RSA No. 315 of 2002. Case: Smt. Paramjeet Kaur Wife of Shri Om Parkash, resident of Village Bhatanwalai, Kishanpur, Tehsil Paonta Sahib, District Sirmour, H.P. Vs Khillo Wife of Tirath Ram, daughter of late Shri Ganga Ram, resident of Village Rampur Bharapur, Tehsil Paonta Sahib, District Sirmour, H.P.. Himachal Pradesh High Court
| Case Number | RSA No. 315 of 2002 |
| Counsel | For Appellant: Ms Jyotsna Rewal Dua, Advocate and For Respondents: Mr. Karan Singh Kanwar, Advocate |
| Judges | Sanjay Karol, J. |
| Issue | Code of Civil Procedure, 1908 - Section 100; Indian Evidence Act, 1872 - Section 68; Indian Succession Act, 1925 - Section 63; Transfer of Property Act, 1882 - Section 3 |
| Citation | 2012 (2) ShimLC 869 |
| Judgement Date | March 20, 2012 |
| Court | Himachal Pradesh High Court |
Judgment:
Sanjay Karol, J.
1. This is defendant's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiff Smt. Khillo filed Civil Suit No. 96/1 of 2000, titled Smt. Khillo versus Smt.Maro, for declaration and possession, with respect to the suit land against defendant Smt. Maro, her real sister. The same was decreed by the Court of Sub Judge 1st Class, Court No. 1, Paonta Sahib, District Sirmour, in terms of judgment and decree dated 17th September, 2001. In the defendant's Civil Appeal No. 17-N/13 of 2001, titled Smt. Maro versus Smt. Khillo, learned District Judge, Sirmour at Nahan, has affirmed the judgment and decree, vide its judgment and decree dated 15th June, 2002. The present appeal stands admitted on the following substantial questions of law:
1. What is the effect of the statements of the witnesses which are shown to have been made without oath?
2. Whether there has been misreading and mis-appreciation of evidence in the present case?
3. Whether the suit of the plaintiff was barred by time?
2. I have heard Ms Jyotsna Rewal Dua, learned counsel for defendant-appellant, Mr. Karan Singh Kanwar, learned counsel for plaintiff-respondent and perused the record. Learned counsel have relied upon decisions rendered by various Courts, including the Apex Court.
Ms Jyotsna Rewal Dua has referred to the following decisions:
1. Naresh Charan Das Gupta versus Paresh Charan Das Gupta and another, AIR 1955 SC 363.
2. Ram Lal versus Hari Kishan, AIR 1988 Delhi 73.
3. Damodhar Bordoloi versus Mrinalini Devi Trust Board and others, AIR 1999 Gau 53.
Whereas, Mr. Karan Singh Kanwar has referred to the following decisions:
1. Lalitaben Jayantilal Popal versus Pragnaben Jamnadas Kataria and others, (2008) 15 SCC 365.
2. Yumnam Ongbi Tampha Ibema Devi versus Yumnam Joykumar Singh and others, (2009) 4 SCC 780.
3. Gopal Swaroop versus Krishna Murari Mangal and others, (2010) 14 SCC 266.
3. Learned counsel for the parties agree that only substantial question of law No. 2 arises for consideration in the instant appeal. While elucidating this substantial question of law, learned counsel addressed only on the issue of due attestation of the Will as required in law.
4. The moot point, therefore, for consideration is as to whether there is full and substantial compliance of provisions of Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act), Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) and Section 3 of the Transfer of Property Act, 1882 (hereinafter referred to as the Transfer of Property Act).
5. Facts are not much in dispute. Plaintiff and defendant are real sisters, born from Shri Ganga Ram, who expired on 11th January, 1996. Allegedly said Shri Ganga Ram left a registered Will dated 20th December, 1988 in favour of defendant Smt. Maro which was propounded in the year 2000. Aggrieved thereof, on 25th August, 2000, plaintiff Smt. Khillo instituted a suit for declaration to the effect that the said Will is invalid and she is entitled to half share in the estate of late Shri Ganga Ram. She also claimed possession to the extent of her share.
6. Defendant Smt. Maro resisted the suit, inter alia, on the ground that she and her husband lived with Shri Ganga Ram, who had accepted her husband as a "Ghar Jamai". Since they were looking after Shri Ganga Ram, out of love and affection in a sound disposing state of mind, he willed the property exclusively in her favour, excluding the plaintiff who was otherwise well settled and compensated.
7. Based on the pleadings of the parties, trial Court framed the following issues:
1. Whether plaintiff is entitled for declaration sought for? OPP
2. Whether deceased Ganga Ram executed a valid Will in a sound disposing state of mind. If so, its effect? OPD
3. Whether Will dated 20.12.1988 is a forged and fraudulent document? OPP
4. To what relief the plaintiff is entitled? OPP
5. Relief.
8. Trial Court rejected the Will on the ground that the defendant had failed to establish due compliance of provisions of Section 63 of the Succession Act. Significantly, trial Court did not find that the Will was shrouded by suspicious circumstances or that it was an act of misrepresentation, fraud or forgery or that the testator was not of sound disposing state of mind.
9. Lower Appellate Court rejected the Will primarily on the ground that the defendant had failed to establish due "attestation" of the Will, in accordance with the provisions of the Succession Act and the Evidence Act.
10. The Court below did not deal with the question of the Will being shrouded by suspicious circumstances and the soundness of the mind of the testator. Consequently, the only question, which needs consideration is as to whether the Courts below erred in correctly/completely reading and appreciating the evidence led by the parties.
11. Principles with regard to the exercise of jurisdiction by the High Court, under Section 100 Code of Civil Procedure, 1908 are now well settled.
12. The Apex Court in Hari Singh vs. Kanhaiya Lal (1999) 7 SCC 228, has held that "the jurisdiction of courts in first appeals, second appeals or revisions are all to the extent conferred by the legislature. No litigant possesses any natural or inherent right to appeal against any order, unless a statute confers it and it is to the extent it is conferred. Thus the area of challenge is also hedged by the legislature. Hence challenge to the impugned order has to be confined with such limitation.
13. The word 'substantial' as qualifying question of law has been clarified by the Apex Court in Gurdev Kaur vs. Kaki, (2007) 1 SCC 546 to mean "having substance, essential, real, of sound worth, important or considerable." It is further held that "even if the first appellate Court commits an error in...
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