50. In the result, it is hereby held that the plaintiff
has succeeded to establish the cause of action for
the suit and accordingly the suit is allowed and
decreed with cost with declaration that the
registered sale deed vide No.1-1046 dated
09.06.2010 and the registered sale deed vide No.1-
1801 dated 06.10.2010 executed by Principal
defendant No.1 Sri Bidhan Ch. Nath in favour of
Principal Defendant No.2 Sri Birendra Ch. Nath are
fraudulent, collusive and void and not binding upon
the plaintiff and these 2 instruments are liable to be
cancelled.
I) Accordingly, the two registered instruments
vide sale deeds vide No.1-1046 dated
09.06.2010 and vide No.1-1801 dated
06.10.2010 are hereby cancelled.
II) It is hereby declared that the Probate
certificate dated 26.07.2004 granted in respect
to the registered Will vide No.III-2 dated
09.03.1983, is not binding upon plaintiff in
relation to the A-schedule, B-schedule and C-
schedule suit land which have no reference in
the original registered Will.
III) It is further declared that plaintiff is
entitled to get preliminary decree of partition of
the A-schedule, B-schedule and C-schedule suit
land with declaration of the quantum of the
share of the respective share holders as under:-
b) Pro-defendants No.7 & 8 being the
surviving legal heirs of deceased Sandhya
Goswami (Nath) are jointly entitled to get
1/10th share out of A-schedule, B-schedule
and C-schedule suit land.
c) Pro-defendant No.10 being the only
surviving legal heir of deceased Suniti Nath
is entitled to get 1/10 share out of A-
schedule, B-schedule and C-schedule suit
land.
IV) Prepare preliminary decree accordingly and
place it before me for signing within 14 days.
VI) Both the parties are at liberty to make
amicable partition of the suit land within the
next date and in case, they failed to make any
such amicable partition of the decreetal land
both the parties are at liberty to approach this
court for appointment of Survey Commissioner
who will then make division of the share of the
share holders and cause partition.
VII) List the case after one month for step by
the parties.
before the Learned 1st Appellate Court which was numbered as T.A.
Learned Trial Court. The operative portion of the said judgment dated
10. The appeal is allowed on contest without cost.
Send back the L. C. Record along with a copy of this
judgment.
Nath in favour of Birendra Ch. Nath was
fraudulent, collusive, void and not binding
upon plaintiff?
v) Whether the registered sale deed No.1-1801
dated 06.10.2010 executed by Bidhan Ch. Nath
in favour of Birendra Ch. Nath was fraudulent,
collusive, void and not binding upon plaintiff?
vi) Whether there is any cause of action in this
suit?
vii) Whether plaintiff is entitled to get decree of
declaration of nullity of suit deeds along with
cancellation of these suit deed?
viii) Whether plaintiff is entitled to get preliminary
decree of partition of the Schedule-A, B, C & D
landed property?
record. For the sake of convenience, the name of witnesses of the
8. Exbt.H - Certified copy of judgment dated
06.04.2004 passed by the Ld. District Judge,
North Tripura, Kailashahar in case No.TS
(Probate) 02 of 2003 along with certified copy
of affidavit.
9. Exbt.I - Certified copy of petition of probate in
connection with case No.TS(Probate) 02 of
10. Exbt.J - Certified copy of order dated
14.11.2005 passed in case No.T.S. (Probate)
02 of 2003
11. Exbt. K. - Certified copy of petition u/s.19G of
Court Fees Act in connection with Case No.T.S.
(Probate) 02 of 2003.
12. Exbt.L. - Certified copy of order as to deposit
of Additional Court fees.
13. Exbt.M & M-1, - Certified copy of Khatian
No.3256 & computerized khatian No.3256.
14. Exbt.N & N-1 - Khatain No.336 &
computerized khatian No.336.
15. Exbt. O & O-1 - khatian No.336/2 &
computerized khatian No.336/2 and
16. Exbt.P - Computerized khatian No.787
17. Exbt.Q - Total 42 Nos. land revenue receipt.
18. Exbt.R- Certified copy of registered sale deed
No.1-1810 dated 06.10.2010
19. Exbt.S - Certified copy of khatian No.8877
20. Exbt. T - Certified copy of khatian No.8878
21. Exbt. U - The original registered sale deed
22. Exbt.V- Attested copy of family register book
No.2 dated 28.05.1992
After conclusion of trial, the Learned Trial Court below by the
subsequent judgment dated 18.11.2017 and decree dated 28.11.2017
dismissed the suit filed by the original plaintiff. For the sake of
convenience, the operative portion of the judgment dated 18.11.2017
delivered by the Learned Trial Court below runs as follows:
ORDER
40. In the result, it is hereby held that the plaintiff
has not succeeded to establish the cause of action
for the suit and the suit is not allowed for being not
maintainable.
41. Plaintiff is not entitled to get the decree of
declaration that (a) the registered relinquishment
deed vide No.1-3328 dated 03.09.1982 executed by
Brindaban Ch. Nath in favour of Sushila Bala Nath in
respect to „D‟ schedule suit land measuring 0.121
acre, (b) the registered sale deed vide No.1-1046
dated 09.06.2010 in respect to land measuring 4.06
acre and (c) the registered sale deed vide No.1-1801
dated 06.10.2010 in respect to land measuring 0.060
acre are fraudulent, void and not binding upon
plaintiff. These instruments are also not liable to be
cancelled. Consequently, the suit is hereby dismissed
on contest with cost.
42. Prepare decree accordingly.
43. Thus the suit stands disposed of.
Being aggrieved by the said judgment, the original plaintiff
further preferred appeal before the Learned 1st Appellate Court under
Section 96 of CPC which was numbered as TA No.3 of 2018 and after
elaborate hearing, Learned 1st Appellate Court by the judgment dated
31.05.2023 and decree dated 05.06.2023 was pleased to set aside
the judgment delivered by the Learned Trial Court which runs as
follows:
ORDER
In the result, the appeal is allowed and judgment
and decree of Ld. Trial Court is set aside. It is
declared that-
i) Plaintiff, defendant No.1 to 6, 9 and 10 each
are 1/10th share holder of the suit land
described in schedule A, B and C of plaint.
ii) Defendant No.7 and 8 jointly are owner of
1/10th share holder of the suit land described
in schedule A, B and C of plaint.
Both the parties are directed make amicable final
partition of the suit land described in schedule A, B
and C of plaint by meets and bounds within 30 days
from today and failure to which any party can moved
the Ld. Trial Court on the date as would be fixed by
the Ld. Trial Court for final partition of the suit land
by meets and bounds by appointing Survey
Commissioner.
