JUDGEMNT SHEET

JUDGMENT SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT,

HYDERABAD.

M.A.No.18 of 1998

M.A. No.19 of 1998

Date of hearing: 01.04.2011.

Date of decision 01.04.2011

Appellant: Rijhomal S/o Shewakmal Hindu Lohano

Respondent: Tarachand S/o Anand Singh Shahani

Mr. Ahmed Ali Shaikh Advocate for the Appellant

Nemo for the Respondent

JUDGMENT

Muhammad Ali Mazhar J: These two appeals have been brought to challenge two separate Judgments passed by the learned IInd Additional District Judge, Hyderabad on 30.05.1998 in Misc. Application No.10/1983 “Tara Chand Vs. Rijhomal” and Misc. Application No.166/1986 “Rijhomal Vs. Tara Chand”.

1. Brief facts of the case are that respondent Tara Chand moved an Application No.10/83 in the court of District Judge, Hyderabad for grant of probate on the basis of will executed by Vishindas s/o Mangharam. In the application, it was inter alia contended that Vishindas died in the month of October, 1982 and at the time of his death, he left moveable and immoveable properties in Hyderabad. The respondent Tara Chand claimed that he is the sole executor and main beneficiary of the will, therefore, probate in his favour be granted.

2. Similarly, Rijhomal, the appellant had also filed another Misc. Application No.166/86 before the District Hyderabad under Section 276 of the Succession Act in which he had also disclosed the factum of death of Vishindas and claimed himself to be the sole executor of the will, which was allegedly executed in his favour by Vishindas on 13.04.1981.

3. The matter was heard by the learned IInd Additional District Judge, Hyderabad and vide judgment dated 30.05.1998, the Misc. Application No.10/83, filed by Tara Chand was allowed and Misc. Application No.166/1986 moved by Rijhomal for grant of probate was dismissed.

4. The learned counsel for the appellant argued that while dismissing the application of Rijhomal (appellant) for grant of probate and or allowing the application of Tara Chand, the learned trial court failed to appreciate the evidence and an important piece of evidence was overlooked. Learned counsel invited the attention of the court to “Ex.45”, which is the deposition of one Mohsin Ali, who appeared in the support of Rijhomal in the trial court. Though in the impugned Judgment, the trial court referred to the evidence of Mohsin Ali but substance of his deposition has neither been mentioned nor considered which was most crucial for the just and proper decision of the matter.

5. I have seen the impugned judgments passed by the learned Additional District & Session Judge, Hyderabad. In both the cases, the learned trial court framed identical issues. Following issues were settled in the case of Tara Chand:

“1. Whether the will dated 25.05.1982 produced by the petitioner is genuine will executed by deceased Vishindas S/o Manghram?

2.Whether probate can be granted in favour of the petitioner?

3.What should the order be?”

6. In the Misc. Application of Rijhomal, similar issues were framed except the date of the execution of will which is obviously different in both the cases. Despite the fact that the application filed by Tara Chand was allowed and application moved by Rijhomal was dismissed, it is comprehensible from the record that while dismissing or allowing the application for probate, the learned trial court has overlooked the material evidence of Mohsin Ali, who appeared and recorded his deposition. In the examination in chief, it was clearly stated by him that Vishindas had will his property to Rijhomal. He further stated that the will was executed by Vishindas in his presence and he was one of the witnesses to the will. He further deposed that will was signed in his presence. He was also cross examined by the advocate of Tara Chand but it is clear from his deposition that the evidence adduced by him was neither shattered nor dismantled during the cross examination. Although, the trial court has mentioned his name as witness in the judgment but disregarded the substantial evidence adduced by him in which not only he deposed that the will was signed in his presence but he was one of the witnesses of the will also.

7. The judgment passed by the trial court is not based on judicial consideration. Material evidence has been overlooked and disregarded which is indicative of the fact that evidence was not properly considered in arriving at a rational findings.

8. The case file reflects that on 28.03.2006, Mr. Faiz Muhammad Soomro, Advocate appeared on behalf of respondent in this matter but he withdrawn his power and office was directed to delete his name from the file cover and direct notice was issued to the respondent. In spite of issuing notices, nobody appeared to represent the respondent on various dates. The order sheet further shows that on 23.10.2007, the previous counsel for the appellant informed the court that respondent Tara Chand had expired on 13.10.2007. The learned counsel for the appellant was directed to requisite the information regarding legal heirs of respondent within two weeks. The bailiff report dated 24.09.2008 disclosed that the respondent Tara Chand had expired long ago and there is nothing on record regarding legal heirs of respondent. On this statement, this court called a report from Mukhtiarkar, who submitted his final report on 20.12.2008, according to which, the deceased Tara Chand had left no legal heir at the time of his death.

9. It is worthwhile to bring up here that Order 22 C.P.C pertains to death, marriage and insolvency of parties. Order 1 Rule 22 C.P.C provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Since in the present matter, an imperative question of will and its execution is under challenge, therefore, in my view the right to survives and the proceedings will not be abated due to the death of respondent. Under Order 22 Rule 4, procedure in case of death of one of several defendants or the sole defendant is provided which reads as under:-

Order 22 Rule 4 C.P.C

“Procedure in case of death of one of several defendants or of sole defendant- (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone [or on receipt of an intimation of the death of such defendant from the person nominated by him for that purpose under rule 13, Order VIII] or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.

