Neelam Sharma And Others v. Maneka Joshi And Others

-1IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of decision : 04.12.2015 Mrs. Neelam Sharma and others ....Petitioners versus Mrs. Maneka Joshi and others

...Respondents

CORAM:

HON'BLE MS. JUSTICE RITU BAHRI

Present:

Mr. Parveen Kataria, Advocate for the petitioners.

Mr. K.S. Rekhi, Advocate for respondent No. 1 **** RITU BAHRI , J. (Oral) Challenge in this petition is to order dated 02.02.2012 passed by learned Civil Judge (Jr. Divn.), Amritsar whereby two applications have been decided i.e one filed by the petitioners for deexhibiting of will (Ex D2) and another application by respondent No. 1 for producing secondary evidence, has been allowed. Brief facts of the case are that the petitioners/plaintiffs initially filed a suit for partition of the property at Amritsar on 19.05.2003 in which respondent No. 1 filed her written statement stating that Smt. Ram Piari bequeathed all the properties in favour of

-2her grandson i.e father of respondent No. 1 and after his death, respondent No. 1 had become absolute owner of all the properties left by her father. In 2005, petitioners filed another suit at Chamba for declaration, claiming 5/12th share of the properties left by their mother Smt. Kaushalaya Devi being class I heirs. The trial Court dismissed this suit and the petitioners filed appeal on 20.07.2007, which was allowed and it was held that the petitioners are entitled to their shares in the properties of their mother. An appeal was filed by respondent No. 1 against the order passed by District Judge, which is still pending before Himachal Pradesh High Court.

In the present suit, petitioners filed an application for deexhbiting of the will alleged executed by Rampiara on 02.06.1970. This application had been dismissed by the trial Court on the ground that as per judgment dated 18.1.2008 and 26.08.2009, the will had been believed by the competent Courts.

Learned counsel for the parties admits that this finding had been wrongly recorded by the learned trial Court as the learned District Judge, vide order dated 26.08.2009 had allowed the appeal of the petitioners and decreed the suit of the petitioners. Thus, the will has been disbelieved.

But since the appeal with regard to partition is still pending

-3before Himachal Pradesh High Court, the trial Court was right in dismissing the application of the petitioner for de-exhibiting the will. Thus, order dated 02.02.2012 dismissing the application of the petitioner does not require any interference by this Court. With regard to the second application filed by respondent No. 1 under Section 65 for proving the certified copy of the will dated 27.10.2003, the defendant had taken a stand that the will is in possession of defendant No. 2, who is beneficiary of the will and is ex parte in the case and is residing at Australia. A perusal of written statement filed by respondent No. 1, respondent No. 1 was nowhere made beneficiary of the will.

In view of the above, order dated 02.02.2012 is set aside with regard to the application of respondent No. 1 for producing secondary evidence. It is being clarified that the application for producing secondary evidence will be available to defendant No. 2 in her individual capacity.

The petition stands disposed of in the above terms. 04.12.2015 (RITU BAHRI) G Arora JUDGE