This appeal is disposed of on contest.
Prepare appellate decree accordingly and place
before me for signature within 15 days.
Send down the Trial Court Record along with a copy
of this judgment and decree.
Challenging that judgment, the defendants as appellants have
preferred this second appeal under Section 100 of CPC before the
High Court. Before the High Court at the time of admission of appeal,
following substantial questions of law were formulated by order dated
26.09.2023:
i) Whether the correctness of granting of Probate
certificate by a competent Court can be questioned in a
partition suit filed after granting of Probate?
ii) Whether the judgment passed by the first appellate
Court is perverse?
7. In course of hearing of argument, Learned Counsel Mr.
Sankar Lodh appearing on behalf of the appellants submitted that the
Learned 1st Appellate Court at the time of delivery of judgment
ignored the material facts and laws in considering the appeal and
without any basis, Learned 1st Appellate Court reversed the judgment
of the Learned Trial Court. According to Learned Counsel for the
appellants, Learned Trial Court by the judgment dated 18.11.2017
rightly delivered the judgment in favour of the present appellants
after considering the material evidence on record and there was no
perversity in the judgment of Learned Trial Court but the Learned 1st
Appellate Court at the time of determination of the points failed to
appreciate the evidence on record of the present appellants and
reversed the judgment of the Learned Trial Court. He also submitted
that the registered Will i.e. Exbt.G was a fraudulent one but the
Learned 1st Appellate Court opined that it was a valid one and
excluded the property as mentioned in schedule D of the plaint from
the partition. Learned Counsel further submitted that the findings of
Learned 1st Appellate Court that probate certificate cannot be granted
by the Court for declaration of title and it can only ensure that as to
whether the "Will" in question was genuine or not. He further
submitted that this part of finding of Learned 1st Appellate Court is not
proper and furthermore, referring the provision of Section 74 of
Succession Act, Learned Counsel further drawn the attention of the
Court and referring Exbt.-A or G, he also drawn the attention of the
Court that in the first page of the testament, two khatians bearing
No.13 and 4 were mentioned but in the schedule, the executor totally
remained silent about those khatians which shows the intention of the
testator but the Learned 1st Appellate Court did not consider those
aspects and came to the finding that schedule D of the suit land be
excluded from partition which was the absolute property of the
defendant No.1. Learned Counsel again drawn the attention of the
Court that the Learned 1st Appellate Court in the judgment observed
that Civil Court had no jurisdiction to revoke probate and it was only
under the provision of Section 264 of the Succession Act, the same
ought to have cancelled which according to Learned Counsel for the
appellant was not proper and finally, Learned Counsel submitted that
there is substantial questions of law to be decided in favour of the
appellants and urged for setting aside the judgment and decree of the
Learned 1st Appellate Court and to uphold the judgment dated
18.11.2017 of the Learned Trial Court. Learned Counsel also referred
one citation of the Hon‟ble Apex Court reported in AIR 2022 SC
4601 in support of this appeal.
8. On the other hand, Learned Counsel, Mr. Ratan Datta
appearing on behalf of the respondent-plaintiff drawn the attention of
the Court referring the subject matter of the pleadings of the parties
and submitted that Learned Trial Court by the judgment dated
18.11.2017 dismissed the suit without any basis but the Learned 1 st
Appellate Court considering the evidence on record rightly reversed
the judgment of the Learned Trial Court and granted preliminary
decree for partition and the Learned 1st Appellate Court also rightly
came to the observation that schedule D of the suit land was not part
of the joint family property and it was absolutely given to the original
defendant No.1 through Exbt.-A or G. He also referred para Nos.21,
22, 23, 24, 29, 36 and 40 of the earlier judgment dated 14.07.2015
delivered by the Learned Trial Court and finally on conclusion of his
submission, he submitted that there is no infirmity in the judgment of
Learned 1st Appellate Court and urged for dismissal of this appeal and
Learned Counsel also referred the provisions of Section 78 and 88 of
the Succession Act and submitted that the Will was a genuine one and
there was no ambiguity to that and in support of his contention, he
referred few citations and further submitted that in this appeal, there
is no substantial questions of law in favour of the present appellants
and urged for dismissal of this appeal.
9. Learned Counsel referred one judgment of Hon‟ble the
Supreme Court of India reported in (1995) 5 SCC 444 titled as
Kaivelikkal Ambunhi (Dead) by LRs. And Others versus H.
Ganesh Bhandary dated 24.08.1995 wherein para No.5, Hon‟ble
the Apex Court observed as under:
"5. This principle is also contained in Section 88 of
the Indian Succession Act, 1925 which, together with
its illustrations, provides as under:
"The last of two inconsistent clauses prevails.-
Where two clauses or gifts in a will are
irreconcilable, so that they cannot possibly stand
together, the last shall prevail.
IIlustrations
i) The testator by the first clause of his will
leaves his estate of Ramnagar „to A‟, and by
the last clause to his will leaves it „to B and
not to A‟. B will have it.
ii) If a man at the commencement of his will
gives his house to A, and at the close of it
directs that his house shall be sold and the
proceeds invested for benefit of B, the latter
disposition will prevail.""
Referring the same and also referring the provision of Section
88 of the Succession Act submitted that from Exbt.-A or G i.e. the
registered Will specifically in the schedule, the testator expressed her
opinion regarding bequeathing of property and in view of the said
principle of law, there is no scope to form a different opinion because
by the said Will, the testator Sushila Debi bequeathed her land
measuring 0.121 acre in favour of her grandson Bidhan Ch. Nath and
the Learned 1st Appellate Court rightly considered the said point.
10. Learned Counsel further referred another citation of the
Hon‟ble Supreme Court of India reported in AIR 2003 SC 3669 titled
as Delhi Development Authority versus Mrs. Vijaya C.
Gurshaney and another with Delhi Development Authority
versus Nanak Chand dated 26.08.2003 wherein in para No.8,
Hon‟ble the Apex Court observed as under:
"8. In this case the alleged Will is executed on 26th
October, 1977. Ram Dhan died on 18th September,
1978. Letters of Administration were granted on 7th
May, 1980. Admittedly, the respondent is not related
to the deceased Ram Dhan. The High Court clearly
erred in holding that merely because Letters of
Administration are granted the appellants cannot
inquire into the true nature of the transaction. It is
settled law that a Testamentary Court whilst
granting Probate or Letters of Administration does
not even consider particularly in uncontested
matters, the motive behind execution of a
testamentary instrument. A Testamentary Court is
only concerned with finding out whether or not the
testator executed the testamentary instrument of his
free will. It is settled law that the grant of a Probate
or Letters of Administration does not confer title to
property. They merely enable administration of the
estate of the deceased. Thus, it is always open to a
person to dispute title even though Probate or
Letters of Administration have been granted."
