Smt. Kauri and others vs Garibu

Alok Singh, J.—Plaintiff-appellants have preferred present second appeal u/s 100 of the Code of Civil Procedure, challenging the judgment and decree dated 22.11.1988 passed by learned First Appellate Court i.e. Additional District Judge, Ropar, in Civil Appeal No. 104/19.11.1987 titled ''Garibu vs. Smt. Kauri and others'', thereby allowing the appeal and dismissing the suit filed by the plaintiff-appellants. Brief facts of the present case, inter alia, are that Prabhu and Jagta were two brothers; after the death of Jagta, Kasturi filed a civil suit for joint possession against her own uncle Prabhu on the allegations that she was the daughter of Jagta and was entitled to succeed to his half of the share along with Prabhu; suit was contested by Prabhu, claiming therein that Kasturi was not the daughter of Jagta and he, being the brother of Jagta, was entitled to succeed to his estate. Suit was decreed by the trial Court. Learned trial Court has found that Kasturi is daughter of Jagta and consequently had inherited entire estate of her father Jagta and has half of the share with Prabhu in the property in question. First appeal filed by Prabhu against the judgment and decree passed by learned trial Court was dismissed. Prabhu thereafter approached this Court by way of filing regular second appeal; during the pendency of second appeal before this Court, Prabhu had expired on 27.5.1980. No application for substitution of legal heirs of Prabhu was moved before this Court, therefore, appeal stood abated and was dismissed as such; application for setting aside the abatement was filed by the plaintiff-appellants herein on the ground that they were the daughters of said Prabhu. In the meantime, Kasturi had also died, therefore, Garibu, defendant-respondent had filed an application for seeking substitution of his name in place of Kasturi as her legal heir on the basis of registered ''Will'' executed by his wife Kasturi on 30.5.1973. Plaintiff-appellants have withdrawn their application under Order 22 Rule 3 CPC. As a consequence thereof, the application of the present appellants was dismissed and appeal remained dismissed as abated. Thereafter, plaintiffs have filed present suit saying that since Kasturi had inherited property from her father Jagta, therefore, after the death of Kasturi, plaintiffs, being daughters of Kasturi''s real uncle Prabhu, are the only legal heirs to inherit the estate of Kasturi as per Section 15(2)(a) of the Hindu Succession Act. On the other hand, Garibu (respondent herein) preferred his written statement saying that plaintiffs are not the daughters of Prabhu and they should be put to the strict proof thereof. It has further been pleaded by Garibu, defendant-respondent, that he is the husband of Kasturi and Kasturi had executed a ''Will'' in his favour on 30.5.1973, therefore, he is entitled to inherit the estate left by Kasturi.

Learned trial Court has dismissed the suit vide judgment and decree dated 1.12.1986. However, appellate Court vide impugned judgment dated 22.11.1988 has allowed the appeal and dismissed the suit filed by plaintiff-appellants having observed that ''Will'' in favour of Garibu respondent stands proved.

Feeling aggrieved from the judgment and decree passed by First Appellate Court, plaintiff-appellants have approached this Court by way of present appeal.

I have heard learned counsel for the parties and have perused the record.

To exercise jurisdiction u/s 100 CPC, this Court is duty bound to find out as to whether any substantial question of law arises for consideration by this Court. To find out as to whether any substantial question of law arises, few facts need to be narrated.

Undisputedly, Jagta and Prabhu were the real brothers. Undisputedly, Kasturi, claiming herself to be daughter of Jagta, had filed civil suit against her own uncle Prabhu after the death of her father Jagta on 20.1.1968 seeking half share in the property saying that being the daughter and only heir of Jagta, she has inherited the share of Jagta, her father. Undisputedly, suit was hotly contested by Prabhu, father of the present plaintiff-appellants, contending that Kasturi was not the daughter of Jagta. However, suit was decreed by learned trial Court and first appeal therefrom was also dismissed. During the pendency of the appeal, Prabhu, father of the present plaintiff/appellants, died and meanwhile Kasturi, wife of respondent-defendant, also died. Undisputedly, present appellants, claiming themselves to be daughters of Prabhu, had moved an application seeking substitution as appellants in the second appeal and Garibu, present respondent-defendant, had also moved an application claiming himself to be the only legal heir of Kasturi, his wife, on the basis of registered ''Will'' dated 30.5.1973. Undisputedly, application moved by the present plaintiff-appellants, seeking substitution, was dismissed as withdrawn and second appeal filed by Prabhu remained dismissed as abated. Undisputedly, thereafter present plaintiff-appellants have filed present suit claiming themselves to be daughters of Prabhu and entitled to inherit estate of Kasturi as per Section 15(2)(a) of the Hindu Succession Act. Learned First Appellate Court after appreciation of the evidence has recorded clear cut finding of fact that ''Will'' dated 30.5.1973 executed by Kasturi in favour of her own husband Garibu defendant-respondent stands proved.

It is not denied that Garibu is the husband of Kasturi. It is also not denied that Kasturi was having litigation against her own uncle Prabhu wherein status of Kasturi as daughter of Jagta was highly disputed by her own uncle Prabhu, therefore, it is quite natural that Kasturi would have executed ''Will'' dated 30.5.1973 in favour of her own husband Garibu defendant.

In the present case, Kasturi had no issue, therefore, naturally to protect her property, received after long litigation against her own uncle, ''Will'' must have been executed by Kasturi in favour of Garibu defendant-respondent. Moreover, execution of ''Will'' stands proved before the First Appellate Court. To prove the ''Will'', DW2 Sajjan Singh, DW3 Bhajan Singh and DW4 Bakhtawar Singh were produced before the trial Court, who have proved the execution and attestation of the ''Will''. Learned trial Court has disbelieved the ''Will'' only on the ground that ''Will'' contains left hand thumb impression of Kasturi while there should have been right hand thumb impression. Learned First Appellate Court has rightly observed that there is no rule that in all circumstances lady should put only right hand thumb impression on the documents being executed by her. Since learned First Appellate Court has recorded clear cut finding of fact after appreciation of evidence, therefore, finding of fact recorded by learned First Appellate Court should not be disturbed by Second Appellate Court in the absence of any substantial question of law.

In the present case, no substantial question of law arises for consideration by this Court. Therefore, no interference is called for. Dismissed.