(2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant.

(3) When within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place.]

(4) It shall not be necessary to substitute the legal representatives of any such defendant who has failed to file a written statement or has failed to appear and contest the suit at the hearing; and judgment may in such case be pronounced against the said defendant notwithstanding his death, and such judgment shall have the same force and effect as if it had been pronounced before his death took place.]”

10. Under Rule 11 of Order 22 C.P.C, the application of Order 22 has been made applicable to appeals also in which it is unequivocally provided that in the application of this order to appeals, so far as may be, the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.

11. After hearing the learned counsel for the appellant and appreciating the evidence led in the trial court, especially the evidence of Mohsin Ali, it is clear beyond any shadow of doubt that while dismissing the application of probate of the appellant (Rijhomal), the trial court failed to decide the bone of contention between the parties. Even, the learned trial court did not bother to give any eloquent or persuasive findings as to why the evidence of Mohsin Ali was not inspiring confidence in which he not only categorically stated that the will was signed in his presence but he was himself the witness of the will and he further named another witness, who was an advocate.

12. If a meticulous version in evidence on a material point of fact goes unchallenged and un-rebutted, same would be deemed to have been admitted and accepted as true. The object of cross examination is two fold i.e to bring out desirable fact of case modifying examination-in-chief or establishing cross examiner’s own case and to impeach credit of witness. Cross examination helps in discovery of truth and it is a skillful art to extract something in cross examiner’s favour out of the lips of his opponent. When a specific assertion made by witness in examination- in-chief substantially relevant to the controversy not challenged by putting contrary suggestion, such assertion could be given full credit.

13. The procedure for filing the petition for probate is endow with under Section 276 the Succession Act 1925. In Section 281, it is discernibly mentioned that where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect. In the same section, a specimen of witness verification/declaration is also provided. In the Misc. Application No.166/1986, filed by the Rijhoomal (Appellant), the declaration of witness Mohsin Ali is available and in the petition filed by the respondent Tara Chand, one Kishanchand has signed the declaration being one of the witnesses of the will. Section 295 of Succession Act deals with the state of affairs in the contentious cases in which the proceedings shall take, as nearly as may be, the form of a regular suit according to the provisions of C.P.C in which the petitioner for probate or letters of administration, as the case may be, shall be plaintiff and the person who has appeared to oppose the grant shall be the defendant.

14. The respondent Tara Chand had expired and in spite of diligent search made through concerned Mukhtiarkar, whereabouts of his legal heirs are not known, even the Mukhtiarkar in his final report clearly stated that respondent has not left any surviving legal heirs. Under Sub-Rule 4 of the Rule 4 of Order 22 C.P.C, it is undoubtedly provided that when within the time limited by law no application is made or intimation is given under sub-rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such defendant, have the same force and effect as if it had been pronounced before the death took place. It is also obvious that under Rule 11 of Order 22, the entire Order 22 has been made applicable to appeals also with slight modification and variation of the nomenclature of plaintiff and defendant as appellant and respondent.

15. It is a fact that respondent died during the pendency of appeal. The Mukhtiarkar & City Survey Officer, Hyderabad vide his report dated 20.12.2008, intimated this court that one Kumar Thadani appeared before Mukhtiarkar through his advocate and claimed to be nephew of deceased Tara Chand but finally, Mukhtiarkar in his report concluded that deceased Tara Chand had left no legal heir and there exists vested interest of persons from Minority Community in the House No.2453/4 measuring 166-04 Sq.yds, Ward-A. Since nobody in the capacity of legal representative of the respondent has come forward to defend nor any legal representative intimated the court regarding the factum of the death of respondent in terms of Order 8 Rule 13 C.P.C, therefore, this court has left with no other option but to decide the appeals which are pending in this court since 1998.

16. The upshot of this discussion is that while passing the impugned Judgment dated 30.5.1998 in Misc. Application No. 10/1983 and Misc. Application No.166/1986, the learned IInd Additional District & Session Judge, Hyderabad misread and disregarded the evidence going to the root of the case, consequently, the impugned judgments are set aside and matter is remanded to the trial court to pass speaking order after evaluating and appreciating the evidence available on record within a period of three months.

17. The powers of District Judge are provided under Section 283 of the Succession Act which inter alia provides that the District Judge or District Delegate may if thinks proper examine the petitioner in person upon oath, require further evidence of the due execution of the will or the right of the petitioner to the letters of administration and issue citation calling upon all persons claming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. It is further provided in Sub-section (2) of Section 283 that the citation shall be fixed up in some conspicuous part of court house and also in the office of Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct. Keeping in view the above unambiguous and explicit provision of law, the learned trial court shall issue citation and also publish the same in vernacular newspaper. The learned trial court will also issue notice to the concerned Mukhtiarkar for making effort to bring the actual legal representative of Tara Chand on record if any and in case any person cause his appearance in the capacity of legal representative, then the learned trial court will first determine his status in terms of Order 22 Rule 5 C.P.C before proceeding further with the matter.

18. For the foregoing reasons, both the appeals are disposed of in the aforementioned terms along with pending application.

Judge