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2015 DIGILAW 2780 (ALL)

Sona Devi v. Hakimuddin

2015-09-04

ASHWANI KUMAR MISHRA

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JUDGMENT Ashwani Kumar Mishra, J. This second appeal arises out of a suit for specific performance, which has been decreed by both the courts below. 2. Facts, in brief, are that the suit property originally belonged to one Ram Sukh and after his death, his wife Smt. Khimiya executed a registered agreement to sell on 3.9.1979 in favour of plaintiffs-respondents first set. It appears that on 21.9.1979 Smt. Khimiya had died and thereafter original suit no.123 of 1980 was filed by the plaintiffs-respondents first set for specific performance of contract, in which heirs of Ram Sukh and Smt. Khimiya were impleaded as defendants. The suit was contested by one of the heirs i.e. Smt. Sona Devi, who is appellant before this Court. So far as the other heirs are concerned, no contest was put forth in the suit and the suit ultimately was decreed. Smt. Sona Devi preferred an appeal under section 96 CPC, which has also been dismissed by the lower appellate court. Aggrieved by the judgment and decree of the courts below, granting decree of specific performance, defendant-appellant has filed the present appeal invoking jurisdiction of this Court under section 100 CPC. 3. Learned counsel appearing for the defendant-appellant submits that the basis of execution of agreement to sell by Smt. Khimiya was an alleged unregistered will dated 17.3.1979, which according to the appellant was got registered after death of Ram Sukh, the testator, on 18.4.1970. Learned counsel further submits that will itself was not proved and the mere fact, that the registration of will had taken place after the death of Ram Sukh, generates suspicion with regard to execution of the will, but this aspect of the matter has not been gone into by any courts below. It is also submitted that no probate or letter of administration in terms of section 213 of the Succession Act was ever issued in favour of Smt. Khimiya, and therefore, no right devolved upon her on the basis of alleged will. 4. Learned counsel appearing for the plaintiffs-respondents, on the other hand, submits that law is settled that in respect of the State of Uttar Pradesh, there is no necessity of obtaining probate, and therefore, the submission advanced on behalf of the defendant-appellant that in the absence of probate a will could not be given effect to has rightly been considered by the courts below. In this context, reliance has been placed upon the decisions of this Court in the case of Smt. Bimla Gaindher v. Smt. Usha Gaindher and another: 2004 (2) AWC 1855 and Ramjas (now dead) and others vs. Smt. Sunder Devi and another: 2014 (7) ADJ 317 . It is further submitted that so far as the will is concerned, defendant-appellant was made aware of the same when she was arrayed as a party in the suit filed in the year 1980, but till date the will has never been challenged by the defendant-appellant and no suit for cancellation of will has ever been filed and in the absence of such a challenge to the will, the argument advanced by the defendant-appellant doubting the correctness of the will is not liable to be gone into. 5. In rebuttal, learned counsel for the defendant-appellant submits that a suit for cancellation of will has been filed by one of the heirs, Chunni Lal, but no such fact in this regard appears on record. 6. Having heard learned counsel for the parties, this Court finds that the factum of execution of will was within the knowledge of the defendant-appellant and at no point of time she had never initiated proceedings for cancellation of will. So far as the argument that no probate or letter of administration has ever been issued in favour of Smt. Khimiya under section 213 of the Act is concerned, the law is settled that in the State of Uttar Pradesh there is no requirement of obtaining a probate. The courts below have further found that defendant-appellant has not setup her claim on the basis of inheritance but rather setup her claim on the basis of a will, which itself has not been found proved and finding to that effect has been returned upon consideration of materials available on record. 7. In view of the discussions made above, this Court finds that the judgment and decree dated 4.3.1987, passed by the trial court, as well as the judgment and decree dated 8.2.1997, passed by the lower appellate court, are not liable to be interfered with on the grounds, which have been urged before this Court by learned counsel for the appellant. The findings with regard to execution of agreement to sell is based upon consideration of oral and documentary evidence, which is not required to be reappraised in the present appeal. The findings with regard to execution of agreement to sell is based upon consideration of oral and documentary evidence, which is not required to be reappraised in the present appeal. It is also a matter of record that pursuant to the decree passed by the lower appellate court, the court has already executed a sale deed in favour of plaintiffs-respondents and the Court is informed that proceedings for taking possession are pending in execution. In such view of the matter, this Court finds that no substantial question of law arises for consideration in the present appeal. 8. The second appeal is accordingly dismissed.