will in question is otherwise duly proved by examining marginal witnesses. There is nothing on the file that both the Courts below have misread and misconstrued the evidence on the file. So, in view of the above discussion, I have no hesitation in holding that no question of law, much less the substantial question of law has arisen in the present appeal. The question of fact regarding the execution of Will and decree by Nanag has been upheld by both the Courts below and as such no ground for interference in the second R.S.A. No. 3260 of 2010 -6- appeal is made out. Consequently, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 18.8.2010 Judge chugh