MODEL FORMAT OF NOTES OF
ARGUMENTS IN SUIT FOR DECLARATION IN APPEL
In the Court of the ---------- District Judge.
place
A.S.No. /20
Name of the appellant - Appellants/Plaintiffs
Vs
Name of the Respondent -Respondents/Defendants
Argument Notes on behalf of Respondents
--------------------------------------------------------
1). The Respondents
humbly submits that, the Appellants as Plaintiffs filed a suit for declaration
to declare plaintiffs are legal heirs of one ----- and for recovery of possession in O.S.No. /20 on
the file of Sub Judge, -----. After
heavy contest, the suit of the plaintiffs was dismissed by Trial Court on ------.
As against the Judgement and Decree passed by the Trial Court , the plaintiffs
as Appellants have preferred this
appeal.
2). The Respondents humbly submits that,
there was a partition on ------ as per EXA1 between ------ and ------- who are
the sons of -------. In the above said EXA1 partition, the plaint schedule
property was allotted to the share of -----. The above said ------- died on ------
intestate leaving his wife -------, the Daughters ------- and -------. The wife of ------- died in the year 1985. The daughter of ------ namely ------- died of ------. The another daughter of ---- namely ------
died on 10.03.2007. The above said
facts are admitted by the plaintiffs and Defendants.
3). The Respondents humbly submits that, the case of the plaintiffs is that, since -------
died leaving her daughters ---- and ------ and hereafter ------- died leaving her
sister ------ and ----- died issueless, hence as per section 15(2)(a) of Hindu
Succession Act, the plaint schedule property revert back to the original owner ------- and this plaintiffs are legal heirs of -------
who is the own brother of -----. Hence,
the plaintiffs have come forwarded with the
suit for declaration to declare they are the
legal heirs of -------. The plaint has
been filed by the plaintiffs under Order 7
Rule 1, Section 26 CR along with section 2(a) of Hindu Succession Act. Section 2(a) of Hindu Succession Act deals with
applicability of Act. The Act will
apply to Hindus, Buddhist, Sikkims. Hence the suit framed by the plaintiffs Under
Section 2(a) of Hindu Succession Act is not maintainable. Further the prayer asked for by the plaintiffs
and the court fees paid by the plaintiffs are not correct. The plaintiffs valued their prayer Number one at Rs. ------- /- ( Rupees -----) and paid court fee Under
Section 25(a) of TN Act 14 of 1955. The
Market value of property can be assessed as per section 7 of TN Act 14 of
1955. If the prayer is against the
property, then only market value of the property can be assessed Under Section
7 of TN Act 14 of 1955. As already
submitted by the respondents is that, the first prayer is not asked for by the
plaintiffs against the property. The
first prayer is asked for by the plaintiffs to
declare their legal heir ship of one deceased ------. Hence, the plaintiffs ought to have valued
their prayers number one Under Section 25(d). Hence the plaintiffs have not properly framed
the suit.
4). The Respondents humbly submits
that originally the Plaintiffs have filed the
suit against one ------. The above said -------
has filed the written statement and in his written statement
he has stated that, his two brothers are necessary and proper parties to
the suit. There after only the
plaintiffs as petitioners have filed IA No.
/20 to implead 2nd Defendant in the suit. The above said application was allowed on -------. Further the plaintiffs have filed I A No. /20 to implead 3rd Defendant in the
suit. The above said application was
allowed on ------. Hence 3rd
Defendant was impleaded in the suit.
During the pendency of the suit 3rd defendant died. The plaintiffs have not taken any steps to
implead legal heirs of 3rd
defendant. Hence, the suit is abated.
