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2019 DIGILAW 1640 (HP)

Manoj Kumar v. Joginder Kumar

2019-11-05

AJAY MOHAN GOEL

body2019
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this petition filed under Article 227 of the Constitution of India, petitioners/ plaintiffs have assailed order dated 05.12.2018, passed by the Court of learned Civil Judge (Sr. Divn.) Court No. 1, Ghumarwin, District Bilaspur, H.P. in C.M.A. No. 116-6 of 2018 filed by the present petitioners under Sections 62, 70, 276 of the Indian Succession Act read with Order 14, Rule 5 of the Code of Civil Procedure in Civil Suit No. 388-1/16-15, praying for striking off Issue No. 2 framed by the learned Trial Court, which reads as under:- "Whether the defendant has in the alternative acquired the right and interest in the suit land on the basis of previous will dated 14-02-2013 executed by the deceased Dina Nath, as claimed and the said will is valid, lawful and legally enforceable, if so its effect? OPD" 2. Brief facts necessary for the adjudication of the present petition are that the petitioners herein have filed a suit against respondent No. 1 herein praying for the following reliefs:- "It is, therefore, respectfully prayed before the Hon'ble Court that the following decree may very kindly be passed in favour of the plaintiffs and against the defendant and justice be done:- (i) Decree to the effect that the plaintiffs are the joint owner in possession over the land comprised in Khasra No. 22, 24, 38 Kitta 3 Khewat No. 48 Khatauni No. 60 Land measuring 19-14 Bigha as land measuring 2-13 Bigha has already been sold by late Sh. Dina Nath and land measuring 1-13 Bigha which is 42/60 share to total land measuring 2.10 Bigha Khasra No. 21 Khewatr No. 58 Khatauni No. 70 in Bilaspur (HP) be passed. (ii) Decree to the effect that the alleged will dated 4-4- 2015 allegedly executed by late Sh. Dina Nath son of Sh. Keshav Dutt of the suit land is illegal, wrong, null and void and does not effect the right, title and interest of the plaintiffs over the suit land be passed. (iii) Decree of permanent prohibitory injunction restraining the defendant from interfering in any ways, means and manner over the suit land and dispossessing the plaintiffs over the suit land, digging any part, raising the construction, alienating the suit land and from getting the revenue entries changed on the basis of the alleged will dated 4-4-2015 be passed." 3. (iii) Decree of permanent prohibitory injunction restraining the defendant from interfering in any ways, means and manner over the suit land and dispossessing the plaintiffs over the suit land, digging any part, raising the construction, alienating the suit land and from getting the revenue entries changed on the basis of the alleged will dated 4-4-2015 be passed." 3. In para 4 of the plaint, petitioners took the following stand:- "That late Sh. Dina Nath son of Sh. Keshav Dutt died on dated 13-4-2015 and the defendant threatened the plaintiffs that he had obtained a document alleged to be the Will of the suit land and has become owner by virtue of this alleged Will dated 4-4-2015 and on the basis of this Will, shall dispossess the plaintiffs from the suit land forcibly and from the residential houses, cowshed, Kitchen and gardens of mangoes trees and take the possession by dispossessing the plaintiffs." 4. Respondent No. 1 herein denied the claim of the plaintiffs by way of para 4 and 5 of the written statement in the following terms:- "(4) That the para No. 4 is correct that late Sh. Dina Nath has expired, but it is wrong to say that the answering defendant gave any threat, as the defendant is in possession of the land which he inherited from Sh. Dina Nath by virtue of the Will dated 4.4.2015. (5) That the para No. 5 is wrong, hence denied. It is wrong to say that late Sh. Dina Nath has not executed the Will dated 4.4.2015 and it is also wrong to say that Dina Nath was not competent to execute any Will. But in fact, Dina Nath has executed the Will dated 4.4.2015 when he was in sound state of mind with his free will which is duly registered in the office of Sub-Registrar Bharari. Though late Sh. Dina Nath was suffering with illness those days and had got physical weakness, but he was mentally sound and the illness had no effect on his mental position. The alleged Will is legal, valid and genuine one so it is wrong to say that the same is null and void or is illegal and wrong surrounded with any suspicious circumstances. It is pertinent to mention that the plaintiff No. 1 was not looking after and serving late Sh. The alleged Will is legal, valid and genuine one so it is wrong to say that the same is null and void or is illegal and wrong surrounded with any suspicious circumstances. It is pertinent to mention that the plaintiff No. 1 was not looking after and serving late Sh. Dina Nath and he was serving as servant of his maternal uncle, whereas it is defendant who had been serving late Sh. Dina Nath for the last about 14-15 years. In fact, when his son i.e. plaintiff No. 1 was not serving him, then late Sh. Dina Nath approached the father of the defendant to send him for looking after him as in relation Sh. Dina Nath was maternal grand father of the defendant. It is also worth mention that prior to the alleged Will late Sh. Dina Nath has also executed a Will on dated 14.2.2013 in the name of the defendant and the plaintiff No. 4 Soma Devi. As such in the alternative the defendant is owner in possession by virtue of the Will dated 14.2.2013, it he failed to prove the Will dated 4.4.2015." 5. On the basis of the pleadings of the parties, learned Trial Court on 06.11.2017 framed the following issues:- "1. Whether the will dated 04-04-2015 executed by the deceased Dina Nath bequeathing the suit land in favcour of the defendant is valid, lawful and legally enforceable being his last and valid will, if so its effect, as claimed? OPD. 2. Whether the defendant has in the alternative acquired the right and interest in the suit land on the basis of previous will dated 14.02.2013 executed by the deceased Dina Nath, as claimed and the said will is valid, lawful and legally enforceable, if so, its effect? OPD. 3. Whether the plaintiffs are entitled to inherit the suit land being legal heirs of the deceased Dina Nath, as claimed? OPP. 4. Whether the plaintiffs are in actual physical possession of the suit land as claimed? OPP. 5. Whether the defendant is causing unlawful interference in the suit land in possession of the plaintiffs, as alleged? OPP. 6. Whether the suit land is ancestral, co-parcenary and joint Hindu family property of the plaintiffs and the deceased Dina Nath, as claimed, if so, its effect? OPP. 7. OPP. 5. Whether the defendant is causing unlawful interference in the suit land in possession of the plaintiffs, as alleged? OPP. 6. Whether the suit land is ancestral, co-parcenary and joint Hindu family property of the plaintiffs and the deceased Dina Nath, as claimed, if so, its effect? OPP. 7. Whether the will dated 04-04-2015 qua the suit land executed by the deceased Dina Nath is not lawful and is illegal, null and void? OPP. 8. Whether the suit of the plaintiffs is not maintainable, as alleged? OPD. 9. Whether the plaintiffs have not approached the court with clean hands and have suppressed true and material facts, thus estopped for filing this suit for their own acts and conduct, as alleged? 