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2018 Supreme(P&H) 4443
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
K. Pooja Dodd - Appellant
Versus
Devinder Singh Dodd - Respondent
RSA No. 1495 and 2739 of 2012 (O&M)
Decided On : 20-09-2018
Mr. Puneet Jindal, Sr. Advocate with Mr. Varun Goyal, Advocate, for the Appellant (In RSA No.2739 of 2012); Mr. Animesh Sharma, Advocate, for the Appellant(In RSA No.1495 of 2012); Mr. Ashish Kapoor, Advocate, for the Respondent
The main legal point established in the judgment is the admissibility and proof of testaments under the Indian Evidence Act.
Headnote:
Testament - Property Dispute - Indian Evidence Act, 1872, Section 69, Section 68 - The court discussed the testament executed by Late Smt. Lajwant Kaur in favor of her husband dated 17.03.1979 and the testament dated 07.12.1998 executed by Gurbaksh Singh. The court found that the testament of Lajwant Kaur was attested by two witnesses and was proved in accordance with the Indian Evidence Act. The testament of Gurbaksh Singh was also proved in accordance with the provisions of section 68 of the Indian Evidence Act.
Fact of the Case:
The plaintiff filed a suit for declaration of ownership of a property based on a registered Testament executed by his father. The defendants contested the suit, claiming that the property belonged to their mother.
Finding of the Court:
The court found that both testaments, one executed by the mother and the other by the father, had been proved in accordance with the law.
Issues: The main issue was the ownership of the property based on the conflicting claims of the plaintiff and the defendants.
Ratio Decidendi: The court held that the testaments were proved in accordance with the Indian Evidence Act, and there was no ground to interfere.
Final Decision: Both the Regular Second Appeals were dismissed, and all pending miscellaneous applications were disposed of.
JUDGMENT
Anil Kshetarpal, J.(Oral) - By this common judgment, two second appeals bearing RSA Nos.1495 and 2739 of 2012, shall stand disposed of, as both are arising from a single suit and issues which needs determination are same.
2. The plaintiff-respondent Devinder Singh filed a suit for declaration that he is owner in possession of the premises No.326, Model Town, Jalandhar City on the basis of the registered Testament dated 07.12.1998 executed by his father Sardar Sahib Gurbaksh Singh, who died on 17.09.2001.
3. The defendants, who are also children of late Sh. Gurbaksh Singh contested the suit and pleaded that Gurbaksh Singh was not the owner of the property, rather, it was mother of the parties i.e., Lajwant Kaur who was owner of the property in dispute.
4. In replication, the plaintiff pleaded that Lajwant Kaur who died on 16.11.1979 had executed a Testament in favour of her husband Gurbaksh Singh on 17.03.1979.
5. It is unfortunate that in spite of repeated observations made by the Court, the Courts do not frame proper issues as required under Order 14 of the Civil Procedure Code. Order 14 of the Civil Procedure Code provides that issues are required to be of two kind, first, issues of fact and second, issues of law. Each material proposition affirmed by one party and denied by another, shall form the subject matter of the distinct issue. However, subordinate Courts are overholding the mandate of law as provided in the Civil Procedure Code.
6. Both the Courts after examining the evidence, have concurrently recorded a finding of fact that the testament executed by Late Smt. Lajwant Kaur in favour of her husband dated 17.03.1979 as also the testament dated 07.12.1998 executed by Gurbaksh Singh, have been proved in accordance with law.
7. Learned counsel for the appellants has submitted that the testament dated 17.03.1979 is not part of the pleadings and, therefore, the Court could not have gone into the aforesaid issue. He submitted that for the first time in the replication, the Testament dated 17.03.1979 was putforth and pleaded and the defendants did not get an opportunity to rebut the aforesaid pleadings. He further submitted that no evidence has been led to prove that the signatures of Smt. Lajwant Kaur exist on the Testament dated 17.03.1979 Ex.P3. Hence, he submitted that there is non compliance of second part of section 69 of the Indian Evidence Act, 1872.
8. On the other hand, learned counsel for the plaintiffs respondents has pointed out that Devinder Singh, plaintiff when appeared in the evidence, has identified the signatures of late Smt. Lajwant Kaur, her mother on the testament. He while drawing attention of the Court to the cross-examination, has submitted that but for bald suggestion, the defendants did not cross-examine the plaintiff on this aspect. He further submitted that since the plaintiff was not knowing that the defendants would be even disputing the ownership of their father, therefore, the plaintiff filed a suit claiming the property from the father on the basis of testamentary succession but since the objection was raised with regard to the ownership of the father, therefore, in replication, the plaintiff had to setup and plead the Testament executed by Late Smt. Lajwant Kaur.
9. This Court has heard the learned counsel for the parties at length and with their able assistance gone through the judgments passed by both the Courts below and the record.
10. As regards the lack of pleadings, it may be noted that although strictly speaking replication is not part of the pleadings, however, there is no bar in filing the additional pleadings. In the present case, the replication can be treated as part of additional pleadings. The defendants could also file a response thereto with leave of the Court which has not been done. Still further, before framing of the issues, the parties were alive to the dispute involved in the present case. Hence, the replication, in the facts of the present case, cannot be he
