Krishan Kumar Agarwal @APPELLANT@Hash Mohan Lal Agarwal

The instant first appeal has been preferred against the judgment and decree dated 12.12.2008 passed by the learned Additional District Judge (Fast

Track) No.1, Dholpur (hereinafter ""the trial court"") whereby the suit filed by the plaintiff-appellant for partition of joint immovable properties was

dismissed.

FACTS IN BRIEF

The facts giving rise to this first appeal can be briefly stated as thus: That the plaintiff-appellant filed a suit for partition of joint immovable properties

against the defendants-respondents. It is the case of the plaintiff-appellant that the defendants-respondents No.1 & 2 are his real brothers and

together, they are the legal heirs of his father late Sri Kailash Chand, who passed away on 12.05.1996. The father of the plaintiff and defendants

owned several movable and immovable properties. The details of the property which form the subject-matter of the appeal are mentioned in Para

2(A) of the plaint. It was stated in the plaint that since the plaintiff is one of the legal heirs with defendants No.1 & 2, he is entitled to 1/3rd share in

the said properties and now he wants to get the properties partitioned by meats and bounds so as to get separate and exclusive possession over the

1/3rd share. On the basis of these averments, the plaintiffappellant prayed that the properties, the details of which have been given in Paragraph 2(A)

of the plaint, be partitioned by meats and bounds and he be put in separate and exclusive possession of his 1/3rd share.

The defendants-respondents No.1 & 2 resisted the suit by filing written statement. While the factum of their father having purchased the properties

mentioned in the plaint was admitted, it was averred in the written-statement that the defendantsrespondents No.1 & 2 were the sole owners of the

said properties by virtue of a Will allegedly executed by their father on 30.07.1995. It was further stated that as per the said Will, the plaintiff-appellant

has no interest, right or concern with the properties in dispute. Further, some of the properties left behind by their father were sold by them as per the

direction given in the Will so as to clear the outstanding dues that their father owed to some creditors. It was also stated in the written statement that

the plaintiff-appellant was actually given comparatively more share in the properties of their father, which he occupied forcefully. The defendants-

respondents also raised objections regarding the sufficiency of the court fees. Based on the said averments, they prayed for the suit to be dismissed.

Since a new fact regarding the existence of the Will allegedly executed by Late Sri Kailash Chand was brought on record, the plaintiff-appellant

sought the permission of the court to file a rejoinder. However, the learned trial court vide its order dated 03.05.2007 allowed the application and

instead of permitting the plaintiff-appellant to file a rejoinder, allowed him to incorporate additional facts in the plaint by way of an amendment. The

plaintiff-appellant thus, amended the plaint and incorporated the additional facts through which he denied the execution as well as the existence of any

Will. In order to further bolster his averments, he stated that a joint application was filed by the plaintiff and defendants No.1 and 2 for obtaining

succession certificate in respect of Rupee 50,000 deposited by their father with the State of Bank of India and also in respect of Rupees 2,00,000

which was the amount of final bill for the work that Late Sri Kailash Chand had done for PWD, Dholpur. During the pendency of the succession

certificate proceedings, no such Will was disclosed by the defendants. On the contrary, Ramesh Chand (Defendant No. 2 herein) in his statement

dated 10.09.1996 admitted that no Will had been left by their father i.e. Late Sri Kailash Chand. Noting these statements, the Succession Certificate in

the name of all three sons i.e. the plaintiff-appellant and defendants-respondents, was finally issued by the learned District Judge, Dholpur vide his

order dated 27.09.1996. Reference was also made to certain arbitration proceedings wherein all the three brothers had approached the arbitrator and

the outstanding dues that the PWD owed towards Late Sri Kailash Chand were jointly taken by them.

In the amended plaint, the plaintiff also mentioned the fact regarding portion ""B"" of the property having been sold by the defendants-respondents

No.1 and 2 to defendants-respondents No.3 and 4.