Learned Counsel further referred another citation of Hon‟ble
the Supreme Court of India reported in (1993) 2 SCC 507 titled as
Chiranjilal Shrilal Goenka (Deceased) through LRS. versus
Jasjit Singh and others dated 18.03.1993 wherein in para No.15,
Hon‟ble the Apex Court observed as under:
"15. In Ishwardeo Narain Singh v. Smt. Kamta Devi
:AIR 1954 SC 280 this Court held that the court of
probate is only concerned with the question as to
whether the document put forward as the last will
and testament of a deceased person was duly
executed and attested in accordance with law and
whether at the time of such execution the testator
had sound disposing mind. The question whether a
particular bequest is good or bad is not within the
purview of the probate court. Therefore the only
issue in a probate proceedings relates to the
genuineness and due execution of the will and the
court itself is under duty to determine it and
preserve the orginal will in its custody. The
Succession Act is a self-contained code insofar as the
question of making an application for probate, grant
or refusal of probate or an appeal carried against the
decision of the probate court. This is clearly
manifested in the fascicule of the provisions of the
Act. The probate proceedings shall be conducted by
the probate court in the manner prescribed in the Act
and in no other ways. The grant of probate with a
copy of the will annexed establishes conclusively as
to the appointment of the executor and the valid
execution of the will. Thus it does no more than
establish the factum of the will and the legal
character of the executor. Probate court does not
decide any question of title or of the existence of the
property itself."
Referring the said principles of law, Learned Counsel for the
respondent-plaintiff drawn the attention of the Court that the Court of
Probate is only concerned with the question as to whether the
document put forward as the last will and testament of a deceased
person was duly executed and attested in accordance with law or not
and whether at the time of such execution, the testator had sound
disposing mind and referring the present case, Learned Counsel for
the respondent-plaintiff submitted that the Learned 1st Appellate
Court at the time of delivery of judgment rightly came to the
conclusion regarding granting of probate.
11. Learned Counsel further referred another citation of the
Hon‟ble Supreme Court of India reported in (2008) 4 SCC 300 titled
as Krishna Kumar Birla versus Rajendra Singh Lodha and
others dated 31.03.2008 wherein in para Nos.57 and 66 Hon‟ble the
Apex Court observed as under:
"57. The 1925 Act in this case has nothing to do with
the law of inheritance or succession which is
otherwise governed by statutory laws or the custom,
as the case may be. It makes detailed provisions as
to how and in what manner an application for grant
of probate is to be filed, considered and granted or
refused. Rights and obligations of the parties as also
the executors and administrators appointed by the
court are laid down therein. Removal of the existing
executors and administrators and appointment or
subsequent executors are within the exclusive
domain of the court. The jurisdiction of the Probate
Court is limited being confined only to consider the
genuineness of the will. A question of title arising
under the Act cannot be gone into the (sic probate)
proceedings. Construction of a will relating to the
right, title and interest of any other person is beyond
the domain of the Probate Court.
66. We may, however, at the outset, notice a
decision of this Court in Elizabeth Antony v. Michel
Charles John Chown Lengera:(1990) 3 SCC 333
which is binding on us. Therein, the testatrix viz. one
Mary Aline Browne, was the wife of one Herbet
Evander Browne, the eldest son of John Browne.
Mary died on 28.03.1972. She had executed a will on
12.03.1962. An application for grant of a letter of
administration with a copy of the will annexed was
filed by Michel. Petitioner Elizabeth Antony and her
husband Zoe Enid Browne filed caveats on the plea
that the said will was a forged document. The
petitioner therein also claimed that her daughter
Browne had executed a will on 23.06.1975 and she
had executed a deed of gift in favour of the
petitioner. She also claimed herself to be a trustee of
John Browne Trust. The Probate Court held that they
had no caveatable interest. Caveatable interst,
therefore, was claimed as an executor and legatee of
the will executed by Zoe Enid Browne as also a deed
of gift in respect of one item of the estate executed
in their favour. Caveatable interest was also claimed
on the premise that the petitioner was appointed a
trustee of John Browne Trust. This Court noticed a
large number of High Court judgments. It was,
however, opined that the petitioner therein failed to
establish a caveatable interest stating: (SCC p.336,
para 6)
"6. ... We have perused the entire order of the
trial court in the context. Admittedly neither the
original nor a copy of the will said to have been
executed by Zoe Enid Browne, was filed. Now
coming to the trust, it is in the evidence of PW 1
that John Browne Trust has come to an end in
March 1972 and the same was not in existence.
The trial court has considered both the
documentary and oral evidence in this regard and
has rightly held that the petitioner has no existing
benefit from the trust. Likewise the registered gift
deed or a copy of it has been filed. Before the
learned Single Judge of the High Court also same
contentions were put forward. The learned Judge
observed that from the objections filed by the
caveator she desires the court in the probate
proceedings to uphold her title on the strength of
a gift deed and the trust deed. It is observed:
„Equally, the petitioner has not placed before
the court the will dated 23.06.1975 stated to
have been executed by Zoe Enid Browne to
establish that under the will dated 12.03.1962
stated to have been executed by Mary Aline
Browne some interest given to the petitioner
under the will dated 23-6-1975 of Zoe Enid
Browne, is liable to be in any manner affected
or otherwise displaced, by the grant of letters
of administration in respect of the will dated
12-3-1962 stated to have been executed by
Mary Aline Browne.‟
Accordingly, the learned Judge held that the
petitioner has not established that she has a
caveatable interest justifying her opposition to
the probate proceedings for grant of letters of
administration. In this state of affairs, we are
unable to agree with the learned counsel that the
petitioner has caveatable interest."
This Court, thus categorically opined that while
granting a probate, the court would not decide any
dispute with regard to title. A separate suit would be
maintainable therefor. If probate is granted, they
have a remedy in terms of Section 263 of the 1925
Act also."
Referring the same, Learned Counsel also drawn the attention
of the Court that Learned 1st Appellate Court in deciding the appeal
rightly considered the probate issued by the Court on the ground that
granting of probate does not confer any title.
