Avinash Chander Bhatura vs Vishwa Kumari
2023 Latest Caselaw 1289 P&H

                           RSA No.1550 of 1991                                                         -1-

                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH

                           321                                           RSA No.1550 of 1991 (O&M)
                                                                         AND XOBJC-20-C-1992
                                                                         Reserved on 12.01.2023
                                                                         Date of Decision : 20.01.2023

                           Avinash Chander Khatura                                           ....Appellant

                                                             VERSUS

                           Vishwa Kumari                                                   ....Respondent


                           CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                           Present :    Mr. Rajinder Goel, Advocate for the appellant.

                                        Mr. Naresh Prabhakar, Advocate for the respondent.

                           ALKA SARIN, J.

The present regular second appeal has been preferred by the

defendant-appellant against the judgment and decree dated 06.10.1988

passed by the Trial Court and the judgment and decree dated 05.01.1991

passed by the lower Appellate Court. The plaintiff-respondent has preferred

cross-objections against the decision by the lower Appellate Court.

The brief facts relevant to the present lis are that one Sham

Dass was the owner of 1/5th share in agricultural land measuring 409K - 8M.

The plaintiff-respondent filed a suit for declaration with consequential relief

of joint possession averring that she was the widow of Sham Dass and that

the defendant-appellant had obtained a decree dated 12.02.1981 against

Sham Dass qua the suit land which decree was illegal, null and void and

fraudulent and not binding on the plaintiff-respondent. The suit was

contested by the defendant-appellant who took the plea that on 02.11.1976

Sham Dass had executed a Will in his favour and thereafter a family

settlement had taken place on the basis on which the judgment and decree TRIPTI SAINI 2023.01.20 17:48 I attest to the accuracy and integrity of this document Chandigarh

dated 12.02.1981 had been passed in his favour. The defendant-appellant

took the stand that the plaintiff-respondent was not the legally wedded wife

of Sham Dass and that she had not challenged the Will dated 02.11.1976.

Replication was filed by the plaintiff-respondent.

On the basis of pleadings of the parties the Trial Court framed

as many as thirteen issues. The Trial Court vide judgment and decree dated

06.10.1988 partly decreed the suit of the plaintiff-respondent. The

judgement and decree dated 12.02.1981 was held not to be a valid decree,

the Will dated 02.11.1976 was upheld and the plaintiff-respondent was held

entitled to get maintenance allowance from the defendant-appellant @

Rs.1,000/- per month till her lifetime. Though while deciding issue no.1 the

Trial Court held that the plaintiff-respondent was not the owner of 1/5th

share of the suit land, in the relief paragraph it was held that she was owner

of 1/5th share of the suit land.

Aggrieved by the said judgment and decree dated 06.10.1988

both the defendant-appellant as well as the plaintiff-respondent filed two

separate appeals. Vide judgement and decree dated 05.01.1991 the lower

Appellate Court partly accepted the appeal of the defendant-appellant and

held that the plaintiff-respondent was not the owner of 1/5th share of the suit

land and that the judgement and decree dated 12.02.1981 was binding on the

plaintiff-respondent. The finding of the Trial Court regarding the plaintiff-

respondent being entitled to get maintenance allowance from the defendant-

appellant @ Rs.1,000/- per month till her lifetime was upheld. The appeal

filed by the plaintiff-respondent was dismissed. Aggrieved by the judgment

and decree passed by the Courts below holding the plaintiff-respondent

entitled to get maintenance allowance from the defendant-appellant @ TRIPTI SAINI 2023.01.20 17:48 Rs.1,000/- per month, the present regular second appeal has been preferred I attest to the accuracy and integrity of this document Chandigarh

by the defendant-appellant. The plaintiff-respondent has filed cross-

objections challenging the upholding of the Will dated 02.11.1976 and the

quantification of maintenance at only Rs.1,000/- per month.

Learned counsel for the defendant-appellant has contended that

there being no prayer in the plaint for grant of maintenance the Courts below

have erred in holding the plaintiff-respondent being entitled to it @

Rs.1,000/- per month. He also argued that the plaintiff-respondent was not

the legally wedded wife of Sham Dass and thus was not entitled to the grant

of any maintenance.

The counsel for the plaintiff-respondent in support of his cross-

objections argued that the Will dated 02.11.1976 was a result of fraud and

was a forged document. It was also submitted that the maintenance ought to

have been awarded @ Rs.2,000/- per month.

Heard learned counsel for the parties.

The defendant-appellant had set-up the Will dated 02.11.1976

in his written statement. Both the Courts below have upheld the said Will.

The lower Appellate Court has found that the Will contains a recital that the

defendant-appellant would be legally bound to maintain the plaintiff-

respondent. Once the Will dated 02.11.1976 has been upheld in favour of the

defendant-appellant he cannot wriggle out of the obligations put on him in

the same Will about maintaining the plaintiff-respondent. The counsel for

the defendant-appellant has not been able to dislodge the findings recorded

by the Courts below that the plaintiff-respondent was the legally wedded

wife of Sham Dass. The arguments raised on behalf of the defendant-

appellant are against the concurrent findings of fact recorded by both the

Courts below and are not supported by the evidence available on the record. TRIPTI SAINI 2023.01.20 17:48 The present regular second appeal is without merit and is dismissed. I attest to the accuracy and integrity of this document Chandigarh

Coming to the cross-objections filed by the plaintiff-respondent,

the same are also without any merit. The plaintiff-respondent did not make

any prayer in her suit for declaring the Will dated 02.11.1976 as being null

and void. The said Will has been held to have been duly proved and has

been accepted by both the Courts below. Counsel for the plaintiff-respondent

has been unable to convince this Court to hold that the said Will was

fraudulent or forged. Further, the plaintiff-respondent has not brought any

evidence to the notice of the Court from which it could be discerned that the

maintenance awarded to her is less and ought to have been Rs.2,000/- per

month. The judgement of the lower Appellate Court is silent about any

challenge by the plaintiff-respondent to the amount of maintenance fixed by

the Trial Court. As such, she cannot now challenge the same in second

appeal. The present cross-objections are without merit and are dismissed.

In view of the discussion above, both the regular second appeal

as well as the cross-objections are dismissed. Pending applications, if any,

also stand disposed off.

                                                                                     ( ALKA SARIN )
                           20.01.2023                                                    JUDGE
                           tripti

NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO

TRIPTI SAINI 2023.01.20 17:48 I attest to the accuracy and integrity of this document Chandigarh