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2017 DIGILAW 742 (MP)

Rekha v. Indira Bai

2017-06-19

N.K.GUPTA

body2017
ORDER 1. The learned Civil Judge Class-I, Amarwara District Chhindwara in Civil Suit No.43-A/2009 vide judgment and decree dated 14.5.2010 decreed the suit of the plaintiff/respondent on the basis of a Will and it was directed that she was entitled to get the possession of the suit property. In Civil Appeal No.18-A/2010 the learned Additional District Judge, Amarwara District Chhindwara dismissed the appeal vide judgment and decree dated 26.3.2013. Being aggrieved with the aforesaid decree and judgments, the appellant/defendant has preferred the present second appeal. 2. The learned counsel for the appellant has advanced his arguments on various counts. It was submitted that the respondent did not plead her possession on the basis of a Will and without pleading about her source of ownership, she could not get her suit decreed. In this contention, it is apparent that initially the trial Court dismissed the suit vide judgment and decree dated 31.10.2008 and thereafter the learned Additional District Judge, Amarwara vide judgment dated 25.8.2009 in Civil Appeal No.16-A/2009 remanded the case with a direction that the plaintiff may be permitted to prove the Will. Thereafter, it was the duty of the learned counsel for the plaintiff to make the modification in the plaint, but it was not made accordingly. However, in para 5 of the plaint, the plaintiff had pleaded herself to be exclusive owner of the property, and, therefore, if the source of ownership was not pleaded, then still it was in the knowledge of both the parties that the plaintiff was depending upon the Will to claim her rights. Under such circumstances, if any mistake is committed by an advocate, then the party cannot be punished on that count. Therefore, if there is no specific pleading about the Will in the plaint, then still it makes no difference to the decrees passed by both the Courts below. 3. The learned counsel for the appellant has invited attention of this Court to para 10(2) of the statement given by the plaintiff Indira Bai before the trial Court in which she accepted that the valuation of the house was a sum of Rs.3 lacs. Actually this was the statement given by the plaintiff Indira Bai on 10.12.2009 and by typographical error para 21 was marked as para 10. However, in para 15 of her statement, she has accepted that the house was of Rs.15,000/- only. This statement was recorded on 26.9.2008. Actually this was the statement given by the plaintiff Indira Bai on 10.12.2009 and by typographical error para 21 was marked as para 10. However, in para 15 of her statement, she has accepted that the house was of Rs.15,000/- only. This statement was recorded on 26.9.2008. For assessment of the court-fees, the valuation of the suit property is to be counted from the date of the suit and not from the date of evidence. Therefore, when no suggestion was given by the learned defence counsel to the witness that there was a higher valuation of the property at the time of filing of the suit, then it cannot be said that by the statement given by the plaintiff on 26.9.2008 suit may be valued and therefore it is apparent that the plaintiff has done the valuation of the suit appropriately and she paid appropriate court-fees. Under such circumstances, on this count the decrees passed by both the Courts below cannot be disturbed. 4. The learned counsel for the appellant has also invited attention of this Court to the document of the Will Ex.P-8 that in the endorsement of the stamp vendor, it was mentioned that the stamp was sold for preparation of an agreement, and therefore the Will was doubtful. Actually, no stamp duty was required for execution of the Will, and, therefore, if the stamp vendor has mentioned any other reason for sale on that stamp, then it makes no difference to the execution of the Will. The Will is duly proved by the witnesses and the learned counsel for the appellant does not challenge its execution proved by the witnesses. Under such circumstances, both the Courts below have rightly passed the decree in favour of the respondent on the basis of the Will. There is no basis by which any interference may be done by this Court by way of this second appeal filed by the appellant. No illegality or perversity has been done by the trial Court or the appellate Court, and, therefore, no substantial question of law is involved in the present second appeal which is to be decided. Therefore, the second appeal filed by the appellant cannot be accepted. Consequently, it is hereby dismissed with cost at motion stage. 5. Copy of the order and appellate decree (if any) shall be sent to both the Courts below along with their records.