Further the plaintiffs have not taken any steps even to record the death of 3rd
Defendant in the suit. Further the
plaintiffs have not filed any application Under Order 22 Rule 4(4) CPC seeking an exemption from impleading the legal heirs of
deceased 3rd defendant. Even
3rd defendant was set ex-party, without leave of the court, the Plaintiffs should implead the legal heirs of
deceased 3rd defendant. All
the defendants right in the plaint schedule property is based on Exhibit B8
will dated ----- which is executed by ------- from whom the plaintiffs are claiming right in
the plaint schedule property. When claim
of the Defendants is based on ExhibitB8 will and when the plaintiffs have
accepted the written statement filed by the 1st Defendant and
impleaded 2,3 Defendants,the plaintiffs ought
to have impleaded legal heirs of deceased 3rd defendant. The right of the defendants in the schedule
property is in divisible. Hence, an abatement order passed against 3rd
Defendant will abate the whole suit.
This vital aspect was not considered by
the trial court. When the suit of the
plaintiffs is abated, then the suit has to be dismissed.
5). The Respondent humbly submits
that, the plaintiffs are relying upon section 15(2)(a) of Hindu Succession Act.
The plaintiffs have to prove the applicability of the above said section, to the present fact of case. It is not individual property of ------. When ----- dies and on the date of her death
any one of the legal heirs is available, then section 15(1) of Hindu Succession
Act will apply. The plaintiffs first of
all have to prove that, ----- died without any legal heirs as mentioned in
section 15(1) of Hindu Succession Act.
There is no pleadings in the plaint regarding this vital facts. First of all the plaintiffs have to prove that section 15(1) of Hindu Succession Act will not
apply to the present fact of the case.
Thereafter only, the Plaintiffs can invoke section 15(2) of Hindu
Succession Act In the cross examination of PW2 would deposed that, ‘---------------------------------------------------------------------------‘
This
part of cross examination will clearly raise a doubt regarding legal heir ship
of deceased -----. On the date of demise of ------
, if her husband is alive then section
15(1)(a) will apply. As per evidence of
PW2 -------- has got marriage with a person who is from ----- and subsequently
dispute arose between ----- and her husband and ------ came to -------- house.
On the date of demise of -------, if the ------- was not divorced by her
husband, her husband is a legal heir of ------.
Further, it is not clarified by the PW2
by reexamination to the effect that whether the husband of ------- predeceased
her wife or the husband of ------ died issueless. If the husband of ------- predeceased -------,
then applicability of section 15(1)(a) will
not arise. If the husband of ------ died
after demise of ------, then certainly section 15(1)(a) of the Act will
apply. If the husband of ----- inherited the share of the ------ as
per section 15(1) (a) of the Act, thereafter he died issueless,
then only section 15(2)(a) of the Act will apply. If the husband of ------ inherited the share
of ------- as per section 15(1) (a) of the Act and thereafter the husband of ------ died with issues section 8 of Hindu Succession Act will alone apply and section 15(2)(a) of the Act will not
apply. In the cross examination of PW2
categorically deposed that,
‘----------------------------------------------------------------------‘
Hence
as already submitted by the Respondents after demise of ------- the husband of --------
inherited share of -------- as per section 15(1)(a) of the Act. Thereafter if the husband of ------ died issueless, then only section 15(2)(a) of the Act
will apply and if husband of ------- died with legal heirs then section 8 of
the Act with Apply. To clarified this vital aspects, the plaintiffs ought
to have pleaded all the above said facts and ought to have lead independent
witness to speak about legal heir ship of -------. When the claim of the plaintiffs is based on
section 15(2)(a) of the Act, the plaintiffs should plead about non
applicability of sec 15(1) of the act.
For that there is no proper pleadings on the side of Plaintiffs. On the
side of the plaintiffs, they have stated that
as if the trial court has accepted the applicability of section 15(2)(a) of the
act in favour of Appellants. It is not
correct. The trial court has framed
issue No.1 and Additional issue No.1 that whether the plaintiffs are the legal
heirs of deceased --------. The trial
court has answered issue No.1 and Additional issue No.1 against the Appellants. Hence, the respondents need not to file any
objections or cross appeal in the present appeal as per order 41 Rule22
CPC.
