Himachal Pradesh High Court
Sh. Ranjeet Singh vs Of on 17 November, 2016
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
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FAO No. 406 of 2014
Date of Decision : November 17 , 2016
Sh. Ranjeet Singh ...Appellant
Versus
of
Sh. Prithvi Singh & others ... Respondents
Coram: rt
The Hon'ble Mr. Justice Sanjay Karol, Judge.
Whether approved for reporting? Yes. 1
For the appellant : Mr. B. N. Sharma, Advocate, for the appellant.
For the respondent : Mr. I. N. Mehta, Advocate, for respondents No.
1, 5, 6 and 7.
Sanjay Karol, J. (oral)
Sunder Singh and Mehar Singh jointly owned certain properties. Sunder Singh had two wives namely Misru Devi (defendant No. 2) and Isru (defendant No. 9) who respectively gave birth to sons Ranjeet Singh (defendant No. 1) and Prithvi Singh (plaintiff). Dispute pertaining to the inheritance of estate of Sunder Singh resulted into the Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 2parties litigating amongst themselves. The dispute is primarily between Prithvi Singh and Ranjeet Singh.
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Resultantly Prithvi Singh (respondent No. 1 herein) filed a suit, inter alia, against Ranjeet Singh (appellant herein) seeking declaration of his right in the estate of Sunder Singh. In defence Ranjeet Singh claimed absolute ownership of on the basis of Will dated 7.2.2009, allegedly executed by Sunder Singh, excluding Prithvi Singh from inheritance.
rt 2 Based on the respective pleadings of the parties, trial Court framed the following issues:
1. Whether the will dated 07.02.2009 executed by Sunder Singh is declared to be null and void, as alleged? OPP
2. Whether mutation No. 19/09 dated 07.02.2009 on the basis of will is also declared to be null and void? OPP
3. Whether suit of the plaintiff is not maintainable in the present form? OPD
4. Whether suit is bad for non-joinder and misjoinder of necessary parties? OPD.
5. Whether suit of plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD
6. Relief.
3 Finding, the plaintiff not to have established its case, issues came to be decided in favour of the defendant ::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 3 and, as such, trial Court dismissed the suit in terms of judgment and decree dated 7.12.2013 passed in Civil Suit .
No. S.D./0300063/2009, titled as Prithvi Singh vs. Ranjeet Singh & others.
4 In the plaintiff's appeal, the lower Appellate Court, by framing the following two additional issues, of remanded the matter back to the trial Court, for deciding all the issues on the strength of the evidence, which may be rt led by the parties:
5-A. Whether Sh. Sunder Singh has executed a valid and legal Will dated 7-2-2009 in favour of defendants, if so, its effect? OPD 5-B Whether there was a family partition between Sunder Singh and Mehar Singh upon which Sunder Singh became absolute owner in possession of the suit property? OPD However while doing so, it set aside the judgment and decree passed by the trail Court.
5 It is this order dated 4.11.2014, passed by District Judge, Kinnaur Civil Division at Rampur Bushahr, Distt. Shimla in plaintiff's Civil Appeal No. 0000007/2014, titled as Prithvi Singh vs. Ranjeet Singh & others, which is ::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 4 subject matter of challenge in the present appeal filed by the defendant.
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6 Having heard learned counsel for the parties as also perused the record, one finds that the lower appellate Court committed grave illegality and irregularity by totally setting aside the judgment and decree, in remanding the of matter back to the trial Court. It amounts to a wholesale remand. rt 7 In somewhat similar circumstances, this Court in Nagar Mal and another v. Bimal Kumar and another, Latest HLJ 2005(HP) 679, deprecated the practice of wholesale remand of the case by the appellate Court, more so keeping in view the provisions of Order 41 of the Code of Civil Procedure.
