A
B
PARSINI (DEAD) THROUGH LRS.
v.
ATMA RAM AND ORS.
FEBRUARY 22, 1996
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.)
Will-Genuineness of-Daughter laying claim over the property of
fathe1~T1ial court and appellate court denying the relief upholding the
genuineness of the will-In High Cowt Single Judge setting aside the jitdgment
C and granting the decree-Divisio11 Be11ch rest01i11g the decree of the trial
cou~enuineness of will-Consideling all the facts a11d circumstances trial
cowt a11d appellate cowt recording a fi11ding-Si11gle Judge not right i11
reversing the finding off act-Division Bench had 1ightly gone into the question
within the param~ters of law-No inte.1ference wmra_nted.
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1608 of
1979.
From the Judgment and Order dated 2.4.79 of the Punjab & Haryana
High Court in L.P.A. No. 521of1975.
E
E.R. Kumar for P.H. Parekh for the Appellants
Ms. S. Janani for the Respondents.
The following order of the Court was delivered :
F
This appeal by special leave arises from the judgment dated April 2,
1979 of the Punjab & Haryana High Court in L.P.A. No. 521 of 1975. The
Division Bench of the High Court has gone into the genuineness of the
Will executed by Bhagwana on October 15, 1957. Bhagwana died on
September 2, 1958. The appellant laid claim over the property of her father.
G The trial Court and the appellate Court upheld the Will and denied the
relief. Learned single Judge in Second Appeal No. 451 of 1972 by order
dated September 16, 1975 set aside the judgment and granted the decree.
In the Letters Patent Appeal the Division Bench restored the decree of
the trial Court dismissing the suit. Thus, this appeal by special leave.
H
Learned counsel for the appellant, after elaborate preparation of the
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P ARSINI v. A1MA RAM
983
facts, though of complicated nature, has contended that in the first litiga-
A
tion between the collaterals the appellant, the appellant was not a party.
The courts below, having held that there is no proof of collateralship, ought
not to have gone into the genuineness of the Will and record a finding in
that behalf. Even otherwise, the finding does not find the appellant a party
to the earlier suit. In this suit, admittedly, however, the Will was not
produced and one of the testators was not examined. Learned single Judge
of the High- Court found that the execution of the Will was shrouded with
suspicious circumstances.
B
The burden is on the propounder of the Will to remove all the doubts
regarding the genuineness of the Will and, therefore, the Division Bench, C
the trial Court as also the appellate Court were not right in cognising the
Will. Having considered the contention with reference to the evidence on
record and the findings recorded by the Division Bench and also the trial
Court and the appellate Court, we are of the view that the view taken by
the Division Bench cannot be said to be unwarranted. It is the case of the
respondents that the Will was lost. Consequently, permission was given to D
lead secondary evidence and on the basis thereof, secondary evidence was
laid by the parties and the witnesses were examined in proof of the Will
and in rebuttal thereof. The trial court and the appellate Court have
considered all the facts and circumstances and have recorded a finding that
the Will was executed by Bhagwana in favour of Atma Ram respondent E
No. 1.
On a finding of fact, though the learned single Judge could go into
the question of law, he confined his consideration in a second appeal under
a limited parameter. It would appear that the learned single Judge
trenched as if he was the first appellate court and considered the evidence F
by himself and came to the conclusion that the genuineness of the Will had
not been proved. The Division Bench, therefore, has rightly gone into the
question within the parameters of law and held that the learned single
Judge was no_t right in reversing the finding of fact recorded by the trial
Cour~ and the appellate Court. Thus, we consider that there is no substan- G
tial question of law warranting interference.
The appeal is accordingly dismissed.
G.N.
Appeal dismissed.
H
Lex