6). The Respondents humbly submits that,
the Respondents are relying upon EXB8 will
which is under dispute. The case of the
Respondents is that, as per EXB8 will, the plaint schedule property belongs to
the defendants. The case of the Plaintiffs
is that EXB8, will is fabricated and created by the defendants. To prove the execution of EXB8 will the
defendants have examined DW5 who is attesting witness in the EXB8 will. The Respondents have clearly provedEXB8 will
by examine DW5 as per section 68 of Evidence Act. The contention of the Plaintiffs is that, as
per expert opinion the thumb impression of -----
is not tallied in EXB8 will. The expert was examined as CW1. In the cross examination of CW1she would deposed
regarding admitted thumb impression disputed thumb
impression. The cross examination of CW1 will disprove the validity of opinion. No evidential value can be given to expert opinion.
Further to strengthen EXB8 will is
genuine one, the defendants have marked EXB3 to B6, B9 in original. All the above said original documents are
standing in the name of -----. The above
said ----- was affected by Tuberculosis. The defendants have given treatment to -----. To prove
this fact, the defendants have produced EXB7 Medical Bills. So there is every possibilities for the ------
to execute to EXB8 will in favour of the
Defendants when EXB8 will is genuine one, the Plaintiffs are not entitled to any relief. The trial court has rightly held that exhibit
B8 will is proved by defendants in accordance with law. The finding of the trial court is correct.
7).
The Respondents humbly submits that in the Argument
note the Appellants relied upon so many
decisions which are not applicable to the
present fact of the case. The appellants
have relied upon order 1, Rule 9 CPC Order 1
Rule 9 CPC says No suit shall be dismissed on the ground of non-jointer of
necessary parties and misjoinder of parties.
The appellants have misunderstood what the arguments placed by the Respondents. If a party is not added in the suit and the
suit shall not dismissed on the ground of
Non-joinder of necessary party. That is
stated in order 1 Rule 9 CPC. If a party
is impleaded in the suit and during the pendency of the suit, if the parties
dies Order 22 CPC will apply not Order 1 Rule 9 CPC will apply. During the pendency of the suit if a party dies as per Article 120 of limitation Act
within 90 days his legal heirs should be impleaded. If within 90 days the legal heirs of deceased
is not impleaded as per Order 22 Rule 9 CPC the suit will abate. To set aside the abatement order within 60
days as per Article 121 of limitation Act the
application should be filed. In this
case Order 22 CPC will alone apply. In this case, the legal heirs of deceased 3rd
defendant is not impleaded as per Order 22 Rule 4(4) CPC the suit will
abate. Hence, in the Arguments Notes the
contention of the plaintiffs in respect of Order 1 Rule 9 is not correct. The plaintiffs have cited a citation reported
in CDJ 2001 (SC) 84. This citation is
also not applicable to present fact of the case. Since 3rd defendant died even before the trial court itself. The plaintiffs have relied so many situations
for the evidential value of expert opinion.
As per latest Apexcourt decision is that expert opinion, to corobate the evidence of expect should be in accordance with section 46 and 47 of Evidence Act CW1 evidence
is against expert opinion. CW1 has not filed reasoning sheets to show
how the expert has come to conclusion.
If the reasoning sheet is produced before the Honourable court and that
reasoning sheet is put in evidence, then only the court can come to conclusion
whether the report is based on the reasoning sheet. Hence, the expert opinion is not put in to
cross examination as per section 46 and 47 of evidence Act. The main arguments of the Appellants is that,
as per expert opinion EXB8 will is not a genuine one. It is not correct. The case of the plaintiff may fail on 2 grounds.
One is that if the case of the plaintiff is not proved and second is
that the case of the plaintiffs is disproved.
In the present case on the above said 2 grounds the case of the
plaintiffs is failed. Hence the
judgement and decree of the trial court is perfectly correct.
7).
It is therefore prayed that your honour may be pleased
to dismiss the appeal with throughout cost.
00 .00.20
Advocate of Respondents
In the Court of the ----------
District Judge
Place
A.S.No. /20
----------------------------------
Argument Notes on behalf
of Respondents
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Name of Advocate
ADVOCATE
Presented on 00.00.20
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