Brij Kishore Vs. Chhotelal Bidua & Ors.
EmailAppeal: Civil Appeal No. 2291 of 1992
Petitioner: Brij Kishore
Respondent: Chhotelal Bidua & Ors.
Apeal: Civil Appeal No. 2291 of 1992
Judges: A.P. MISRA & Y.K. SABHARWAL, JJ.
Date of Judgment: Aug 08, 2000
Head Note:
PRACTICE AND PROCEDURE
Constitution
Article 136 – Suit for declaration and injunction based on Will – Trial court rejecting Will and upholding defendant to be sister of deceased – In second appeal, said finding on Will affirmed, but no finding on relation of defendant being sister of deceased – Out of 5 substantial questions of law, 3 answered. Held that no useful purpose would be served in remanding the matter. The claim of plaintiff was based on Will which was rejected. Hence no merits in appeal. Findings of defendant being sister or not, declared to be of no consequence.
(Para 3)
JUDGEMENT:
ORDER
1. Heard learned Counsel for the parties.
2. The present appellant filed a suit in the Court of Civil Judge for declaration and injunction against defendant Sundarabai and respondent no. 9 on the ground that the plaintiff is the owner of the suit property as deceased Nathuram has executed a Will in his favour and further, he is the sole surviving male member of the family. Sundarabai has no title or interest in the property. The defendant Sundarabai contested by denying this claim. The case in the pleading is that she is the daughter of one Dhatole and sister of deceased testator. Her case is, she sold all this property to respondent nos. 1 to 4. The trial court dismissed the suit by holding that Sundarabai was the sister of Nathuram and the Will is not genuine as it is shrouded with suspicious circumstances. The petitioner filed an appeal. During the pendency Sundarabai died and her LRs were brought on record. The appeal was allowed and the trial court judgment was set aside. The Appellate Court held that the Will was duly executed, the execution and attestation has been proved and the petitioner being the sole surviving male member of the testator’s family, it will go to him as per the said Will. The Appellate Court further records that Sundarabai was not the sister of the testator Nathuram, hence not entitled to succeed or alienate the property. The respondent nos. 1 to 4 filed second appeal before the High Court. The High Court framed five substantial questions of law but seems to have decided only the first three and not the 4th and 5th. The High Court set aside the 1st Appellate Court judgment by holding that the Will was not genuine. When this appeal was filed in this Court, the appellant prayed that the question whether Sundarabai was the sister of the deceased Nathuram was not decided by the High Court though it framed such substantial questions of law. This Court issued notice in this appeal limiting to that question.
3. After hearing learned Counsel for the parties, we find, so far this question, whether Sundarabai was or was not the sister of the deceased Nathuram, seems not to have been decided by the High Court because once the plaintiff’s claim failed, based on the Will and that being the only basis, the decision on other question so far plaintiff-appellant is concered has no relevance, no useful purpose would be served in remanding the case for deciding the remaining question nos. 4 and 5. We find from the pleadings, the plaintiff has claimed his right only based on the Will which have become final against him, in view of the limited notice. Once claim of plaintiff failed to this property, no useful purpose would be served in remanding the case back to the High Court. Whether Sundarabai was or was not the sister could only be challenged by a person having semblance of any right in the property, of course not the appellants. Any finding by the courts below in this regard is hereby declared to be of no consequence. In other words, not to have any binding effect as against the respondents.
4. Accordingly, the present appeal has no merits and is dismissed. Costs on the parties.
1. Heard learned Counsel for the parties.
2. The present appellant filed a suit in the Court of Civil Judge for declaration and injunction against defendant Sundarabai and respondent no. 9 on the ground that the plaintiff is the owner of the suit property as deceased Nathuram has executed a Will in his favour and further, he is the sole surviving male member of the family. Sundarabai has no title or interest in the property. The defendant Sundarabai contested by denying this claim. The case in the pleading is that she is the daughter of one Dhatole and sister of deceased testator. Her case is, she sold all this property to respondent nos. 1 to 4. The trial court dismissed the suit by holding that Sundarabai was the sister of Nathuram and the Will is not genuine as it is shrouded with suspicious circumstances. The petitioner filed an appeal. During the pendency Sundarabai died and her LRs were brought on record. The appeal was allowed and the trial court judgment was set aside. The Appellate Court held that the Will was duly executed, the execution and attestation has been proved and the petitioner being the sole surviving male member of the testator’s family, it will go to him as per the said Will. The Appellate Court further records that Sundarabai was not the sister of the testator Nathuram, hence not entitled to succeed or alienate the property. The respondent nos. 1 to 4 filed second appeal before the High Court. The High Court framed five substantial questions of law but seems to have decided only the first three and not the 4th and 5th. The High Court set aside the 1st Appellate Court judgment by holding that the Will was not genuine. When this appeal was filed in this Court, the appellant prayed that the question whether Sundarabai was the sister of the deceased Nathuram was not decided by the High Court though it framed such substantial questions of law. This Court issued notice in this appeal limiting to that question.
3. After hearing learned Counsel for the parties, we find, so far this question, whether Sundarabai was or was not the sister of the deceased Nathuram, seems not to have been decided by the High Court because once the plaintiff’s claim failed, based on the Will and that being the only basis, the decision on other question so far plaintiff-appellant is concered has no relevance, no useful purpose would be served in remanding the case for deciding the remaining question nos. 4 and 5. We find from the pleadings, the plaintiff has claimed his right only based on the Will which have become final against him, in view of the limited notice. Once claim of plaintiff failed to this property, no useful purpose would be served in remanding the case back to the High Court. Whether Sundarabai was or was not the sister could only be challenged by a person having semblance of any right in the property, of course not the appellants. Any finding by the courts below in this regard is hereby declared to be of no consequence. In other words, not to have any binding effect as against the respondents.
4. Accordingly, the present appeal has no merits and is dismissed. Costs on the parties.
