HOSHIAR KAUR Vs. SURJIT KAUR

JUDGEMENT

(1.) CONCURRENT findings have been recorded by the Courts elow in the present appeal. Learned counsel for the appellant contends that no reasons had been stated in the Will and there were no circumstances which could justify depriving the daughter of any share in the property of the deceased. This contention is without any merit. The testator has stated in the will that he had given enough to his daughter in marriage and otherwise. Thus, he was not desirous of bequeathing any further property to the daughter.

(2.) SECONDLY , the learned Counsel argued that no issue had been framed though the plaintiff had raised a specific plea in the plaint that property in question was a joint Hindu Family Property. Resultantly, the impugned judgments were suffering from error of law. This contention again is without any substance. The appellant participated in the trial without any protest and with complete knowledge of the controversies arising in the case. Admittedly, no application was filed for framing of additional issues. The parties led evidence to prove their respective pleaded case. No evidence was led to prove that the property subject matter of the suit was joint Hindu Family Property. The appellant did not raise this contention even before the first Appellate Court. In fact in the memorandum of appeal filed before the First Appellate Court no ground was taken that an issue was claimed before the trial Court and the trial Court ought to have framed such an issue. A party by its conduct and effective participation in the suit can always waive an issue. The appellant not only waived the issue but actually invited judgment upon conclusion of its evidence and arguments without raising any protest. The appellant, therefore, cannot claim any advantage as a result of his own conduct and waiver on his part. Reference in this regard can be made to the judgment of this court in R.S.A. No. 1497 of 1998 titled as Harji and others v. Mool Chand and others, 2002(1) R.C.R.(Civil) 20, decided on 21.12.2000, where this Court following the judgments of Hon'ble Supreme Court of India, held that principles of waiver was applicable in regard to framing of issues keeping in view the facts and circumstances of a given case and more particularly when no prejudice was caused to a party. No merit. Dismissed in limine. Petition dismissed.