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SA/14220/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 142 of 2008
With
CIVIL
APPLICATION No. 7677 of 2008
In
SECOND APPEAL No. 142 of 2008
=========================================================
KABHAIBHAI
AMBALAL PARMAR - Appellant(s)
Versus
PARMAR
NARSINHBHAI SHANKARBHAIHEIR OF DECEASED RAMIBEN W/O - Defendant(s)
=========================================================
Appearance
:
MR
NIKHIL S KARIEL for
Appellant(s) : 1, 1.2.1, 1.2.2, 1.2.3,1.2.4
MR NIRZAR S DESAI for
Defendant(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 23/07/2008
ORAL
ORDER
1. Heard
learned counsel for the parties.
2. The
appellants- original defendants in Regular Civil Suit No. 202 of
1995 have approached this Court under section 100 of the Civil
Procedure Code by way of this second appeal assailing the judgement
and order passed by the District Court, Anand in Regular Civil Appeal
No. 585 of 2006 dated 06.05.2008 as well as the order and judgement
dated 28.03.2001 passed by the trial court in Regular Civil Suit No.
202 of 1995 allowing the suit filed by the original plaintiff-present
respondent.
3. The
facts in brief giving rise to the present appeal are set out as
under:
3.1 It
is the case of the present appellants-original defendants that the
dispute between the parties is with regard to a parcel of land
situated at the Sim of Changa village bearing Revenue Survey No. 1360
admeasuring 1-26-27 hectares. It is the case of the appellants that
originally the said land along with few other parcels of land were
under the ownership of their late grandfather Bhatibhai who came into
ownership of the said land by way of tenancy rights. Bhatibhai and
his wife Ramiben had a female child name Jivatben who died in the
year 1973. Since then the two appellants being appellant no.2 &
3 were living with Bhatibhai and Ramiben. Bhatibhai died in the year
1983. It is the case of the appellants that thereafter, on
23.12.1987, Ramiben by way of a registered will had bequeathed all
her properties including the disputed properties in favour of four of
her grandsons i.e. the present appellants wherein it is mentioned
that the appellants are living with Ramiben and looking after her.
Ramiben died in the year 1993. After her death, when the appellants
started proceedings for mutating their names in the revenue record,
the present respondent had raised a dispute interalia contending that
Ramiben had executed another will on 25.12.1988 bequeathing the
present disputed parcel of land to the respondent.
3.2
The present respondent, initiated the suit being Regular Civil Suit
No. 202 of 1995 interalia contending that he had become the owner of
the suit property by virtue of the subsequent will and therefore the
defendants i.e. the present appellants may be permanently injuncted
from entering into the said property and disturbing the possession of
the plaintiff therein with regard to the said property. The suit
was allowed by the trial court which was carried in appeal by the
present appellants. The appellate court dismissed the said appeal
and therefore the present second appeal.
4. Mr.
Nikhil Kariel, learned advocate appearing for the appellant has
submitted the substantial question of law that whether the learned
lower courts have failed to appreciate the most vital issue in this
dispute i.e. the second will could not gain any credence or priority
over the first will since it was registered after the life time of
the Testator whereas the first will was registered by the Testator
during her life time and that whether the statements of person
identifying the thumb impression of the Testator in the will and
witnesses in the will would be enough to prove the genuineness of the
second will in absence of any other sufficient evidence.
4.1 Mr.
Kariel has submitted that the order passed by the trial court is
erroneous and that the trial court failed to take into consideration
the fact that the second will produced by the original
plaintiff-present respondent is suspicious as there was no reason for
Ramiben to have bequeathed the piece of property to the present
respondent-original plaintiff.
5. As
a result of hearing and perusal of records, it is quite evident that
the trial court has gone into the evidence in detail and more
particularly ex. and has found sufficient reasons to allow the suit.
The courts below have taken into consideration the relevant
provisions of law in order to come to a conclusion whether the second
will executed by Ramiben is suspicious or not inasmuch as the court
has observed that as per the relevant provisions of law all the
requirements of the execution of will are proved by the plaintiff.
By virtue of the said will, the plaintiff has become the owner of the
property bearing survey no. 1360. Registration of a will is not
necessary and merely because the will was registered subsequent to
the death of Ramiben cannot go to show that it is a bogus one. The
will of the plaintiff is supported by the witnesses of the plaintiff.
No other evidence is placed on record to take a view contrary to the
one taken by the courts below. I am in complete agreement with the
concurrent findings of both the courts below. No substantial
question of law is raised in the present appeal for consideration.
In that view of the matter, this Court has no option but to dismiss
the appeal.
6. Accordingly,
this appeal is dismissed. No order as to costs.
7. In
view of the order passed in Second Appeal, this civil application
shall not survive and is therefore disposed of accordingly.
(K.S.
JHAVERI, J.)
Divya//
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