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2013 DIGILAW 757 (HP)

KISHAN CHAND v. DURGA

2013-08-21

A.M.KHANWILKAR

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JUDGEMENT A.M.KHANWILKAR, C.J. - 1. HEARD counsel for the parties. As short question is involved, the appeal is taken up for final disposal forthwith, by consent. 2. THIS second appeal takes exception to the judgment and decree passed by the Additional District Judge dated 15th December, 2012 in Civil Appeal No. 62 of 2010. The appellants/plaintiffs rested their suit on the basis of Will executed in their favour by Gugna dated 27th October, 1995. That claim has been negatived, both by the trial Court as well as the Appeal Court for the reasons recorded in the impugned judgment. The trial Court has found as of fact that the said Will stood revoked by virtue of subsequent revocation Will executed by Gugna. This being concurrent finding of fact, no interference in that behalf is warranted. 3. THE only other issue, that remained to be examined by the Courts below, was in the context of further relief claimed by the appellants/plaintiffs in the context of Will executed on 9th April, 2003 by Sundru in favour of respondents-defendants No. 1 to 3. Although, specific issue has been framed in this behalf, being issue No.3, the trial Court disposed of that relief on the finding recorded in paragraph 24 that no evidence was produced by the plaintiffs to establish the fact that the Will executed by Sundru dated 9th April, 2003 was null and void or executed in suspicious circumstances, as such. This finding is recorded in the context of Issue No.3 as couched, which cast onus on the plaintiffs to prove that the Will dated 9th April, 2003 was wrong, illegal, null and void. 4. IN the appeal filed by the appellants, specific grievance has been made by the appellants, which has been noted in paragraph 7 of the impugned judgment that the trial Court committed illegality in deciding Issue No.3 in favour of the defendants in absence of any evidence produced by the defendants substantiating the factum of execution of the Will dated 9th April, 2003 and that the same was executed in compliance of Section 53 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Although, this plea has been noted by the Appellate Court, no discussion is found with regard to the said plea in the entire judgment. This position is fairly accepted by the counsel for the respondents-contesting defendants. Although, this plea has been noted by the Appellate Court, no discussion is found with regard to the said plea in the entire judgment. This position is fairly accepted by the counsel for the respondents-contesting defendants. No doubt, the argument of the respondents- contesting defendants is that Issue No.3, as framed, required the plaintiffs to discharge the onus in establishing the fact that Will dated 9th April, 2003 was illegal, null and void and the plaintiffs having failed to produce any evidence in that behalf, no fault can be found with the conclusion reached by the trial Court. However, this is a matter, which the First Appellate Court ought to have examined in the first place. In other words, it was for the First Appellate Court either to uphold the finding and conclusion reached by the trial Court with reference to Will dated 9th April, 2003 or to upset the same and take a different view of the matter. In the circumstances, instead of examining that issue for the first time in the present second appeal, I deem it appropriate to set aside the order of the First Appellate Court in part only to examine Issue No.3 in the context of validity of Will dated 9th April, 2003. The First Appellate Court shall examine that limited question on its own merits, in accordance with law. 5. NOTABLY, the counsel for the respondents-contesting defendants, in all fairness, submits that issue No.3, as framed, is not proper. For, the onus as to whether the Will in favour of the contesting defendants is properly executed and is valid in law must be on them and not the plaintiffs. And for that purpose, the said defendants may have to produce evidence. In that case, it will be open to the respondents to persuade the First Appellate Court that if that question can be answered, only if the defendants produce evidence with reference to validity of Will dated 9th April, 2003, the Appellate Court may consider of re-framing that Issue No.3 and then permit the respondents- contesting defendants No. 1 to 3 to produce such evidence. However, even that is a matter, which will have to be considered by the First Appellate Court. 6. ACCORDINGLY, the appeal succeeds in part to the limited extent, as indicated above. However, even that is a matter, which will have to be considered by the First Appellate Court. 6. ACCORDINGLY, the appeal succeeds in part to the limited extent, as indicated above. The First Appellate Court will re-examine the matter only in the context of Issue No.3 with reference to Will dated 9th April, 2003, in accordance with law and if necessary by giving further opportunity to the parties. The parties to appear before the First Appellate Court on 16th September, 2013, when the First Appellate Court may pass appropriate orders regarding hearing of the first appeal. 7. THE appeal is disposed of.