12. Learned Counsel also referred another citation of Hon‟ble
Supreme Court of India reported in AIR 2022 SC 4601 titled as
Chandrabhan(Deceased) through LRs. and others v. Saraswati
and others dated 22.09.2022 wherein in para Nos.31, 32 and 33,
Hon‟ble the Apex Court observed as under:
"31. The proper test for determining whether a
question of law raised in the case is substantial
would be, whether it is of general public importance
or whether it directly and substantially affects the
rights of the parties and if so, whether it is either an
open question in the sense that it is not finally
settled by this Court. If the question is settled by the
highest court or the general principles to be applied
in determining the question are well settled and
there is mere question of applying those principles or
the question raised is palpably absurd, the question
would not be a substantial question of law.
32. To be „substantial‟, a question of law must be
debatable, not previously settled by law of the land
or a binding precedent, and must have a material
bearing on the decision of the case, if answered
either way, insofar as the rights of the parties before
it are concerned. To be a question of law "involving
in the case" there must be first, a foundation for it
laid in the pleadings and the question should emerge
from the substantial findings of fact arrived at by
court of facts and it must be necessary to decide that
question of law for a just and proper decision of the
case. An entirely new point raised for the first time
before the High Court is not a question involved in
the case unless it goes to the root of the matter. It
will, therefore, depend on the facts and circumstance
of each case whether a question of law is a
substantial one and involved in the case or not, the
paramount overall consideration being the need for
striking a judicious balance between the
indispensable obligation to do justice at all stages
and impelling necessity of avoiding stages and
impelling necessity of avoiding prolongation in the
life of any lis. (See Santosh Hazari v. Purushottam
Tiwari:(2001) 3 SCC 179).
33. The principles relating to Section 100 of the CPC
relevant for this case may be summarized thus:
(i) An interference of fact from the recitals or
contents of a document is a question of fact. But
the legal effect of the terms of a document is a
question of law. Construction of a document
involving the application of any principle of law, is
also a question of law. Therefore, when there is
misconstruction of a document or wrong
application of a principle of law in construing a
document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the
case involves a substantial question of law, and
not a mere question of law. A question of law
having a material bearing on the decision of the
case (that is, a question, answer to which affects
the rights of parties to the suit) will be a
substantial question of law, if it is not covered by
any specific provisions of law or settled legal
principle emerging from binding precedents and
involves a debatable legal issue. A substantial
question of law will also arise in a contrary
situation, where the legal position is clear, either
on account of express provisions of law or binding
precedents, but the court below has decided the
matter, either ignoring or acting contrary to such
legal principle. In the second type of cases, the
substantial question of law arises not because the
law is still debatable, but because the decision
rendered on a material question, violates the
settled position of law.
(iii) The general rule is that the High Court will
not interfere with findings of facts arrived at by
the courts below. But it is not an absolute rule.
Some of the well-recognised exceptions are
where (i) the courts below have ignored material
evidence or acted on no evidence; (ii) the courts
have drawn wrong inferences from proved facts
by applying the law erroneously; or(iii) the courts
have wrongly cast the burden of proof. When we
refer to "decision based on no evidence", it not
only refers to cases where there is a total dearth
of evidence, but also refers to any case, where
the evidence, taken as a whole, is not reasonably
capable of supporting the finding."
Referring the same, Learned Counsel for the respondent-
plaintiff drawn the attention of this Court and submitted that the
appellants have failed to satisfy the substantial questions of law in
this case, as such, the present appeal is not maintainable and liable to
be dismissed.
13. Learned Counsel Mr. Ratan Datta appearing on behalf of the
respondent-plaintiff further referred another citation of the Hon‟ble
Supreme Court of India reported in (2000) 7 SCC 543 titled as
Gram Panchayat of Village Naulakha Vs. Ujagar Singh and
others dated 27.09.2000 wherein in para No.6 Hon‟ble the Apex
Court observed as under:
"6. It appears from the commentary in Sarkar‟s
Evidence Act (13th Edn., Reprint, at p.509) on
Section 44 that it is the view of the Allahabad,
Calcutta, Patna and Bombay High Courts that before
such a contention is raised in the latter suit or
proceeding, it is not necessary to file an independent
suit. The passage from Sarkar‟s Evidence which
refers to various decisions reads as follows:
"Under Section 44 a party can, in a collateral
proceeding in which fraud may be set up as a
defence, show that a decree or order obtained by
the opposite party against him was passed by a
court without jurisdiction or was obtained by
fraud or collusion and it is not necessary to bring
an independent suit for setting it aside (Bansi Lal
v. Dhapo:ILR (1902) 24 All 242, Rajib Panda v.
Lekhan Sendh Mahapatra:ILR(1900) 27 Cal 11,
Parbati v. Gajraj Singh:AIR 1937 All 28, Prayag
Kumari Debi v. Siva Prosad Singh:AIR 1926 Cal 1,
Hare Krishna Sen v. Umesh Chandra Dutt:AIR
1921 Pat 193(FB), Aswini Kumar Samaddar v.
Banamali Chakraborty:(1916-17) 21 CWN 594,
Manchharam v. Kalidas:ILR 19 Bom 821,
Rangnath Sakharam v. Govind Narasinv:ILR 28
Bom 639, Jamiraddin v. Khadejanessa Bibi:AIR
1929 Cal 685, Bhagwandas Narandas v. D.D. Patel
& Co.:AIR 1940 Bom 131, Bishunath Tewari v.
Mirchi:AIR 1955 Pat 66 and Gurajada Vijaya
Lakshmamma v. Yarlagadda Padmanabham:AIR
1955 AP 112)."
Thus, in order to contend in later suit or proceeding
that an earlier judgment was obtained by collusion,
it is not necessary to file an independent suit as
stated in Jagar Ram case:AIR 1991 P & H 159 (FB)
for a declaration as to its collusive nature or for
setting it aside, as a condition precedent. In our
opinion, the above cases cited in Sarkar‟s
Commentary are correctly decided. We do not agree
with the decision of the Full Bench has not referred
to Section 44 of the Evidence Act or to any other
precedents of other courts or to any basic legal
principle."
Referring the same, Learned Counsel drawn the attention of
the Court that in view of Section 44 of the Evidence Act, no separate
suit is required for obtaining a decree or order, by fraud or collusion
as alleged by Learned Counsel for the appellants.
14. I have heard detailed argument of Learned Counsel of both
the sides at length and perused the records of the Learned Courts
below as well as the judgment delivered by Learned 1st Appellate
Court. After going through the judgment delivered by Learned 1st
Appellate Court, it appears that at the time of determination of
appeal, the Learned 1st Appellate Court formulated the following
points for determination of the appeal and in course of hearing of
argument, Learned Counsel for the rival parties also touched upon
those points. So, for the sake of gravity, let this Court examine as to
whether those points were properly appreciated and decided by the
Learned 1st Appellate Court or not as because Learned Counsel of both
the sides were also confined their arguments on those salient points.
