R.S.A. No. 256 of 2009 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 256 of 2009 (O&M)
Date of Decision : 2.3.2009
Sh. Ashok Kumar Pandhi & others
....Appellants
Versus
Ashwani Kumar Pandhi & another
...Respondents
CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
....
Present : Mr.Arun Palli, Senior Advocate with
Mr. T.N.S.Sarup, Advocate &
Mr.Sunil Garg, Advocate
for the appellants.
.....
MAHESH GROVER, J.
Delay of 3 days in filing the appeal is condoned.
This is plaintiffs second appeal directed against the
judgments of the learned trial Court dated 21.11.1998 and the first
Appellate Court dated 21.7.2008.
The appellants and respondent No.1 are descendants of
one Sham Dass Pandhi whose estate is in dispute. Appellants No.1
and 2 filed a suit for issuance of perpetual injunction restraining the
appellant No.3 and respondents from carrying on the business of rice
shelling, sale of paddy and agriculture products under the name and
style of M/s Krishna Rice Mills, Fatehgarh Churian along with
rendition of accounts upto 17.2.1989 and the profits earned by them
R.S.A. No. 256 of 2009 (O&M) -2-
after the death of Sham Lal Pandhi. It was alleged that said Sham
Dass Panchi was carrying on the partnership business of the said firm
and was having 35% share in the firm. He was allegedly having 35%
share in the immovable properties of the said firm and he died on
17.2.1989 leaving behind the parties to inherit his estate in equal
shares. It was further alleged that the deceased had a sum of
Rs.1,90,000/- to his credit in the books of account of the firm and
after his death the parties were entitled in equal shares to the
goodwill, assets and other properties of the firm as per the share of
their deceased father and were also entitled to the amount lying to his
credit along with the profits earned.
Upon notice, appellant No.3 and respondent No.2 filed
written statement admitting the claim of the plaintiffs/appellants
while the suit was contested by respondent No.1, who set up a Will
dated 31.12.1988 to contend that the same was to the exclusion of the
appellants and they are not entitled to the relief claimed.
Both the parties went to trial on the following issues :-
1. Whether the plaintiffs are entitled to the injunction
prayed for?OPP
2. Whether the plaintiffs are entitled to rendition of
accounts of the firm?OPP
3. Whether the plaintiffs have got no locus standi to file
the present suit?OPD
4. Whether the suit is bad for non-joinder of necessary
parties?OPD
5. Whether the suit is not maintainable in the present
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form?OPD
6. Whether the suit is properly valued for the purposes
of court fee and jurisdiction?OPP
7. Whether the suit is bad for mis-joinder of cause of
action?OPD
8. Whether he suit is barred u/O 2 Rule 2 C.P.C.?OPD
9. Whether Sham Dass executed a valid will in favour
of defendant No.3? If so its effect ?OPD
10. Relief.
On the basis of evidence before it, the learned trial Court
concluded that the Will in question was a valid piece of document
executed in favour of respondent No.1 and to the exclusion of the
appellants.
In appeal, the findings of the learned trial Court were
affirmed.
In the present regular second appeal, learned counsel for
the appellants has contended that there are numerous factors which
point out to the suspicious nature of the document. He contended that
the Will was executed on 31.12.1988 and there was interpolation in
the Will as the last digit in figure ‘1989’ was converted into ‘1988’
and that further late Sham Dass Pandhi was a propertied man and all
his previous transactions were scribed by a particular scribe who had
been rendering service to the deceased, but in so far as the Will in
question is concerned, it was scribed by a different scribe who even
did not recognize the testator of the Will. It was next contended that
there was no reason to exclude the appellants from the Will and that
R.S.A. No. 256 of 2009 (O&M) -4-
the Will being an unregistered document when viewed in this
perspective cannot be said to be worth reliance.
I have heard the learned counsel for the appellants and
have perused the impugned judgments.
Both the Courts below have concluded that the Will was a
valid piece of document. The testator, Shri Sham Dass Pandhi while
excluding the appellants from the purview of the Will had broadly
given the following reasons which have also been delineated in the
reasons given by the Courts below :-
(i) Sufficient money is spent by him on the marriage of
Ashok Kumar, Hari Krishan and Kanchan Bala.
(ii) He has also given property to all of them even after
their marriage.
(iii)All three of them started litigation with him, resultantly
dis-reputation for him.
(iv) All three of them are following their own way and are
not obeying deceased Sham Dass Pandhi.
There is no denial to the fact that the appellants were
litigating with the deceased which alone can be a sufficient factor to
oust a particular heir or a particular set of heirs from inheritance. The
mere fact that last digit occurring in figure ‘1989’ has been converted
into ‘1988’ will not render a document suspicious and not worthy of
reliance as this can be termed to be a simple human error and
similarly the fact that it was scribed by a different scribe and not by
the scribe who used to write documents for the testator, would ipso
facto be not termed to be a suspicious circumstance, if the Will has
R.S.A. No. 256 of 2009 (O&M) -5-
been proved by other means and by following the process of law. A
perusal of the impugned judgments shows that the contents of the
Will were proved and therefore it can safely be termed to be a
reflection of the testator’s desire.
No ground to interfere.
Dismissed.
2.3.2009 (MAHESH GROVER)
JUDGE
dss