10. Whether the suit of the plaintiffs is not valued properly for the purposes of court fee and jurisdiction, as alleged? OPD 11. Relief." 6. Feeling aggrieved by the framing of Issue No. 2, an application under Sections 67, 70, 276 of the Indian Succession Act, read with order 14, Rule 5 of the Code of Civil Procedure supra (Annexure P-5) was filed by the present petitioners for striking off said Issue. It is this application which has been dismissed by the learned Trial Court vide impugned order. 7. Learned Senior Counsel appearing for the petitioners has argued that the order passed by the learned Trial Court is not sustainable in the eyes of law as while dismissing the application filed by the plaintiffs, learned Trial Court has erred in not appreciating that the same propounder could not have been permitted to rely upon two Wills executed by a testator. He has argued that though in law it is not as if a testator can execute only one Will in his or her life, however, it is settled law that with the execution of a subsequent Will, the previous Will comes to an end because it is the last Will of the testator which holds the field and this extremely important aspect of the matter has been lost sight of by the learned Trial Court while passing the impugned order and by not striking off Issue No. 2. 8. 8. On the other hand, learned Counsel for respondent No. 1/defendant has submitted that there was no perversity with the impugned order as the learned Trial Court has rightly rejected the application which was filed before it by the present petitioners as the same lacked merit. He has further argued that in law nothing prevents the respondent/defendant from placing reliance upon two Wills executed by the same testator, and that too, in favour of same person. 9. I have heard learned Counsel for the parties and gone through the impugned order as well as other documents appended with the present petition. 10. In the plaint which has been filed by the petitioners/plaintiffs, they claim to be owners in possession of the suit land on the ground that they have inherited the estate of Shri Dina Nath being his legal heirs. In this background, they have alleged that neither any Will was executed by late Shri Dina Nath on 4.4.2015, as is being propounded by defendant No. 1, nor Dina Nath was competent to execute the Will as he was seriously ill at the relevant time. 11. In response thereto, defendant while stating that Dina Nath had bequeathed his property in favour of defendant No. 1 vide Will dated 4.4.2015, took an alternative plea that in case, he failed to prove Will dated 4.4.2015, then Sh. Dina Nath had executed another Will on 14.2.2013 in the name of defendant No. 1 as also in favour of plaintiff No. 4 Soma Devi. 12. On the strength of the said pleadings, as has been mentioned hereinabove also, learned Trial Court alongwith other Issues, framed Issue No. 2. While dismissing the application filed by the petitioners, learned Trial Court held that there was no bar for a party to take alternative pleas or defenses and it was for the party to substantiate the fact asserted by it by leading cogent evidence and legal consequences of an established fact on the merits of the case of a party to the dispute may be assessed in the entirety of the facts and circumstances of the case at an appropriate stage. Learned Trial Court while dismissing the application left open to the present petitioners the liberty to raise the said issue at an appropriate stage. 13. In my considered view, the order so passed by the learned Trial Court suffers from no infirmity. Learned Trial Court while dismissing the application left open to the present petitioners the liberty to raise the said issue at an appropriate stage. 13. In my considered view, the order so passed by the learned Trial Court suffers from no infirmity. Framing of the Issues by the learned Trial Court is governed by the pleadings which the parties submit before the said Court on the basis of the respective stands that may be taken by them in the plaint as well as written statement. But, of course, after framing the Issues, the onus to prove the Issues so framed is fixed by the Court, and then, the onus has to be discharged by the concerned party, by leading cogent and reliable evidence to prove the same. In case, a party asserts that a plea taken by a particular opponent is not sustainable in law, then it is a legal issue which the Court decides on the strength of the pleadings of the parties and the law of the land, which may govern the field as also the statutory provisions, if any, governing the field. 14. In the present case, the Issue raised by the present petitioners is whether the defendant can rely upon two different Wills, purportedly, executed by same testator or not. That being a legal issue, learned Trial Court, but obvious, shall adjudicate upon the same once the parties lead their evidence on the Issues so framed, in terms of the liberty which has been so granted to the petitioners by the learned Trial Court vide impugned order. Therefore, it cannot be said that the order which has been passed by the learned Trial Court, which stands impugned by way of present petition, is a perverse order. 15. Accordingly, as this Court does not finds any merit in the present petition, the same is dismissed, however, it is reiterated that the petitioners shall be at liberty to raise/their pleas, in terms of order passed by the learned Trial Court, in accordance with law before the learned Trial Court at the appropriate stage. 16. The petition stands disposed of in above terms, so also pending miscellaneous applications, if any.