8 A Division Bench of this Court in Prem Kumar and others v. Parkash Chand and others, 2002(3) SLC 358, while dealing with an identical issue, held that:-
"6. Learned Counsel for the appellants contended that the directions issued by the learned Additional District Judge are not in accordance with the provisions of Rules 23, 23-A or 25 of Order 41, Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). He submitted that the appellate Court can make an order of remand either under Rule 23 or 23-A or Rule 25 of Order 41 of the Code.::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 5
7. So far as Rule 23 is concerned, the said provision obviously is not applicable to the case in hand in view of the fact that the trial Court had not disposed .
of the suit on a preliminary point. The question, therefore, is either the order is passed by the first appellate Court under Rule 23-A or Rule 25 of Order 41 of the Code. But, in either case, contended the learned Counsel, it was obligatory on the part of the first appellate Court to frame issue(s). If the first appellate Court was of the view that the decree passed by the trial Court was liable to be reversed which had been passed on merits, it was open to the of appellate Court if it thought fit to remand the matter by directing what issue or issues should be framed in the case so remanded and by sending a copy of the judgment or order to the Court from whose decree the appeal was preferred, i.e., to the trial Court. But rt the said course has not been adopted by the first appellate Court. Similarly, Rule 25 has also not been invoked inasmuch as it was incumbent upon the first appellate Court to frame issue or issues and refer the same to the trial Court from whose decree the appeal is preferred by directing the said Court to take additional evidence if required, proceed to try such issue or issues and return the evidence to the appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the appellate Court. That is, however, not done. Hence, in either case, the order passed by the first appellate Court deserves to be quashed and set aside.
8. We find considerable force in the argument of the learned Counsel for the appellants. In our opinion, in either case, i.e. either under Rule 23-A or under Rule 25 of Order 41 of the Code, the first appellate Court ought to have framed additional issue(s) and ought to have issued necessary directions. In our considered opinion, the order passed by the first appellate Court is not in conformity with law. It is, therefore, liable to be quashed and set aside. Accordingly, the appeal filed by the appellants stands allowed. The order passed by the Additional District Judge, Mandi, dated 30th June, 2001 is hereby quashed and set aside by directing the appellate Court to pass an appropriate order by framing ::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 6 necessary issue(s) and by making necessary directions to the trial Court. In the facts and circumstances of the case, no order as to costs."
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(Emphasis supplied) 9 Lower appellate Court, rather than setting aside the judgment and decree, without adjudicating the issues on merit and remanding the matter for trial and of consideration of all issues, ought to have resorted to the provisions of Order 41 Rule 25 of the Code of Civil Procedure as stands clarified by the Apex Court in Jabbar rt Singh v. Shanti Swaroop, 2006 (3) SLC 58.
10 The subject matter of suit, was only about inheritance to the estate of Sunder Singh. Whether it stood partitioned by metes and bounds or otherwise, with Mehar Singh or not, was neither an issue agitated by the parties, nor required to be considered in the lis, inter se them. As such, lower appellate Court exceeded its jurisdiction in framing issue No. 5-B. 11 Insofar as Issue No. 5-A is concerned, again the lower appellate Court erred in framing the same, entitling the parties to lead further evidence. Fact that the trial Court itself had framed an issue, pertaining to the validity of the ::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 7 Will (Issue No. 1), perhaps, escaped its attention, which erroneously led to the framing of additional issue No. 5-A. .
12 It is a settled principle of law that regardless of the onus, which the parties are required to discharge, in a case of Will, it is always the propounder thereof, who has to establish its valid execution, in accordance with law. Hence of it did not matter as to whether the trial Court placed the onus on the plaintiff or not, for what was required to be rt considered by the Court is as to whether the propounder was able to discharge its burden, so cast upon him under law, of proving the Will, to have been validly executed or not. The position is no longer res integra as stands settled by the apex Court in H. Venkatachala Iyengar vs. B. N. Thimmajamma & others, AIR 1959 SC 443 and Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao & others, AIR 2007 SC 614: (2006) 13 SCC 433.
13 Thus, for the aforesaid reasons, appeal is allowed and the impugned judgment dated 4.11.2014, passed in Civil Appeal No. 0000007/2014, titled as Prithvi Singh vs. Ranjeet Singh & others, quashed and set aside.
::: Downloaded on - 15/04/2017 21:34:22 :::HCHP 814 Matter is remanded back to the lower appellate Court with a direction to consider and decide the appeal on .
the basis of material already on record. At the cost of repetition, it is reiterated that the onus of discharging the burden of proving the Will, shall always be upon the propounder.
of 15 Parties are directed to appear before the lower appellate Court on 9.12.2016. Hearing is expedited. Parties rt undertake to fully cooperate. Records of the Courts below be returned immediately.
Appeal stands disposed of, so also the pending application(s), if any.
(Sanjay Karol), Judge.
November 17 , 2016 (PK) ::: Downloaded on - 15/04/2017 21:34:22 :::HCHP