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2004 DIGILAW 198 (HP)

Kali Dass v. Ram Singh

2004-08-19

K.C.SOOD

body2004
JUDGMENT : K.C. Sood, J. This second appeal arises out of the judgment and decree of the learned District Judge, Kangra at Dharamshala, dated 6th October, 2003. 2. The question raised in this appeal is about the validity of the Will, alleged to have been executed by Rattan Chand predecessor-in-interest of the parties. Respondent Ram Singh had set up a Will, executed by Rattan Chand on 6th December, 1996, which was registered on the same date. Both the courts concurrently found the Will dated 6th December, 1996 to be genuine and validly executed by Rattan Chand. The Will dated 7th December, 1996, set up by the appellants-plaintiffs Kali Dass and others was rejected, as it was shrouded by suspicious circumstances. 3. It appears, Kali Dass and others filed a Civil suit No. 107,2K/97 on 10th March, 1997, claiming that the Will dated 6th December, 1996, executed by late Rattan Chand, stood revoked by a subsequent Will on the next date i.e. 7th December, 1996. The learned trial court by its judgment dated 15th November, 2001 held that the Will dated 7th December, 1996 was not a valid Will, as it was shrouded by suspicious circumstances whereas the Will dated 6th December, 1996 was a valid Will. 4. It transpires that another suit filed by Ram Singh, respondent herein, on 19th April, 2002 seeking to restrain the defendants from interfering in his possession over the suit property. The suit was based on the Will dated 6th December, 1996 claiming title to the suit property. The defendants in that suit did not dispute the validity of the Will, executed by Rattan Chand on 6th December, 1996, but pleaded that this Will was being wrongly interpreted by the plaintiff, as the land in question was not exclusively given to the plaintiff by this Will. Defendants, curiously did not set up the Will dated 7th December, 1996 nor questioned the validity of the Will dated 6th December, 1996. Nevertheless, the trial court while discussing Issues No. 1 and 2, observed that Kali Dass and others had challenged the validity of the Will dated 6th December, 1996 in Civil Suit, out of which this second appeal arises, and in that suit the learned Sub Judge (II), Dharamshala, held the Will dated 6th December, 1996 to be valid. 5. Two separate appeals were laid before the learned District Judge, Dharamshala, by Kali Dass and others. 5. Two separate appeals were laid before the learned District Judge, Dharamshala, by Kali Dass and others. One arising out of Civil Suit No. 44 of 2002 and other arising out of Civil Suit No. 107/2K/97. These appeals came to be decided by the learned District Judge, Kangra at Dharamshala, by two separate judgments of the same date. The learned District Judge upheld the findings of learned trial court arising out of Civil Suit No. 107/2K/97 decided on 15th November, 2001, concurring with the findings of the learned trial court that the Will dated 7th December, 1996 was not a valid and genuine Will. The other appeal, arising out of Civil Suit No. 44 of 2002 too was dismissed, holding that the Will dated 6th December, 1996 was genuine and valid will, executed by Rattan Chand. 6. Aggrieved defendants-appellants laid an appeal against the judgment and decree of the learned District Judge dated 6th October, 2003. This Court dismissed the second appeal on 23rd December, 2003 upholding the validity and genuineness of the Will dated 6th December, 1996. It was only thereafter that Kali Dass appellant filed the present appeal, arising out of Civil Suit No. 107/2K/97 on 9th January. 2004. 7. So far genuineness and validity of the Will dated 6th December, 1996 is concerned, the findings that Will dated 6th December, 1996 is valid and genuine and has become final and conclusive between the parties, in view of the decision of this Court in RSA No. 456 of 2003. The appellant Kali Dass in fact did not raise any plea either before the learned District Judge or this Court that the Will dated 7th December, 1996 was valid, genuine and revoked the Will dated 6th December, 1996. 8. In the factual matrix of the case, the findings in Civil Suit No. 44 of 2002, that the Will dated 6th December, 1996 is valid and genuine, having attained finality would be res-judicata, for the purpose of this appeal, where the validity of the Will dated 6th December, 1996 in view of subsequent Will is under challenge. The expression "former suit" would mean previously decided case and the same interpretation applies to the appeals. Explanation 1 to Section 11 confirms the meaning of previous decisions to the same effect. The appellant, therefore, cannot be permitted to question the validity of the Will dated 6th December, 1996. 9. Mr. The expression "former suit" would mean previously decided case and the same interpretation applies to the appeals. Explanation 1 to Section 11 confirms the meaning of previous decisions to the same effect. The appellant, therefore, cannot be permitted to question the validity of the Will dated 6th December, 1996. 9. Mr. Sharma, learned counsel for the appellants urges that dehors the judgment of this court in RSA No. 456 of 2003 where the Will dated 6th December, 1996 has been held to be genuine and valid, if this Court comes to the conclusion that the Will dated 7th December, 1996 is validly executed is not visited by any illegality then the Will dated 6th December, 1996 automatically stood revoked and decision of this Court in RSA No. 456 of 2003 becomes nonest. 10. I am of the view, apart from the fact that by judgment of this Court in RSA No. 456 of 2003, the genuineness and validity of the Will dated 6th December, 1996, has been upheld and has become conclusive between the parties, fact re- mains that both the courts found that the Will dated 7th December, 2003 not to be valid and genuine in view of the suspicious circumstances, by which the Will is shrouded. The evidence led by the appellants in support of the Will dated 7th December, 1996 was found to be unsatisfactory and not worthy of reliance by the courts below. There are no reasons to differ with these findings of fact. 11. No substantial question of law arises in this appeal. 12. Dismissed. No costs.