Points formulated by the Learned 1st Appellate Court in connection
with case No.T.A. No.3 of 2018 are as follows:
i) Whether relinquishment deed No.1-3328 dated
03.09.1982 is valid?
ii) Whether Civil Court has jurisdiction to decide
genuineness of a Will of which Probate has been
granted?
iii) Whether Probate obtained without making all the
legal heirs as a party is valid?
iv) Whether Will No.III-2 dated 09.03.1983 is valid?
v) Which property is bequeathed by Will No.III-2
dated 09.03.1983?
vi) Whether registered sale deed No.1-1046 dated
09.06.2010 and 1-1801 dated 06.10.2010 are
void and not binding on the plaintiff?
vii) What is the share of the party of the suit land?
viii) Whether the Ld. Trial Court is justified in
dismissing the suit of the plaintiff?
ix) What relief the parties are entitled?
15. In deciding the point No.(i) as to whether the relinquishment
deed bearing No.1-3328 dated 03.09.1982 is valid or not, Learned 1st
Appellant Court came to the observation that PW-1 Santosh Debnath,
PW-2 Bharat Ch. Nath and PW-3 Adhar Mohan Nath of the main suit in
course of their examination deposed that relinquishment deed bearing
No.1-3328 dated 03.09.1982 executed by Brindaban Ch. Nath (since
dead) in favour of Sushila Bala Nath (since dead) was fraudulent,
void, collusive, non-effective and not tenable in the eye of law and
also not binding upon the plaintiff and liable to be cancelled but in the
plaint, no particulars of fraud were asserted by the original plaintiff.
Furthermore, on the contrary, DW-1 Bidhan Ch. Nath i.e., the
defendant No.1 now the appellant herein also deposed that Brindaban
Ch. Nath (since dead) before his death executed registered deed of
release/relinquishment vide No.1-3328 dated 03.09.1982 and on
perusal of said deed which was executed in favour of Sushila Bala
Nath (since dead), Learned 1st Appellate Court did not find anything to
disbelieve the evidence of DW-1 and Exbt.-B. So, Learned 1st
Appellate Court relying upon the evidence of DW1 i.e. the appellant
herein and Exbt.-B came to the observation that Learned Trial Court
also relying upon Exbt.-B rightly decided that the
relinquishment/release deed was not void but valid and accordingly
decided the point No.(i) in favour of the contesting defendants of the
original suit and also against the plaintiff i.e. the present respondent
herein.
So, after hearing Learned Counsel of both the sides, it
appears that before the Learned Trial Court no particulars of fraud
could be proved by the plaintiff, so, Learned 1st Appellate Court rightly
decided the said point in favour of the contesting defendants i.e. the
present appellant herein and also against the plaintiff i.e. the
respondent No.1 herein and this Court does not find any infirmity in
deciding the said point by the Learned 1st Appellate Court.
16. In deciding the point No.2 as to whether the Civil Court has
jurisdiction to decide genuineness of a „Will‟ of which probate has
been granted, Learned 1st Appellate Court relied upon one citation of
the Hon‟ble Gauhati High Court Agartala Bench in Samar Krishna
Saha Vs. State of Tripura and others, 2006 (Suppl.) GLT 207
wherein it was held,
"It, therefore, logically follows that Probate will not
be required to be obtained by Hindu in respect of a
Will made regarding the immovable property
situated in the State of Tripura............"
Relying upon the said citation, Learned 1st Appellate Court
came to the observation that since probate is not necessary to be
obtained in the State of Tripura, but it does not mean that probate
cannot be obtained and there is prohibition in obtaining Probate in the
State of Tripura in respect of property involved in a Will lying in the
State of Tripura.
Learned 1st Appellate Court also relied upon another citation
of Bombay High Court in Sanjay Madanlal Gugale and Others vs.
Bebi Madhuri Dhananjay Upasani in Writ Petition No.8870 of
2016 dated 07.12.2020 wherein it was stated as under:
"9. As far as reasoning part is concerned, obviously,
the decisions (supra) merely lay down that a probate
is not necessary in respect of the properties situated
at Ahmednagar. It does not lay down any prohibition
for applying for a probate even in respect of the
properties situated in Ahmednagar. Therefore, this
reasoning resorted to by the learned Judge is clearly
illegal and arbitrary."
Relying upon the said decision, Learned 1st Appellate Court
came to the observation that the probate of Will obtained in respect of
a property situated in Tripura is valid in the eye of law.
It was also further discussed that as referred by Learned
Counsel although a Civil Court has got the jurisdiction to negate any
judgment obtained by fraud as per Section 44 of the Evidence Act but
in view of Section 263 of the Indian Succession Act, if any party wants
to revoke a probate, in that case, he has to apply to the Probate Court
under Section 263 of the Indian Succession Act and Civil Court has
got no jurisdiction to decide that. For the sake of convenience, I
would like to refer herein below the provision of Section 263 of Indian
Succession Act which runs as follows:
"263. Revocation or annulment for just cause.- The
grant of probate or letters of administration may be
revoked or annulled for just cause.
Explanantion.-Just cause shall be deemed to exist
where-
(a) the proceedings to obtain the grant were
defective in substance; or
(b) the grant was obtained fraudulently by making a
false suggestion, or by concealing from the Court
something material to the case; or
(c) the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify
the grant, though such allegation was made in
ignorance or inadvertently; or
(d) the grant has become useless and inoperative
through circumstances; or
(e) the person to whom the grant was made has
willfully and without reasonable cause omitted to
exhibit an inventory or account in accordance with
the provisions of Chapter VII of this Par, or has
exhibited under that Chapter an inventory or account
which is untrue in a material respect."
Learned 1st Appellate Court further relied upon one judgment
of the Calcutta High Court in Kailash Chandra vs. Nanda Kumar
reported in AIR 1944 Cal 385 wherein it was observed that:
"6. ...... The judgment of a Court of Probate is a
judgment in rem and binds all the world. The
judgment in a civil suit is operative only between the
parties to the suit. It is difficult to see therefore how
a judgment in rem can be revoked or set aside by a
judgment which is only conclusive inter parties. In
our opinion therefore even when there is allegation
of forgery, the proper remedy of the party who
wants revocation of a grant of probate, is to apply to
the Probate Court under Section 263, Succession Act,
and not to file a civil suit."
