PUNJAB AND HARYANA HIGH COURT
R.S.A. No. 2631 of 1996
Malkiat Singh Versus Kashmiri Lal, D/d. 25.8.1999
For the Appellant :- Mr. G.S. Bal, Advocate.
For the Respondent No. 1 :- Mr. P.K. Gupta, Advocate.
Will - Natural heirs - Execution of Will not being questioned by any natural heirs - A stranger not entitled to any natural or testamentary succession or any interest in the property, has no locus standi to challenge the Will . [Paras 5 and 8]
Cases referred :Harbans Lal v. Bhim Sain etc., 1977 P.L.J. 259.
Ishwardas v. State of Madhya Pradesh, (sic) 1975 S.C. 551.
Gurdip Singh v. Arjan Singh, 1992(2) RRR 402 (P&H).
Konga Ramaswami Iyer v. Ponnuswami alias Thumbayasami Manigarar, A.I.R. 1922 Madras 452.
S.S. Sudhalkar, J. - This regular Second appeal is filed by defendant- appellant in Civil suit No. 591 of 28.10.1988 filed by Smt. Sheelo predecessor-in-title of the present respondents against the appellant and Tirath i.e. husband of Smt. Sheelo. For ready reference, it will be proper to reproduce the pedigree-table which is as under :-
- Buta, Mangu, Malkiat Singh, Tirath Ram, Wife Sheelo, Rangu-widow Chando, Parsini, Chinti, Vidya.
3. I have heard learned counsel for the parties.
4. The first contention put forth by Mr. Bal, learned counsel for the appellant is that the will is not proved and, therefore, Sheelo had no right to file the suit. He has also argued that the suit could not be filed by Chando also because the property was already partitioned by Rango. Regarding the first point, he has argued that the original will has not been produced and certified copy has been produced and will has not been proved in the way as required by law. The lower appellate court held the will to be proved. Learned counsel also argued that the certified copy of the will has been produced late in the case and referred to the application dated 17.2.1994 given before the trial court in which the pleading, written statement and judgment in another suit were sought to be produced on record. The trial court allowed the said document to be produced on record. Considering all the contentions of the parties, the will has been held to be proved. The question now is whether when the original will is not before the court and when the attesting witnesses are examined, can the will be held to be proved. The learned counsel for the respondent relied on the judgment of an earlier case being case No. 573 of 1977 titled Santokho and others v. Tirath Ram and others, a copy of which has been produced in the trial court. In the said case defendants were Tirath Ram, Malkiat Singh sons of Mangoo, Smt. Sheela wife of Tirath Ram, Parshini daughter of Chando, Bhim Singh son of Vidya daughter of Chando. In that case, the validity of the will has been upheld.
5. Learned counsel for the appellant argued that the appellant was not served in that case and, therefore findings in that judgment are not binding on him. Whether the appellant was served or not would be a different question. One thing is clear that Parshini daughter of Chando, Bhim Singh son of Vidya daughter of Chando were the defendants in that case. If the will is held to be not proved, then the appellant does not get benefit of the same because he cannot be said to be the natural heir of Chando in view of his relation with Chando as per the pedigree table above. If the will is not proved, daughters of Chando would have been the heir and not the appellant. Therefore, the will having been proved in earlier case, the judgment in that case certainly will help the respondents in this case. In other words, even the will is held to be not proved the appellant does not inherit the property of Chando and, therefore this argument of learned counsel for the appellant cannot be accepted. Even if the certified copy of the will is ignored, the earlier judgment in which Chando and her heirs were parties can be said to be conclusive proof, so far as its execution is concerned.
6. Learned counsel for the appellant has cited before me the case of Harbans Lal v. Bhim Sain etc., 1977 P.L.J. 259. It is held in that case that when there was no cross-examination of the witness on a particular point of his examination-in-chief, it showed that other party accepted that part. However, that question need not be gone into at this stage in view of the above findings.
7. Learned counsel for the respondent has cited the cases of Ishwardas v. State of Madhya Pradesh, (sic) 1975 SC 551, Gurdip Singh v. Arjan Singh, 1992 PLJ 110 : 1992(2) RRR 402 (P&H), and Konga Ramaswami Iyer v. Ponnuswami alias Thumbayasami Maniggarar, AIR 1922 Madras 452. These authorities are on the point of res judicata. In the case of Ishwardas v. State of M.P. (supra) it has been held by the Supreme Court that once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. In the case of Gurdip Singh v. Arjan Singh (supra) it has been held that when in the earlier suit between the parties a specific issue is framed and the validity of the will was contested, it operated as res judicata. In the case of Konga Ramswami Iyer v. Ponnuswami (supra), it has been held that decision of a case between co-defendants is res judicata in later suit between co-defedants.
8. The present is not a suit between co-defendant Sheelo or her daughters or her natural heirs but Malkiat Singh appellant was co-defendant. It is tried to be stressed by learned counsel for the appellant that it was for the respondent to show that the appellant was served with the notice of the earlier suit. I may not enter into discussion on this point because, as mentioned above, the factum of will has been proved in between Sheelo and natural heir of Chando in the earlier suit and the present appellant has no right to challenge the will because even if he succeeds in challenging the will, he would not have got the share of Sheelo. Moreover as stated above, natural heirs of Chando are not challenging the will. Moreover, the earlier suit will be operated as res judicata in between Sheelo and natural heir of Chando.
9. The next point that comes up for my discussion is that whether because of alleged separation of Rango from the appellant as contended by him whether Chando or Sheelo had no right to ask for partition. It has been argued specifically that during the life time of his father, Rango separated from him in the partition between Malkiat and Tirath respondent. The house fell in the share of Malkiat Singh. However, even if Rango had separated from Buta during the life time to Buta, the interest of Buta was heritable and Rango as a natural heir could claim interest in it and Chando being his wife and Sheelo being testamentary heir of Chando had also rightly asked for her share.
10. In view of the above discussion, this appeal is without merit and is dismissed.