PARSINI (DEAD) THROUGH LRS.versusATMA RAM AND ORS.

                                                                                     a;

A                      PARSINI (DEAD) THROUGH LRS.
                                    v.
                           ATMA RAM AND ORS.

                               FEBRUARY 22, 1996

B           [K. RAMASWAMY AND G.B. PATTANAIK, JJ.)

           Will-Genuineness of-Daughter laying claim over the property of
    fathe1~T1ial    court and appellate court denying the relief upholding the
    genuineness of the will-In High Cowt Single Judge setting aside the jitdgment
C   and granting the decree-Divisio11 Be11ch rest01i11g the decree of the trial
    cou~enuineness of will-Consideling all the facts a11d circumstances trial
    cowt a11d appellate cowt recording a fi11ding-Si11gle Judge not right i11
    reversing the finding offact-Division Bench had 1ightly gone into the question
    within the param~ters of law-No inte.1ference wmra_nted.

D           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1608 of
    1979.

         From the Judgment and Order dated 2.4.79 of the Punjab & Haryana
    High Court in L.P.A. No. 521of1975.

E           E.R. Kumar for P.H. Parekh for the Appellants

            Ms. S. Janani for the Respondents.

            The following order of the Court was delivered :

F        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.
G 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.

H           Learned counsel for the appellant, after elaborate preparation of the
                                        982
-                            P ARSINI v. A1MA RAM                          983

    facts, though of complicated nature, has contended that in the first litiga- A
    tion 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
                                                                                  B
    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, C
    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 said to be unwarranted. It is the case of the
    respondents that the Will was lost. Consequently, permission was given to D
    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 E
    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   F
    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 no_t right in reversing the finding of fact recorded by the trial
    Cour~ and the appellate Court. Thus, we consider that there is no substan-    G
    tial question of law warranting interference.

           The appeal is accordingly dismissed.

    G.N.                                                    Appeal dismissed.
                                                                                  H