In the said judgment, it was observed that where there was
allegation of forgery, the proper remedy for the party who wants to
get revocation of a grant of probate, is to apply to the Probate Court
under Section 263 of the Succession Act but not under civil suit.
Learned 1st Appellate Court thereafter referred another
citation of Karnataka High Court in Rukn-Ul-Mulk S. Abdul Wajid
And ... vs Gajambal Ramalingam and Ors., AIR 1950 Kant 57,
AIR 1950 Mys 57 wherein the Karnataka High Court observed as
under:
"Applying the principle enunciated in the cases cited,
I have no hesitationin holding that the Probate
Courts are invested with exclusive jurisdiction and
the Legislature has prescribed a special procedure
for the revocation of probates and a probate granted
can be impugned only in the Court that originally
granted the same and that no civil suit lies to
challenge the judgment of a Probate Court, nor could
any objection be raised in derogation of the will
probated in any other proceeding as the judgment of
a Probate Court will be binding on the parties, and all
Courts."
Relying upon the same, Learned 1st Appellate Court came to
the observation that Civil Court has got no jurisdiction to decide
genuineness of a „Will‟ of which Probate has been granted.
Here, in the case at hand, the party concerned did not
challenge the probate certificate granted by the Court at any point of
time, so, the probate certificate obtained attained finality and thus,
the jurisdiction of the Civil Court to decide genuineness of a Will
cannot be decided at this stage. Learned Counsel for the respondents
at the time of hearing failed to satisfy this Court that the Learned 1st
Appellate Court wrongly decided the point No.(ii) and, as such, this
Court is of the considered view that the Learned 1st Appellate Court
has rightly decided the point No.(ii) in favour of the contesting
defendants i.e. the appellants herein and also against the plaintiff i.e.
the respondent herein and this Court also find no infirmity in respect
of the aforesaid point decided by the Learned 1st Appellate Court.
17. Learned 1st Appellate Court at the time of determination of
point No.(iii) as to whether the probate certificate obtained without
making all the legal heirs as a party was valid or not. It was the
argument of the Learned Counsel for the respondent that the probate
certificate was obtained without making the respondent-plaintiff and
other legal heirs as party and, as such, it was not valid. In this
regard, Learned Counsel for the appellants submitted that the matter
was not within the knowledge of the present appellants herein.
Learned 1st Appellate Court in determination of the said point came to
the observation that the judgment of the Probate Court must have
been obtained in accordance with the prescribed procedure of law and
it was a judgment in „rem‟, as such, no objection was maintainable
and in this regard, Learned 1st Appellate Court relied upon the
following citations:
"Hon‟ble the Supreme Court in Surinder Kumar and
Others v. Gian Chand and Others, 1958 SCR
584:1957 SCJ 159: 1958 SCA 412 held,
"The judgment of the Probate Court must be
presumed to have been obtained in
accordance with the procedure prescribed by
law and it is a judgment in rem. The objection
that the respondents were not parties to it is
thus unsustainable because of the nature of
the judgment itself."
Moreover, Page No.657 of the Law of Evidence of
Ratanlal & Dhirajlal, 22nd Enlarged Edition Reprint
2009, in Section 41, Under Head Note 4. Probate
jurisdiction opined as follows:
"The judgment of a probate Court granting
probate of a will in favour of the petitioner
must be presumed to have been obtained in
accordance with the procedure prescribed by
law and it is judgment in rem binding on the
whole world and failure to implead other legal
heir in probate proceeding would be of no
consequence.35
35. Subaitah Beevi v. Yvonn Thambi, 1999
AIHC 3763 (paras 26 and 20)(Mad).""
On perusal of the aforesaid judgment, it appears that the
Learned 1st Appellate Court rightly came to the observation that since
there is no scope to challenge the judgment of Probate Court before a
Civil Court and that can only be done before the Probate Court
regarding non-making of legal heirs as a party in the probate
proceeding. So, Learned 1st Appellate Court at the time of
determination of the said point rightly came to the conclusion that
there was no scope to challenge the judgment of a Probate Court to
any Civil Court regarding non-making of legal heirs as a party and it is
only the Probate Court which can consider the same under Section
263 of the Succession Act and accordingly decided the point and after
hearing argument of both the sides, it appears to this Court that the
Learned Counsel for the appellant at the time of hearing of argument
failed to satisfy this Court regarding the decision of the Learned 1st
Appellate Court in respect of the aforesaid point and accordingly on
perusal of the findings of the Learned 1st Appellate Court, this Court is
also of the considered view that Learned 1st Appellate Court rightly
decided the said point at the time of delivery of the judgment that
only the Probate Court can annul or revoke the probate in the event
of non-making of legal heirs as a party to a probate proceeding.
18. In respect of point No.(iv) as to whether the registered Will
bearing No.III-2 dated 09.03.1983 was valid or not, it appears that
Learned 1st Appellate Court came to the observation that since
probate certificate was obtained and which was the final
determination of the fact that „Will‟ was a genuine one and valid and
as no particulars of fraud and suspicion was raised by the respondent-
plaintiff i.e. the original plaintiff before the Learned Trial Court either
by the pleading or by adducing any evidence and accordingly, the
Learned 1st Appellate Court rightly decided that the Will bearing
No.III-2 dated 09.03.1983 was valid one.
Before this Court at the time of hearing of argument nothing
was submitted by the Learned Counsel for the appellant that the said
point was wrongly decided by the Learned 1st Appellate Court and
Learned Counsel for the respondent also failed to counter anything by
showing any evidence on record that the registered Will was a
fraudulent one and further, on perusal of the evidence of PW-1, PW-2
and PW-3, nowhere this Court find that those witnesses in course of
their examination raised their allegation of fraud or raised any
suspicious circumstance from which it can be inferred that the Will
was not valid in the eye of law. So, this Court is of the considered
view that the Learned 1st Appellate Court at the time of delivery of
judgment rightly came to the observation that Exbt.-A or G was
genuine and a valid one and accordingly, Learned 1st Appellate Court
decided the said point in favour of the contesting defendants i.e. the
appellants herein and also against the respondent-plaintiff.