To counter the above averments, the defendants-respondents No.1 and 2 contended that at the time of institution of the arbitration proceedings, the

Will was not in their knowledge and the same came to their knowledge only after the instant suit was instituted.

Defendants No.3 and 4 also their written statements and stated that they are bonafide purchasers for valuable consideration of some part of the

disputed properties and after the purchase, they have also raised construction over the same.

On the basis of the pleadings, the trial court framed following issues:-

1- vk;k oknh o izfroknh la[;k 1 o 2 ds firk pkS-dSyk'kpUn us rkjh[k 30-07-95 dks olh;r fu""ikfnr dh o olh;r ds vk/kkj ij ifjf'k""B **v** dh lEifRr izfroknh

la[;k 1 o 2 ds LokfeRo dh gS \ &&izfroknh 1 o 2

2- vk;k izfroknh la[;k 3 o 4 ds i{k esa izfroknh la[;k 1 o

2 }kjk fd;s c;ukesa oknh o izfroknh la[;k 1 o 2 ds e/; gq, ckgeh caVokjs ds vk/kkj ij oknh dh lgefr ls gq, gSa\

&&izfroknh 3 o 4

3- vk;k U;k;'kqYd de vnk fd;k gS \ &&izfroknh 1 o 2 4- vk;k oknh }kjk vius vkf/kiR; dh lEifRr mYysf[kr olh;r ds iSjk ua-1 esa of.kZr nqdku] edku o

nqdku esa yxh /ku lEifRr ds ckjs esa nks nqdku gyokbZ [kkus dh muds firk }kjk fdjk;s ij yh x;h o l;a qDr mi;ksx miHkksx dh jgh rFkk olh;r ds iSjk la[;k

4 esa mYysf[kr d`f""k Hkwfe dk mYys[k okni= esa ugha fd;k blls okni= [kkfjt fd;s tkus ;ksX; gS \ &&izfroknh 1 o 2 5- vuqrks""k \

Both the parties adduced oral as well as documentary evidence.

 Thereafter, hearing both the sides, the learned court dismissed the suit of the plaintiff-appellants vide judgment and decree dated 12.12.2008. Hence

the instant first appeal.

SUBMISSIONS BY COUNSELS

Sri Sudesh Bansal, learned counsel appearing on behalf of the plaintiff-appellant contended that the learned trial court failed to frame necessary

issues, therefore, the whole trial is vitiated. Only on this ground, the appeal should be allowed and the matter may be remanded to trial court for fresh

decision. It is submitted that the primary defence of the defendants-respondents is the Will (Ex.A/1) that was allegedly executed by Late Sri Kailsah

Chand on 30.07.1995. However, the existence and execution of the said Will shrouded in suspicion. It is submitted by Mr. Bansal that the defendants-

respondents have nowhere in their written statement claimed the Will allegedly executed on 30.7.1995 to be a handwritten/holographic Will. Further,

the factum of the existence of the said Will was disclosed only after the institution of the suit, that too after the defendants-respondents had taken

adjournments thrice for filing their written statement. The inordinate delay of more than twelve years is a huge chasm in the way of the defendants-

respondents and has not been overcome by laying the bridge of any suitable explanation. The fact that the Will was brought to the knowledge of the

court after taking three adjournments further shows that the Will is forged and fabricated and was nothing but an afterthought to sway the mind of the

court towards dismissing the suit.

The counsel further submitted that in the rejoinder, the plaintiff-appellant has explicitly stated that even in other legal proceedings, especially the

proceedings related to Succession Certificate, there was no whisper of any such will. Keeping this in account, it is abundantly clear that the plaintiff-

appellant vehemently denied the existence of the Will and the finding of the trial court on Issue No.1 that the plaintiff never denied the Will absolutely

perverse and against the material on record. Even in his testimony the plaintiff Krishan Kumar (P.W.1) stated unequivocally that he was acquainted

with the hand-writing of his father and the Will (Ex.A/l) was not in the hand-writing of his father. The existence of the Will was denied by him in his

crossexamination as well. The counsel further submitted that not only were the defendants-respondents able to satisfactorily explain the delay in

disclosing the Will, they also failed to disclose and prove when, how and from what source they got to know about the Will.

