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PETITIONER: PARSINI (DEAD) THROUGH LRS.

       Vs.

RESPONDENT: ATMA RAM & ORS.

DATE OF JUDGMENT:       22/02/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  1996 AIR 1558            JT 1996 (3)   645  1996 SCALE  (2)831

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment dated April  2, 1979  of the  Punjab & Haryana High Court in L.P.A. No.521  of 1975. The Division Bench of the High Court has gone  into the  genuineness  of  the  Will  executed  by Bhagwana on  October 15, 1957. Bhagwana died on September 2, 1958. The  appellant laid  claim over  the property  of  her father. The  trial Court  and the appellate Court upheld the Will and  denied the  relief. Learned single Judge in Second Appeal No.451  of 1972 by order dated September 16, 1975 set aside the  judgment and  granted the  decree. In the Letters Patent Appeal  the Division Bench restored the decree of the trial Court  dismissing  the  suit.  Thus,  this  appeal  by special leave.      Learned counsel  for  the  appellant,  after  elaborate preparation of  the facts, though of complicated nature, has contended  that   in  the   first  litigation   between  the collaterals the  appellant, the  appellant was  not a party. The courts  below, having  held that  there is  no proof  of collateralship, ought  not to have gone into the genuineness of the  Will and  record a  finding  in  that  behalf.  Even otherwise, the  finding does  not find the appellant a party to the  earlier suit. In this suit, admittedly, however, the Will was  not produced  and one  of the  testators  was  not examined. Learned  single Judge of the High Court found that the execution  of the  Will  was  shrouded  with  suspicious circumstances.      The burden  is on  the propounder of the Will to remove all the  doubts regarding  the genuineness  of the Will and, therefore, the  Division Bench,  the trial Court as also the appellate Court were not right in cognising the Will. Having considered the  contention with reference to the evidence on record and  the findings  recorded by the Division Bench and also the  trial Court and the appellate Court, we are of the view that  the view  taken by  the Division  Bench cannot be

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said to  be unwarranted.  It is  the case of the respondents that the  Will was  lost. Consequently, permission was given to  lead  secondary  evidence  and  on  the  basis  thereof, secondary evidence was laid by the parties and the witnesses were examined  in proof of the Will and in rebuttal thereof. The trial  court and the appellate Court have considered all the facts and circumstances and have recorded a finding that the Will  was executed  by Bhagwana  in favour  of Atma  Ram respondent No.1.      On a  finding of  fact, though the learned single Judge could  go   into  the  question  of  law,  he  confined  his consideration in  a second appeal under a limited parameter. It would appear that the learned single Judge trenched as if he was the first appellate court and considered the evidence by himself  and came  to the conclusion that the genuineness of the  Will  had  not  been  proved.  The  Division  Bench, therefore, has  rightly gone  into the  question within  the parameters of law and held that the learned single Judge was not right  in reversing  the finding of fact recorded by the trial Court  and the appellate Court. Thus, we consider that there  is   no  substantial   question  of   law  warranting interference.      The appeal is accordingly dismissed.