19. Now let us see what was the observation of Learned 1st
Appellate Court in respect of point No.(v) regarding the property
bequeathed by the Will No.III-2 dated 09.03.1983. The respondent-
plaintiff in his plaint pleaded that the „Will‟ in respect of land
measuring 0.121 acres was specifically described in the schedule-D of
the plaint. Learned Trial Court at the time of delivery of judgment
mentioned that property mentioned in the probate covers the land
measuring 8.861 acres. The present appellant-defendant in their
written statement stated that the Will in original was lying with the
Probate Court and, as such, they could not submit the certified copy
of the Will annexed with the probate certificate but they only filed the
judgment of the Probate Court passed in connection with case
No.TS(Probate) No.2 of 2003, probate petition, application for
payment of additional court fee, etc. However, the appellants filed the
certified copy of the Will obtained from the office of Sub-Registry vide
No.III-2 dated 09.03.1983 which was marked as Exbt.-A and from
Exbt.-A, it appears that said Sushila Debi (since dead) during her
lifetime executed the aforesaid Will in respect of land measuring
0.121 acres in favour of the original defendant No.1 and the same
was described in Schedule-D of the plaint. So, the plea of the
appellant-defendant is that said deceased Sushila Debi bequeathed all
her properties including A and C schedule land of the plaint in favour
of defendant No.1 by the said Exbt.-A was not true and correct. The
issue regarding mentioning of other property beyond the property of
Will in the probate application and also in the probate judgment
bearing No.TS(probate) No.2 of 2003, Learned 1st Appellate Court
came to the observation that the same had no force as the Probate
Court only decided the question of genuineness of the Will and also
regarding the sound state of mind of the testator and also according
to Learned 1st Appellate Court, the Probate Court have/had no
authority to deal with the existence of the property of the Will; right,
title and interest of the testator of the Will, etc. More so, according to
the Learned 1st Appellate Court, Probate Court cannot add, reduce,
increase or decrease the property of the Will. So, Learned 1st
Appellate Court came to the observation that the property as
mentioned in the probate judgment and application which is not
mentioned in the Will cannot be said to be bequeathed by testator
and in this regard, Learned 1st Appellate Court relied upon following
citations:
"15. In this respect, the Hon‟ble Supreme Court in
Commissioner, Jalandhar ... vs Mohan Krishan Abrol
& Another on 2 April, 2004, in Appeal (civil) 1257 of
1999 held,
"A bare reading of section 211 shows that the
property vests in the executors by virtue of the
will and not by virtue of the probate. Will gives
property to the executor; the grant of probate is
only a method by which the law provides for
establishing the will. In the case of Kulwanta
Bewa v. Karamchand reported in [AIR 1938
Calcutta 714] it has been held that section 211
provides that the estate of the deceased vests in
the executor; that the vesting is not of the
beneficial interest in the propery; but only for the
purposes of representation. In the case of
Meyeppa Chetty v. Supramanian Chetty reported
in [43 Indian Appeals 113], the Privy Council has
held that an executor derives his title from the
will and not from probate."
16. In this context, the Hon‟ble Bombay High Court
in Ramchandra Ganpatroa Hande Alias ... vs Vithalrao
Hande & Ors on 29 March, 2011, in Appeal No.797 of
2010 held,
"5. In a proceeding for the grant of probate or for
the grant of Letters of Administration with a will
annexed, the Court exercising testamentary
jurisdiction is not concerned with title to
property. In determining whether probate should
be granted, the Court determines only upon the
genuineness and due execution of the will.
Determinations on issues of title are alien to
probate proceedings. In Ishwardeo Narain Singh
vs. Kamta Devi, AIR 1954 SC 280, the Supreme
Court formulated the principle of law in the
following terms "The Court of Probate is only
concerned with the question as to whether the
document put forward as the last will and
testament of a deceased person was duly
executed and attested in accordance with law and
whether at the time of such execution the
testator had sound disposing mind. The question
whether a particular bequest is good or bad is not
within the purview of the Probate Court."
This principle was reiterated in Chiranjilal Shrilal
Goenka (deceased) vs. Jasjit Singh (1923) 2 SCC
507 in the following observations:
"The Succession Act is a self contained code
insofar as the question of making an
application for probate, grant or refusal of
probate or an appeal carried against the
decision of the probate court. This is clearly
manifested in the fascicule of the provisions of
the Act. The probate proceedings shall be
conducted by the probate court in the manner
prescribed in the Act and in no other ways.
The grant of probate with a copy of the will
annexed establishes conclusively as to the
appointment of the executor and the valid
execution of the will. Thus it does no more
than establish the factum of the will and the
legal character of the executor. Probate court
does not decide any question of title or of the
existence of the property itself."
6. In Delhi Development Authoriy vs. Mrs. Vijaya
C. Gurshaney, (2003) 7 SCC 301 the Supreme
Court again emphasized the following principle:
"A Testamentary Court is only concerned with
finding out whether or not the testator
executed the testamentary instrument of his
free will. It is settled law that the grant of a
Probate or Letters of Administration does not
confer title to property. They merely enable
administration of the estate of the deceased."
7. In Krishna Kumar Birla v. Rajendra Singh
Lodha (2008) 4 SCC 300, the Supreme Court once
again reiterated that:
"The jurisdiction of the Probate Court is
limited being confined only to consider the
genuineness of the will. A question of title
arising under the Act cannot be gone into the
(sic probate) proceedings. Construction of a
will relating to the right, title and interest of
any other person is beyond the domain of the
Probate Court."""
Finally on conclusion, Learned 1st Appellate Court came to the
observation that only the property as mentioned in the Will i.e. D
schedule land was bequeathed by said deceased Sushila Debi in
favour of defendant No.1 i.e. the appellant herein and the property
not mentioned in the Will but mentioned in the probate application
and judgment i.e. the part of land as mentioned in schedule A, B, C of
the plaint were not bequeathed by said deceased Sushila Debi in
favour of the defendant No.1 now the appellant herein. So, based on
the aforesaid discussions, Learned 1st Appellate Court decided that
only the land mentioned in schedule D of the plaint was bequeathed
by said deceased Sushila Debi in favour of defendant No.1 i.e. the
present appellant herein.
So, after hearing Learned Counsel of both the sides and after
going through the citations as referred by Learned Counsel for the
respondent-plaintiff as well as the Learned Counsel for the appellant
and also after perusal of the aforesaid provisions of law, this Court
also stands agree with the observation made by Learned 1st Appellate
Court that the suit land as mentioned in schedule-D of the plaint was
bequeathed by said deceased Sushila Debi in favour of original
defendant No.1 now the appellant herein and there was no ambiguity
on that. So, in my considered view, Learned 1st Appellate Court rightly
decided the said point.
20. In respect of point No.(vi), Learned 1st Appellate Court
determined as to whether registered sale deed bearing No.1-1046
dated 09.06.2010 and 1-1801 dated 06.10.2010 were void or not and
not binding upon the plaintiff i.e. the respondent-plaintiff herein.