Furthermore, impugning the oral evidence of the defendantsrespondents, Mr. Bansal contended that Mohan Lal (D.W.1) admitted in his cross-

examination that the Will was not written in his presence. He could not even remember the date on which the Will was allegedly written. Censuring

the testimony of Ram Narain Bansal (D.W.2), Mr. Sudesh Bansal contended that the statements of this witness do not satisfy the essential

requirement of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. This witness is said to be a close family friend of

the Late Sri Kailsah Chand and the alleged Will was written by Sri Kailsah Chand in his presence but contrary to human nature, this witness failed to

disclose the existence of the said Will to the sons of late Sri Kailash Chand even after his death. Mr. Bansal further contended that the burden to

prove the alleged Will being a holographic Will was on the defendants-respondents and since there were too many suspicious circumstances, the onus

lies on the person who claims the genuineness of the Will to explain such suspicious circumstances to the satisfaction of the court.

Regarding the theory developed by the defendants-respondents that the property described in Schedule-B was sold to clear the outstanding dues

and loan of Late Sri Kailash Chand, Mr. Banal contended that the said theory is absolutely concocted as neither any details of any outstanding dues

nor any accounts have been produced on record. So far as issue no. 2 related to the oral partition of the properties left by late Sri Kailash Chand is

concerned, the issue has been framed on the basis of the defence of defendants-respondents No.3 and 4 while there is no such defence in the written-

statement of defendants-respondents 1 and 2. Therefore, both the sale-deeds (Ex.18 and 19) which were executed after the institution of suit for

partition are hit by the principles of lis-pendence.

Finally, challenging the compromise said to have been arrived at between the parties, Mr. Bansal submitted that the some is in dispute as the

appellant Krishan Kumar did not appear in person and did not agree to the terms of the compromise. The compromise does not even relate to the

property in dispute or the oral partition of the properties or the issue of Will which is in dispute in the instant case. Neither the mediator nor the court

has attested the compromise.

The learned counsel for the defendants-respondents Dr. PC Jain on the other hand, supported the judgment passed by the trial court. Dr. Jain

submitted Sri Kailash Chand passed away on 12.05.1996 and the Will came into existence on 30.07.1995. The defendant-respondents came to know

about the Will on 28.02.2007 and despite disclosing the existence of the Will to the plaintiff, the plaintiff has nowhere denied that the said Will was not

written in the hand-writing of late Shri Kailash Chand. Referring to the evidence of the parties, Dr. PC Jain contended that since the Will is a

holographic Will, it is a speaking document from the mouth of the deceased which tells the whole truth of his life, his good and bad experiences and

also contains the advice to his sons. To prove the genuineness of the Will, Dr. Jain relied on the evidence of Mohan Lal (D.W.1), Ram Narain (D.W.

2) and Bhagwati Prasad (D.W. 3). Dr. Jain contended that the evidence of all these witnesses was unshaken and not rebutted.

Regarding the proving of holographic Wills, reliance was placed on a number of judicial pronouncements including a Constitution Bench of the

Hon'ble Supreme Court in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee AIR 1964 SC 529. The said decision was relied on by Dr. Jain to

contend that a Holographic Will stands on a different footing than ordinary Wills and there could be a strong presumption of it being duly executed and

attested. If there is hardly any suspicious circumstances attached to the Will, it will require ""very little"" evidence to prove due execution and attestation

of such a Will.

Lastly, it was argued by Dr. P.C. Jain, learned counsel for the respondents that the matter was referred to Mediator and parties were present there.

They have entered into a compromise, therefore, the matter may kindly be disposed of in terms of the aforesaid compromise.

I have heard the counsels and perused the material on record.

