- (1.) The following substantial questions of law arise for consideration in the second appeal. 1. Whether the appraisal of evidence relating to the Will was perverse to hold that the Will had been established when there were inherent contradictions and unnatural disposition that ought to have excited the suspicion regarding the validity of the Will? 2. Whether the appeal had abated by the death of the appellants by the failure of the legal representatives to be brought on record within the time prescribed by the law? 3. Whether the amended provisions of Order 22 Rule 3 are inapplicable to an event of death which had taken place prior to the date when the amendment was brought to the Civil Procedure Code by the High Court Rules dated 21.02.1992? The second appeal is against the judgment of the Courts below decreeing the suit filed by the plaintiff. The suit related to the estate of one Narain Singh and the property comprised was immovable properties in village Khatrai Kalan. The suit was at the instance of brother of Narain Singh and the defendants were the daughters of Narain Singh. The suit had been filed by the plaintiff contending that Narain Singh had executed a Will bequeathing his properties in his favour on 19.12.1972. The plaintiff would aver that the defendants had earlier filed the suit for declaration with reference to the property but later on obtaining mutation in their names and after having filed a petition for partition, they had withdrawn the suit. The plaintiff would contend that the Will had been executed by Narain Singh in a sound disposing state of mind and subsequent to his death, the Will was given publicity and registered posthumously and the defendants/daughters had no right to the properties since they were disinherited. The contention in defence was that the Will was not true and that it was a fabrication. It was the further contention that their own mother Basant Kaur died only four or five years prior to the death of Narain Singh and the Will was most artificial that it made no reference even to the existence of his wife and it had disinherited her wholly. Evidently, the burden of proof was heavily on the plaintiff to establish the genuineness of the Will and stave clearly of any suspicion from the mind of the Court regarding the manner of disposition. At the trial, the plaintiff examined himself and the scribe and one of the witnesses. The defendants examined themselves, their husband and some villagers in support of the filially between father and daughters and how he could never have disinherited the daughters. The trial Court upheld the Will and the Appellate Court confirmed the same. It is against the concurrent findings of the two Courts regarding the genuineness of the Will that the second appeal has been filed.
(2.) After the filing of the appeal, appellants No. 1 and 2 died one after another. Bhajan Kaur died on 25.10.1991 and the second appellant died on 20.11.1998. The applications for impleadment had been brought beyond a period of 90 days and even after 60 days when the appeal must have been taken as abated. The applications were, however, filed for condoning the delay in filing the applications for impleadment and to set aside the abatement. There had been also contest on whether the person, who was trying to implead herself as a legal representative was really the daughter or of Mango and the reference in the death certificate referring to Mango as having an alias Manjit Kaur was taken as a point of dispute by the respondent and this Court had, therefore, called for a report from the trial Court to elicit whether Mango had an alias Manjit Kaur and whether Gurmit Kaur, who claimed herself to be the daughter of Mango was indeed her daughter and the legal representative of Mango. The Court has returned the finding that Mango had alias by name Manjit Kaur and Gurmit Kaur was daughter and a legal representative. I have gone through the report given and I will find that it is well reasoned one, having allowed patties to enter a very serious contest in applications for impleadment as though they were dealing literally with right to property itself.
(3.) At the forefront of the arguments of respondent, it was contended that the applications for impleadment after death of Bhajan Kaur were filed only on 10.12.1997 while the death of Bhajan Kaur had taken place even on 25.10.1991. The contention was that the amendment to Order 22 Rule 3 brought by the Punjab and Haryana High Court on 22.02.1992 was not applicable to a case of death that had taken place prior to the amendment. Consequently, the applications which were barred by Article 120, not having been filed within 90 days to implead the legal representatives, resulted in abatement of the appeals. The applications had been supported by a statement that the legal representatives were illiterate and they did not know the provision of law that they had to implead themselves within time. They also contended that they were under the impression that no steps need be taken to implead the Legal representatives. This the learned Senior Counsel appearing for the respondent would point out was unacceptable and no appropriate reasons have been given to set aside the abatement and to condone the delay in filing the appeal. I am setting this out because it would become essential to stave off any technical objection from coming in the way from consideration of a core issue of validity of the Will.;