Smt Seema Agarwal vs Smt Primila

Hon''ble Rajiv Sharma, J.—Heard Mr. Umesh Kumar Srivastava, learned Counsel for the applicant/appellant and Mr. B.K. Saxena, learned Counsel appearing for the respondents.

The instant appeal has been filed in the year 2007 and no substantial question of law was framed, while admitting the appeal, though framed at the time of writing down the judgment. After framing the substantial question of law, the appeal was allowed vide judgment and order dated 9.8.2007 and the matter went upto the Hon''ble Apex Court.

Hon''ble Apex Court, vide judgment and order dated 5.5.2011, allowed the Civil Appeal, which is as under:-

Leave granted.

We have heard learned Senior counsel appearing for the parties at length.

We are of the considered view that the High Court ought to have formulated substantial question of law before proceeding to decide the Second Appeal on merit. This Court in a number of judgments has clearly laid down the principle that the High Court ought to have formulated substantial question of law before deciding the same on merits. In the case of Gurdev Kaur and Others Vs. Kaki and Others, , this Court had elaborately dealt with the cases decided by this Court on the same principle.

On consideration of the totality of facts and circumstances of this case, in our considered view, the impugned judgment of the High Court cannot be sustained and the same is accordingly set aside and we remit the matter to the High Court for deciding the same afresh after formulating substantial question of law.

Since the matter has remained pending in this Court for quite some time, we request the High Court to dispose of the Second Appeal as expeditiously as possible.

To avoid any delay, we direct the parties to appear before the High Court on 17.5.2011.

With these observations, this appeal is disposed of, leaving the parties to bear their own costs.

Learned Counsel for the parties submit that the substantial questions of law which have been framed at the time of writing down judgment are only the substantial questions of law, involved in the instant appeal.

Accordingly, the Second Appeal is admitted on the following questions of law, which arise out of the orders passed by the subordinate Courts:-

(1) Whether bequest in a Will without any word of limitation or restriction, specifically bequeathing ''full possession'' and ''full claim'' over ''the moveable and immoveable property'' can be termed as a ''life estate'' while interpreting the Will of an Indian Christian despite the principle of ''life estate'' or ''widow estate'' are unknown and unrecognised under Christian Law, though available under Hindu Law?

(2) Whether while interpreting a Will of an educated person, well conversant with the English language, the words used in the Will, knowing well the difference of meaning of word ''and'' as well as ''or'' used both the words in the Will wherever he meant and desired so, can be opened to the Court to substitute the word ''or'' in place of ''and'' at once place to give a different meaning than the intention of the testator?

(3) Whether despite specific observation by the Hon''ble Supreme Court in previous litigation between the parties that for claim of ownership the parties may bring a title suit if so desire, through original suit for possession in respect of possession of only a part of suit property was pending even at that stage but without amending the suit or bringing a separate suit for declaration of title, the decree of possession can be passed?

(4) Whether the learned Appellate Court below has not misconstrued the law as enunciated by the Hon''ble Apex Court in Banarasi and others Versus Ramphal reported in 2003 (5-6) SBR 260, by holding that the learned Court has jurisdiction to go into the question of fact which has become final and conclusive between the parties under the judgment and decree passed by the Trial Court especially when no cross objection/Cross Appeal was preferred against the finding recorded by the Trial Court, which is based on wrong head note contrary to judgment?

As the matter has already been expedited by the Apex Court, list this appeal within one month. It is made clear that when the case is next listed, parties'' counsel shall come prepared for final hearing.

In the meantime, Registry is directed to summon the record from the lower Court.