So far as compromise is concerned, it is revealed that the matter was referred to Mediator, Rajasthan High Court, Jaipur where a compromise

was arrived at. But the said compromise was not attested by the Court. Since, the said compromise was not attested by the court as per Order 23

Rule 3 CPC, it will not be binding on the parties. All the applications, which are pending in this regard, stand disposed of.

Though detailed arguments have been advanced from both sides, I do not think necessary to deal with them.

I think this is a case where I am bound to exercise the powers under Order 41 Rule 23A C.P.C. The appellate court may remit the case back to the

trial court if the trial court from whose decree the appeal is preferred has adjudicated the matter on merits and the said decree is set aside in appeal

and the appellate court considers the re-trial necessary, the latter court shall have the same powers as are enunciated in order 41 Rule 23. Further, I

do not think that the evidence placed on record is sufficient enough to finally adjudicate the matter on merits after resettling the issues, as required

under Order 41 Rule 24 C.P.C. Hence, this court deems it proper to proceed under Rule 23A C.P.C.

In the instant case, the learned trial court omitted to frame not only one but also several material issues, which in my opinion not only go to the

roots of the matter but are also essential for fair adjudication of the dispute. Thus, I deem appropriate and necessary to exercise powers of remand

under Order 41 Rule 23A, for the reasons mentioned hereunder:-

I. The first reason as to why this court was compelled to exercise powers under Order 41 Rule 23A is that the learned trial court omitted to frame any

issue related to partition. As is clear from the pleadings, the suit was instituted by the plaintiff-appellant for getting certain immovable properties

partitioned, which he claimed to be joint Hindu Family properties. However, no issue has been framed by the trial court as regards this point. In the

absence of an issue as to whether the plaintiff was entitled to seek the partition of the property and claim 1/3rd share therein, the suit could not and

should not have been decided. Because of this glaring error, the plaintiffappellant has been severely prejudiced

II. Another essential issue which the trial court omitted to frame issue on is regarding the contentions contained in Paragraph 2 (a) of the Written

Statement. As per the said Paragraph, the defendants-respondents sold the property mentioned in Schedule-B to carry out the directions in the Will

allegedly made by their father on 30.7.1995. The plaintiff-appellant on the other hand did not only deny the existence of the Will but also raised

objections regarding any outstanding dues that his father Late Kailash Chand owed to creditors. For the want of any issue related to the property

mentioned in Schedule B, no finding has been given regarding the point as to whether the property so mentioned in this schedule could also be

partitioned or not.

III. The third point the trial court has failed to frame any issue is regarding the partition that has already allegedly been done in pursuance of the Will

dated 30.07.1995 as per the averments contained Paragraph 11 of the Writtenstatement. This also a moot contention between the parties and an issue

which goes to the roots of the matter. IV. Another bone of contention between the parties is the other properties that Late Kailsah Chand owned and

have allegedly been taken in possession by the plaintiffappellant. Since, the said properties have not been included in the partible estate, the defendants

have contended that the suit itself was not maintainable. An issue had to be framed regarding this as well since a suit for partial partition is not tenable

in the eyes of law.

V. Lastly, the trial also omitted to frame an issue as to whether defendants-respondents No.3 and 4 were bona fide purchasers for valuable

consideration. This issue also needed to be framed and adjudicated upon.

In view of the above, this court deletes all the issues framed by the learned trial court and resettles the following issues:-

1- vk;k ifjf'k""V v o c esa of.kZr lEifRr of.kZr pj.k la[;k&2 o 2¼,½ okni= esa oknh ,oa izfroknh dze 1 o 2 dk izR;sd dk 1@3&1@3 fgLlk gS vkSj

oknh vius 1@3 fgLls dk caVokjk djokdj ,dkfUrd dCtk izkIr djus dk vf/kdkjh gS \

&&oknh

2- vk;k LoxhZ; dSyk'kpUn th dh olh;r fnukad 30-07-1995 ds }kjk ifjf'k""V&v esa of.kZr lEifRr esa izfroknh dze 1 o 2 dks 1@2&1@2 fgLlk izkIr gqvk

vkSj ifjf'k""V&c esa of.kZr lEifRr dtkZ pqdkus ds fy, izLrkfor gS \ &&izfroknh la[;k 1 o 2

