2017 Supreme(P&H) 1538

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMOL RATTAN SINGH, J.
Surender Kumar - Appellant
Vs.
Dr. Chander Mohan and another - Respondents
RSA No. 6237 of 2014 (O&M)
Decided On : 05-07-2017

Headnote:

WILL - EXECUTION - PROOF - SECONDARY EVIDENCE - CONDITIONS - POSSESSION OF ORIGINAL WILL - INFERENCE - MUTATION SANCTIONED ON BASIS OF WILL - JOINT BANK ACCOUNT - NON-CHALLENGE OF MUTATION - ADMISSION IN NOTICE - TESTIMONY OF HOUSE TAX CLERK - REBUTTAL OF PRESUMPTION - REQUIREMENTS OF SECTION 68 OF EVIDENCE ACT - ATTESTING WITNESS - DEATH - SON'S TESTIMONY - SECTION 69 OF EVIDENCE ACT - COMPLIANCE - ABSOLUTE ESTATE - SUBSEQUENT BEQUEATH - INVALIDITY - RATIO OF MAULESHWAR MANI'S CASE - MODIFICATION OF DECREES - 1/7TH SHARE IN ESTATE AND RENTAL INCOME.

Fact of the Case:

Plaintiff, brother of defendant no.1, filed a suit for declaration that he is the owner of the suit property to the extent of a 1/3rd share therein, on the basis of the will of their father dated 12.01.1983 and that after such declaration, he be given possession of his share of the suit property, by way of a partition thereof. The suit property is stated to be House no.2821, Iqbal Ganj Road, Sadar Bazar, Ambala Cantt. The second defendant in the suit was the 3rd brother of the plaintiff and the present appellant, with the said brother having taken a stand identical to that of the plaintiff. Hence, even the first appeal filed against the judgment and decree of the learned Civil Judge (Junior Division), Ambala, in favour of the plaintiff, was challenged only by the present appellant-defendant no.1, impleading the second defendant as respondent no.2 in that appeal, as also in the present second appeal.

Finding of the Court:

The court found that the certified copy of the will was obtained by the plaintiff from the proper source and was duly proved by him by way of secondary evidence. The record of the assessment register of the Municipal Council was also found to have been tendered in evidence, showing the property to be owned by the mother of the parties. Further inference against the appellant was taken by the first appellate Court upon him having found to have acknowledged the legal notice served upon him, issued by the plaintiff, vide the acknowledgement Ex.PW5/5, but him not having replied to refute the contents thereof. The factum of the hand writing of the scribe and the signatures of one of the attesting witnesses having been identified was also noticed by that Court, and on the aforesaid reasoning it was held that the will of 1983, relied upon by the plaintiff, had been correctly held to be proved by the learned trial Court.

Issues: 1. Whether the plaintiff is entitled to suit for declaration as prayed for? 2. Whether the suit of the plaintiff is bad for non-joinder of necessary parties? 3. Whether the suit is not maintainable in the present form?

Ratio Decidendi: The court held that the condition incorporated in the order of the trial Court dated 11.11.2010, while granting permission to lead secondary evidence on the will, was not fulfilled, except by the “bald statement” of the plaintiff and the second respondent-defendant, to the effect that the will was handed over to the appellant-defendant no.1. The court further held that the subsequent part of the will of Krishan Gopal, bequeathing the suit property to his three sons to the exclusion of the other heirs of his wife, is not a legally sound bequeathment and consequently, Smt. Vidya Wanti having been given an absolute estate by her husband in the suit property, he could not have thereafter put a condition in the will that after Smt. Vidya Wantis' death, if the property was alienated by her, it would devolve upon only his three sons to the exclusion of other legal heirs.

Final Decision: The appeal is partly allowed, to the extent that the judgments and decrees of learned Courts below are set aside to the extent that they grant the respondent-plaintiff a 1/3rd share in the suit property. Instead, the suit is decreed to the extent that the respondent-plaintiff is held entitled to a 1/7th share in the estate of Smt. Vidya Wanti, as bequeathed to her by her husband Krishan Gopal, to the extent that the estate remained with her at the time of her death. Therefore, as regards the rendition of accounts to be given by the appellant herein, to the respondent-plaintiff, such rendition of accounts would be given, but again upon finalization thereof, a 1/7th share in the rental income of the suit property would vest in the respondent-plaintiff and not a 1/3rd share therein. Consequently, the judgments and decrees of the Courts below are modified to the aforesaid extent, with the parties left to bear their own costs in the present appeal.