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NON-REPORTABLE     

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

             CIVIL APPEAL NO.1811 OF 2007

RAJ KUMARI & ANR.           ...    APPELLANT(s)                 VS.

    KRISHNA & ORS.               ...   RESPONDENT(s)

   J U D G M E N T

ANIL R. DAVE, J.

1. Being aggrieved by the judgment delivered in Regular  

Second Appeal No.959 of 2001 and CM No.4711-C of 2002 and  

Cross Objection No.17-C of 2001, dated 21st September, 2005,  

by the High Court of Punjab & Haryana at Chandigarh, this  

appeal has been filed by the original defendants.

2. Facts leading to the present litigation in a nutshell  

are as under :

Late Shri Atam Parkash had married to Smt. Raj Kumari  

on 20th September, 1961 as per Hindu rites and customs and  

by that marriage, they had a daughter named Ms. Nishoo @  

Meeshu.  During  the  subsistence  of  the  afore-stated  

marriage,  late  Shri  Atam  Parkash  also  married  to  Smt.  

Krishna on 16th June, 1970 at Arya Samaj, Anarkali, Mandir  

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Marg, New Delhi, and by the second marriage they had a  

daughter named Payal.

3. During  his  life  time,  late  Shri  Atam  Parkash  had  

executed a Registered Will on 9th April, 1982 and by virtue  

of  which  he  had  bequeathed  his  movable  and  immovable  

properties  in  favour  of  Smt.  Krishna  and  his  daughter  

Payal.

4. Upon  death  of  Shri  Atam  Parkash,  his  second  wife  

Krishna and his daughter Payal had filed Civil Suit No.322  

of  1996  in  the  Court  of  learned  Civil  Judge,  Junior  

Division, Sonepat (Haryana) for a declaration to the effect  

that they were the only heirs of late Shri Atam Prakash and  

therefore, they were entitled to all the properties of late  

Shri Atam Parkash. In the said Suit, Smt. Raj Kumari, the  

first  wife  of  late  Shri  Atam  Parkash  and  his  daughter,  

Nishu,  were  defendants.  The  Trial  Court  came  to  the  

conclusion that in pursuance of the Will executed by late  

Shri  Atam  Parkash,  movable  and  immovable  properties  

mentioned  in  the  Will  were  to  be  inherited  by  the  

plaintiffs and so far as other properties, which were not  

specifically mentioned in the Will, including pension and  

other retirement benefits, which would arise upon death of  

late Shri Atam Parkash, should be given to all the legal  

heirs, i.e., the defendants, namely, (i) Smt. Shanti Devi,  

mother of the deceased, (ii) Smt. Raj Kumari, his first  

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wife and (iii) Nishoo, his daughter and (iv) his daughter  

Payal, Plaintiff No.2, in accordance with the provisions of  

the Hindu Succession Act.

5. Being aggrieved by the judgment and decree passed by  

the trial court, three appeals had been filed before the  

Additional  District Judge, Sonepat, and all the appeals  

were dismissed.

6. The  present  respondents,  namely,  the  original  

plaintiffs, had filed Regular Second Appeal No.959 of 2001  

before the High Court and the High Court was pleased to  

allow the said appeal.  By virtue of the impugned judgment,  

the High Court has held that all the properties including  

the benefits in the nature of pension, etc., should be  

given to the plaintiffs and therefore, this appeal has been  

filed by the original defendants challenging the validity  

of the said judgment.

7. We have heard the learned counsel appearing for the  

appellants,  who  has  submitted  that  the  High  Court  has  

committed  a  grave  error  by  allowing  the  appeal  without  

framing a substantial question of law.

8. It has been further submitted by him that there were  

three shops belonging to late Shri Atam Parkash as on 9th  

April, 1982 and the said shops had not been referred to in  

the afore-stated Will.  The said shops ought to have been  

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treated as having been inherited by the present appellants,  

i.e., the first wife and daughter Nishoo.

9. It has been further submitted that the Will which had  

been executed on 9th April, 1982, is not a valid Will and  

therefore, all the courts below were in error by declaring  

that the plaintiffs were rightful heirs of late  Shri Atam  

Parkash.

