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2003 DIGILAW 1150 (PNJ)

Surinder Kaur v. Mohinder Singh

2003-08-14

M.M.KUMAR

body2003
ORDER M.M. Kumar, J. - This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the testator Kishan Singh, father of the plaintiff-appellant executed a valid registered Will dated 15.4.1987 in favour of defendant-respondent. In the Will it is specifically recorded that the plaintiff-appellant the daughter of the testator is happily married and residing at her in-laws place. The Will has been found to be duly executed and it has been proved by examining DW1 Daljit Singh who scribed the Will and the marginal witness DW 3 Som Singh. Moreover, the plaintiff-appellant was not present at the time of last rites of her father, the testator, which fact goes a long way to show, that relationship of the plaintiff-appellant with her father, the testator were not that cordial. The Joint Sub Registrar vide endorsement Ex. D3 had issued a certificate that thumb impression and signature of the testator and the witnesses were appended in his presence which proves the due registration of the Will. 2. Shri Harsh Kinra, learned counsel for the plaintiff-appellant has argued that the property in the hands of Kishan Singh, the testator was ancestral- Joint Hindu Family property and no Will could have been executed in respect of such a property. Learned counsel has argued that the plaintiff-appellant would be entitled to equal share with her brother defendant-respondent being Class I legal heir and the Will is liable to be ignored. He has referred to the statement of defendants witnesses to show that there is an admission concerning the character of the suit land. 3. After hearing the learned counsel, I am of the considered view that this appeal is devoid of any merit and is liable to be dismissed because Ex. D1 Will dated 15.4.1987 has been proved as duly executed. The fact of registration of the Will has been proved as the Joint Sub Registrar had issued a certificate showing that the witnesses have appended their signatures in his presence and the thumb impression by the testator was also in his presence. There are findings of facts which do not call for interference under Section 100 of the Code. The fact of registration of the Will has been proved as the Joint Sub Registrar had issued a certificate showing that the witnesses have appended their signatures in his presence and the thumb impression by the testator was also in his presence. There are findings of facts which do not call for interference under Section 100 of the Code. It has been repeatedly held by the Supreme Court that under Section 100 of the Code, admission of appeal is permissible where the question of law or substantive question of law arises for consideration. No such question of law warranting admission of the appeal has been raised nor one arises. 4. The other argument of Mr. Kinra deserves to be rejected because no foundation with regard to the nature of the suit land has been laid in the plaint by taking the plea that nature of the property is ancestral. It is well settled that in the absence of pleadings of the parties, no issue could be framed, no evidence could be adduced and naturally there cannot be any finding. For the first time, the nature of the suit land is sought to be disputed before this Court. Therefore, such an argument cannot be permitted to be raised. For the reasons recorded above, this appeal fails and the same is dismissed. Appeal dismissed.