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N.N. Pandey v. Smt. Chandreshwari - SECOND APPEAL No. 1343 of 1982 [2005] RD-AH 6659 (30 November 2005)


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Court No. 9.

Second Appeal No. 1343 of 1982.

Nar Narayan Pandey and another      ...   Defendants-Appellants


Smt. Chandreshwari and another       ...    Plaintiff-Respondents.

Hon. Sunil Ambwani, J.

Heard Sri Sharad Malviya learned counsel for the defendant-appellants , and applicants for restoration and for recalling the order dated 17.8.2005 by which this Second Appeal was dismissed for want of prosecution.

I find that the cause shown in paragraphs 2 to 4 of the affidavit of Lalji Dwivedi, Registered Clerk of Sri S.N. Verma. Senior Advocate, is sufficient.  The order dated 17.8.2005 is recalled and the Second Appeal is restored to its original number and was heard on merits.

Sri R.N. Bhatt appears for the respondents.

This Second Appeal arises out of an Original Suit No. 586 of 1978 suit for partition which was dismissed by the trial Court on 26.11.1980.  The Civil Appeal No. 19 of 1981 was, however, allowed by the District Judge on 23.3.1982.  The plaintiff claimed 10/16th share in the house in suit on the basis of a will executed by Smt. Sarswati Devi.  The suit was contested by the defendant on the ground that a Original Suit No.1155 of 1966 for partition of the house filed by Sarswati Devi, who had executed a will in favour of the petitioner was decreed and a preliminary decree was passed in which Sarswati Devi was declared to have 10/16th share in the house.  An application for impleadment filed by  Smt. Chandreswari wife of Jitendra Kumar, the plaintiff in that suit on the basis of the will dated 16.7.1976 was rejected.  The Trial Court held that the


will was not proved and was shrouded by doubtful circumstances.  It was held that Smt. Sarswati Devi used to put oly her thumb impression.  She was suffering from serious disease which incapacitated her from executing any document.  The appellate court, however, reversed the finding.  It discussed  each and every circumstances on which the will was disbelieved.  It found that the will in question was executed by Smt. Sarswati Devi.  The will was signed and that the testatrix had also put her thumb impression on it. The defendant-respondent did not request for comparison of the thumb impression by an expert. The second circumstance regarding the physical and mental condition of the testatrix was ot such on account of which she may not have been in a position to execute the will of her free and disposing mind. The medical prescriptions were not produced and that the Vaid Sri R.B. Dixit, who is alleged to have treated her, was not found to have maintained any patients register and could not correctly describe the physical condition of the testator.  His statement was disbelieved by the appellate court.  

With regard to the third circumstance namely  the recital of the will, and its contradiction in the oral statement of the petitioner, that she was properly  treated  by her in-laws and was found to be a minor discrepancy which was not sufficient to displace the bequest.

This Second appeal was admitted on substantial question of law as formulated in sub para (a) & (b) of para 1, sub paras (C) and (d) of para 2 and sub para (e) of para  3 of the memo of appeal .  Sri Sharad Malviya learned counsel for he petitioner submits that on the basis of the suit filed by Smt. Sarswati Pandey in which her share was found to be 10/16th and the fact that the suit was pending as the final decree had not been drawn, the present suit being a second suit by the legatee was not maintainable.  This plea was not taken either


in the trial court or in the appeal nor any substantial question of law was framed on this ground.  The issue by the Trial Court was decided against the defendant.  It was found by the trial court  that the application of the legatee for being impleaded as a party to the proceedings for final decree, was rejected without recording any finding on the will, and thus when she was not  impleated as party, the provisions of Section 11 C.P.C. will not be attracted.  These issues were not pressed in appeal, nor any cross objection was filed, to set aside the findings of the trial court.  The preliminary decree in Original Suit No. 1150 of 1966 will not bind Smt. Chandrawati and Smt. Mithilesh Kumari defendants-respondents as they were not impleaded as parties in that suit.  Their claim is based on the will dated 16.7.1976, which has been found to be validly executed in the later suit giving rise to this second appeal.

The substantial questions of law in this appeal (a)and (b) of para 1 are as such returned against the appellant.  With regard to sub para  ( c ) and (d) of  para 2,  I find that the appellate court has not committed any error of law in holding that the will was proved by the attesting witnesses, whose presence at the time of execution of the will, was established.   The evidence on her medical condition was disbelieved.  It was  for the appellant to  prove if he so alleged that the will did not bear the signature  and thumb impression of the testatrix.  

The last question also does not merit any consideration, as once the evidence was led by both the parties, the question of burden of proof lost its significance.

The Second Appeal is consequently dismissed with costs against the defendant-appellant.

Dt. 30.11.2005.



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