10. Lastly, it has been submitted by him that late Shri  

Atam Parkash was an employee of Haryana State Electricity  

Board and as per rules & regulations pertaining to service  

conditions of its employees, pension and other retirement  

benefits  ought  to  have  been  given  to  the  present  

appellants,  i.e.,  Smt.  Raj  Kumari,  the  first  wife  and  

Nishoo, the daughter of the deceased.

11. The respondents have been duly served and Mr. Bhaskar  

Y. Kulkarni,  has  filed  Vakalatnama  for  the  respondents.  

Today, Mr. Vikas Mahajan, learned counsel, who has appeared  

for Mr. Bhaskar Y. Kulkarni, has submitted that he has no  

instructions,  especially in  view  of  the  fact  that  Shri  

Kulkarni had given “No Objection Certificate” to another  

Advocate, whose name he does not remember.  However, he has  

made efforts to assist the Court.  He has submitted that  

the impugned judgment delivered by the High Court is just  

and proper because, according to him, when a Will had been  

executed in favour of the original plaintiffs/respondents  

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herein, pension and other retirement benefits, which had  

arisen by virtue of service rendered by late Shri Atam  

Parkash to the Haryana State Electricity Board should also  

be given to the respondents.  He has further submitted that  

the Will was genuine and as it had been proved before the  

Trial Court, this Court normally should not look into the  

question with regard to validity of the Will, especially  

when execution of a Will is a question of fact.

12. The  learned  counsel  has  thus  submitted  that  the  

impugned judgment is just and proper and this Court should  

dismiss the appeal.

13. Upon hearing the leaned counsel and going through the  

relevant  record,  in  our  opinion,  the  High  Court  has  

committed an error by coming to a conclusion that even  

pension and other benefits, which late Shri Atam Parkash  

would have got upon his retirement, should be given to Smt.  

Krishna and Payal.

14. Normally, pension is given to the legally wedded wife  

of a deceased employee.  By no stretch of imagination one  

can say that the plaintiff, Smt. Krishna was the legally  

wedded wife of late Shri Atam Parkash, especially when he  

had a wife, who was alive when he married to another woman  

in Arya Samaj temple, as submitted by the learned counsel  

appearing for the appellants.  We are, therefore, of the  

view  that  the  High  Court  should  not  have  modified  the  

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findings arrived at and the decree passed by the trial  

court  in  relation  to  the  pensionery  benefits.   The  

pensionery benefits shall be given by the employer of late  

Shri Atam Parkash to the present appellants in accordance  

with the rules and regulations governing service conditions  

of late Shri Atam Prakash.

15. So far as the submissions with regard to three shops  

are concerned, we are of the view that the said submissions  

cannot be accepted. It is an admitted fact that the said  

three shops had been constructed in a premises which has  

been  bequeathed  by  late  Shri  Atam  Parkash  to  the  

plaintiffs/respondents.  The details of the said house had  

been given in the Will which had been executed on 9th April,  

1982.  The said shops are part of House No.6-A, Khanna  

Colony,  Sonepat.   If  the  said  house  has  been  clearly  

described in the Will and it has been bequeathed to the  

plaintiffs, we see no reason to say that the findings of  

the trial court are incorrect.  It is also pertinent to  

note that by virtue of the Will executed by late Shri Atam  

Parkash all immovable properties belonging to the deceased  

have been bequeathed to the plaintiffs.  In such a case,  

the immovable properties, which have been described in the  

said Will, would invariably be inherited by the plaintiffs.  

Therefore, we decline to accept the submissions made by the  

learned  counsel  for  the  appellants  that  the  said  three  

shops should be inherited by the present appellants.

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16. For the reasons stated hereinabove, we set aside the  

impugned judgment delivered by the High Court and restore  

the  decree  passed  by  the  trial  court,  which  had  been  

confirmed  by  the  Appellate  Court.   The  appeal  stands  

disposed of as allowed with no order as to costs.       

      ..............J. [ANIL R. DAVE]

..............J. [R.K. AGRWAL]

..............J. [R. BANUMATHI]

New Delhi; 26th February, 2015.

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