3- vk;k firkth dh olh;r }kjk mHk;i{kdkjku dks ;Fkk laHko fgLlk fn;k x;k gS ftlesa oknh dks izfroknhx.k ls vf/kd fgLlk izkIr gqvk gS tks oknh }kjk

tcjnLrh izkIr fd;k x;k gS lks olh;r ds rkcs oknh dk okn lO;; fujLr fd;s tkus ;ksX; gS \

&&izfroknh la[;k 1 o 2

4- vk;k izfroknh 1 o 2 us firk dh olh;r ds eqrkfcd ifjf'k""V&c esa of.kZr lEifRr izfroknh la[;k 3 dks fodz; i= fnukad 08-05-2007 ds tfj;s ,oa izfroknh la[;k

2 us izfroknh la[;k 4 dks fodz; i= fnukad 24-03-2007 ds tfj;s vius oS/k LoRoksa ds rgr fodz; dh gS vkSj mDr fodz; firk ds _.k dks pqdkus ds fy,

ln~HkkoukiwoZd fd;k tkdj izkIr /ku dks _.k pqdkus esa vnk fd;k gSA ftlds fy, oknh leku :i ls mRrjnk;h gS A izfroknh la[;k 1 o 2 ds lkFk oknh Hkh bu

fodz;i=ksa ls iw.kZr;k ikcUngS \

&&izfroknh la[;k 1 o 2

5- vk;k izfroknh la[;k 1 o 2 }kjk izfroknh la[;k 3 o 4 ds gd esa nksuksa fodz;i=ksa ds tfj;s] lHkh HkkbZ;ksa ds e/; ckgeh rkSj ij caVokjk lEcU/kh

le>kSrk gksdj muds vf/kdkj] fgLls rFkk ,DlDyqfto its'ku esa vkbZ gqbZ tk;nkn dk fodz; fd;k gS tks lgh o tk;t gS rFkk izfroknh la[;k 3 o 4 us oknh dh

lgefr ds i'pkr~] fcuk fdlh vkifRr ds tk;nkn izfroknh la[;k 1 o 2 ls [kjhnh gS vkSj os ln~Hkkfod dzsrk gSa \

&&izfroknh la[;k 3 o 4

6- vk;k oknh us tokcnkos dh fo'ks""k vkifRr;ksa esa of.kZr 13] 14 o 15 ds eqrkfcd oknh ds vkf/kiR; esa vkbZ lEifRr;ksa dk [kqyklk okni= esa ugha fd;k

gS vkSj okni= esa bu lEifRr;ksa dks fNik;k gS lks nkok oknh fujLr fd;s tkus ;ksX; gS \

&&izfroknh la[;k 1 o 2

7- vk;k okn dkj.k ds vHkko esa nkok fujLr gksus ;ksX; gS \

&&izfroknh la[;k 1 o 2

8- vk;k oknxzLr lEifRr dk ewY;kadu U;wu fd;k x;k gS rFkk U;k;'kqYd vfr U;wu fn;k gS] bl dkj.k i;kZIr U;k;'kqYd ds vHkko esa nkok pyus ;ksX;

ugha gS \ &&izfroknh la[;k 1 o 2 9- vuqrks""k \

Consequently, the appeal is allowed and the matter is remanded back to the trial court for deciding the matter afresh after giving an opportunity to

both the sides to adduce additional evidence on the issues resettled by this court. The parties are directed to remain present before the trial court on

03.08.2018.

Since the matter has been pending for a long time, the trial court is directed to decide the matter as expeditiously as possible.

There shall be no order as to costs.