Learned 1st Appellate Court in deciding the point observed that sale
deed bearing No. 1-1046 dated 09.06.2010 marked as Exbt.-U and 1-
1801 dated 06.10.2010 marked as Exbt.-R and opined that Exbt.-R
contained the land as mentioned in schedule-C of the plaint and on
perusal of Exbt.-U, Learned 1st Appellate Court came to the
observation that the said sale deed contains some part of the land as
mentioned in schedule-A of the plaint along with other land. So,
according to Learned 1st Appellate Court, the defendant No.1 i.e. now
the appellant herein sold land measuring 4.06 acre and 0.060 acre by
two separate deeds covering part of A and C schedule land of the
plaint along with other lands. So, Learned 1st Appellate Court was of
the opinion that those two sale deed comprising the land as
mentioned in schedule A and C of the plaint were joint property and
accordingly, Learned 1st Appellate Court came to the observation that
the specific schedule of land of the said two sale deeds in respect of A
and C schedule of land as mentioned in the plaint and joint property
has no force and decided the point accordingly.
So, after hearing both the sides and also after going through
the judgment of the Learned 1st Appellate Court, it appears that the
Learned 1st Appellate Court also rightly decided that point.
21. In respect of point No.(vii), it was the observation of the
Learned 1st Appellate Court that the original plaintiff being the son,
the original defendant Nos.1 to 6 being sons and daughters, original
defendant Nos.7 and 8 being the grand-daughters jointly, the original
defendant No.9 being the wife and the original defendant No.10 being
the husband of the daughter of deceased are entitled to get 1/10 th
share on the suit land described in A, B and C schedule of the plaint
excluding the land as mentioned in Schedule-D of the plaint which
was bequeathed by the deceased Sushila Debi in favour of defendant
No.1 i.e. now the appellant herein.
Thus, it appears to this Court that the Learned 1 st Appellate
Court also rightly decided the said point.
22. Now in respect of point No.(viii), it was decided by Learned 1st
Appellate Court as to whether the judgment of the Learned Trial Court
in dismissing the suit of the original plaintiffs was proper or not.
According to Learned 1st Appellate Court, Learned Trial Court
dismissed the suit of the respondent-plaintiff No.1 on the ground that
the land as mentioned in schedule A, B, C of the plaint were
bequeathed in favour of the defendant No.1 i.e. the appellant No.1
herein and that bequeathed property was not separately mentioned
but jointly mentioned in the plaint. But as the Learned 1st Appellate
Court came to the observation that the land as mentioned in
schedule-D of the plaint was only bequeathed by said Sushila Debi
(since dead) in favour of the defendant No.1 i.e. now the appellant
herein by the said registered Will, so, it was a bequeathed property.
According to Learned 1st Appellate Court, the observation of Learned
Trial Court in this respect was not proper and observed that the
Learned Trial Court was not justified in dismissing the suit of the
original plaintiff for partition of the joint land described in Schedule-A,
B and C of the plaint and accordingly decided the point.
So, after hearing both the sides and also after going through
the judgment of the Learned 1st Appellate Court, it appears to this
Court that the Learned Trial Court was wrong in dismissing the suit
which was rightly reversed by the Learned 1st Appellate Court and
accordingly, this Court also concurs with the view made by the
Learned 1st Appellate Court that the suit was maintainable.
23. In respect of point No.(ix), it was the observation of Learned
1st Appellate Court that since the land as mentioned in schedule-A, B
and C of the plaint was joint property, so, it was eligible for partition
and, as such, according to Learned 1st Appellate Court, the plaintiff
was legally entitled to get the preliminary decree of partition and
decided the point accordingly.
Since this Court accepted/acceded to the observation made
by the Learned 1st Appellate Court in respect of the aforesaid points
regarding reversal of the judgment made by the Learned Trial Court,
so, this Court is also accordingly stands agrees with the said
observation made by the Learned 1st Appellate Court.
24. So, after hearing both the parties at length and also after
going through the citations referred by both the parties as well as the
records of the Learned Courts below including the judgment of both
the Learned Courts below, it appears to this Court that the Learned 1st
Appellate Court rightly reversed the judgment of the Learned Trial
Court and there is no infirmity to that judgment.
However, in course of hearing, both the parties also relied
upon one citation of Hon‟ble the Supreme Court of India reported in
AIR 2022 SC 4601 titled as Chandrabhan (Deceased) through
LRs and others v. Saraswati and others dated 22.09.2022
wherein in the relevant para Nos.31, 32 and 33, Hon‟ble the Supreme
Court discussed about the principles of substantial questions of law. I
have also perused the said judgment. It appears that the proper test
for determining whether a question of law raised in the case is
substantial would be, whether it is of the general public importance or
whether it is directly or indirectly substantially affects the rights of the
parties and if so, whether it is either an open question in the sense
that it is not finally settled by the Supreme Court. If the question is
settled by the highest Court or the general principles to be applied in
determining the questions are well settled and there is a mere
question of applying those principles or the question raised is palpably
absurd, the question of law would not be a substantial question of
law. So, it depends on the facts and circumstances of each case
whether a question of law is a substantial one or involved in the case
or not. The paramount overall consideration being the need for
striking a judicious balance between the indispensable obligation to do
justice at all stages and impelling necessity of avoiding prolongation in
the life of any lis and the High Court should be satisfied that the case
involves a substantial question of law, and not a mere question of law.
Here in this appeal, after hearing both the sides, it appears to
this Court that the appellants have failed to show any substantial
questions of law to be formulated for deciding this appeal, as such, in
my considered view, the appellants are not entitled to get any benefit
and the present appeal is liable to be dismissed with costs.
25. In the result, the appeal filed by the appellants is hereby
dismissed on contest with costs. The judgment dated 31.05.2023 and
decree dated 05.06.2023 delivered by Learned 1st Appellate Court in
connection with T.A. No.3 of 2018 reversing the judgment dated
18.11.2017 and decree dated 28.11.2017 delivered by the Learned
Trial Court in connection with T.S.(partition) No.23 of 2011 is hereby
upheld and the same is affirmed. The respondent-plaintiff is entitled
to get the decree as ordered by Learned 1st Appellate Court in the
aforesaid judgment dated 31.05.2023 and decree dated 05.06.2023.
With the above observations, this present appeal stands
disposed of.
Prepare decree accordingly.
Send down the records of the Courts below along with a copy
of this judgment and Order.
Pending applications(s), if any, also stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
Date: 2025.03.01
DATTA 11:55:07 -08'00'
Deepshikha
