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2015 DIGILAW 827 (ALL)

CHAMELI DEVI v. ANARA DEVI

2015-04-16

PANKAJ MITHAL

body2015
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Vijendra Pal Singh, learned counsel for the plaintiff/appellant. 2. The plaintiff/appellant instituted a suit for cancellation of the registered Will dated 19.11.1998 executed by Aidal Singh in favour of his widow and five sons. 3. The suit for cancellation was filed by Smt. Chameli Devi widow of one of the sons of Aidal Singh alleging that the Will is unnatural as it excludes her husband from the benefit of the property; secondly it is fake, it has not been executed and signed by Aidal Singh. Lastly, it has been alleged that the Will has been got executed by exercising undue influence upon Aidal Singh who was not in a sound disposing mind at the time of executing the Will. 4. The defendants/respondents appeared but failed to file any written statement within time and, as such, the written statement filed by them subsequently was rejected. 5. In absence of the written statement, the Court of first instance could not frame any issue which actually would have arisen for adjudication. Thus, the Court proceeded on the basis of the plaint allegations and the evidence adduced by the plaintiff. The suit as dismissed holding that the plaintiff failed to prove that the Will executed by Aidal Singh is a fake document and it was executed by him without understanding its import. 6. The aforesaid judgment and order of the Court of first instance has been approved by the appellate Court below. 7. Aggrieved by the aforesaid judgments and orders of the two Courts below the plaintiff/appellant has preferred this appeal. 8. It has been argued that as the written statement of the defendants/respondents was rejected, the Court was liable to pronounce a judgment against them as envisaged under Order 8 Rule 10 C.P.C. 9. Order 8 Rule 10 C.P.C. empowers the Court to pronounce a judgment against the defendant who fails to submit written statement within time or to make such other order in relation to the suit as it may think fit. 10. Thus, from the plain reading of Rule 10 of Order 8 C.P.C., it is clear that in absence of the written statement of the defendant, the Court may pronounce judgment against the defendant or may pass a different order as may appear to be it to be fit. 10. Thus, from the plain reading of Rule 10 of Order 8 C.P.C., it is clear that in absence of the written statement of the defendant, the Court may pronounce judgment against the defendant or may pass a different order as may appear to be it to be fit. It is not imperative to pronounce a judgment against the defaulting defendant and that the Court at its discretion may pass a different order which may include an order dismissing the suit as well. 11. In this view of the matter, if the Court of first instance despite non filing of the written statement by the defendants has pronounced the judgment dismissing the suit, no jurisdictional error or any error of procedure has been committed. 12. The other argument raised by the plaintiff in this appeal is that the Will in dispute does not contain the photograph of Aidal Singh as well as his signatures. 13. The burden to prove that the Will is fake or it does not contain the signatures of Aidal Singh or that he was not in a sound mental state to execute the Will was upon the plaintiff which he failed to discharge. The Courts below on the basis of the material on record have recorded findings of fact that the plaintiff could not prove either of the things to dislodge the Will. 14. The aforesaid findings are finding of fact which are beyond interference in second appeal. 15. Lastly, it has been submitted that there in unnatural disposition in the Will for the reason that one of the son of Aidal Singh has been left out from the benefit of the property. 16. The Court below in this regard has recorded a finding that there is no unnatural disposition. The Will purports to bequeath the properties alleged to have been left behind by Aidal Singh between his five sons. The sixth son of Aidal Singh namely, Pratap Singh was excluded for the reason that he had no issue or son. Thus, there are no unnatural circumstances surrounding the execution of the Will. 17. In view of the above facts and circumstances the decision of the Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, AIR 2007 SC 614, is of no assistance to the plaintiff/appellant. 18. Thus, there are no unnatural circumstances surrounding the execution of the Will. 17. In view of the above facts and circumstances the decision of the Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others, AIR 2007 SC 614, is of no assistance to the plaintiff/appellant. 18. In view of the aforesaid facts and circumstances and the findings returned by the Courts below, there appears to be no error in dismissing the suit. ———————