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1996 DIGILAW 147 (HP)

BABU RAM v. SHRIMATI ROSHAN DEVI

1996-08-27

R.L.KHURANA

body1996
JUDGMENT R.L.Khurana, J.: This Second Appeal has been directed by the plaintiff against the judgment and decree dated 26th September, 1989 of the District Judge, Kangra at Dharamshala, affirming the judgment and decree dated 7th may, 1986 of the Sub Judge First Class, Dehra. 2. The dispute between the parties pertains to the estate of deceased Moti Ram, who died issueless on 4th February, 1980. The plaintiff Babu Ram, who is the real brother of the deceased Moti Ram, is claiming the ownership and possession of the said property, hereinafter to be referred as the property in dispute, by way of succession being the natural legal heir of the deceased Moti Ram. The defendant Smt. Roshan Devi, on the other hand, has claimed herself to be the owner and in possession of the property in dispute, on the basis of a Will alleged to have been executed in her favour by the deceased Moti Ram on 27th May, 1968. The defendant is not related to the deceased Moti Ram, in any manner and the Will is alleged to have been executed in her favour in lieu of services rendered by her to the deceased during his life time. 3. After the death of the deceased Moti Ram, the necessary mutation of inheritance was sanctioned in favour of the defendant, on the basis of the registered Will, referred to above. The plaintiff has challenged the Will, on the ground that the same is false, fictitious and a frivolous document and is the result of fraud and misrepresentation and as such not binding on his rights. Further case of the plaintiff is that he and deceased Moti Ram are governed by agricultural custom of Kangra District, in the matters of alienation and succession, whereby the ancestral property cannot be alienated by way of Will or otherwise. The property in dispute is alleged to be ancestral in the hands of the deceased Moti Ram. 4. The defendant, while resisting the suit, denied the ancestral nature of the property in dispute and also the fact that the deceased was governed by agricultural custom in the matters of alienation and succession, whereby the ancestral property could not have been disposed of by way Will or otherwise. 5. On the pleadings of the parties, the following issues were framed by the trial court: 1. 5. On the pleadings of the parties, the following issues were framed by the trial court: 1. Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPP 2. Whether the suit is not within time ? OPD 3. Whether deceased Moti Ram executed 3 valid will in favour of defendants alleged ? OPP 4. Whether the will is false and frivolous and is the result of fraud and mis-representation as alleged ? OPP 5. Whether the parties are governed by agricultural custom in the matters of alienation and succession and if so what that custom is ? OPP 6. Whether the suit property is ancestral qua the plaintiff and Moti Ram deceased and, if so, its effect ? OPP 7. Whether the plaintiff is entitled to the declaration as prayed for ? OPP 8. Relief 6. The learned Sub Judge proceeded on the assumption that the deceased Moti Ram was governed by agricultural custom in the matters of alienation and succession and that the suit property was ancestral in the hands of deceased Moti Ram came to the conclusion that since the deceased had died issueless and the collaterals had failed to serve him, there was no prohibition in the agricultural custom of Kangra district prohibiting the making of the Will qua the ancestral property in favour of a stranger. The learned Sub Judge also came to the conclusion that the deceased Moti Ram had executed a valid Will in favour of the defendant. The suit of the plaintiff was accordingly dismissed, vide the judgment dated 7th May, 1986. 7. On an appeal having been carried before the learned District Judge, Kangra at Dharamshala, by the plaintiff, the learned District Judge, while affirming the judgment and decree of the learned Sub Judge, held, that no custom existed amongst the Brahmans of Palampur tehsil and Gaddis of Kangra tehsil, prohibiting the making of a Will in respect of ancestral property. The findings of the learned Sub Judge that a valid Will was executed by deceased Moti Ram, in favour of defendant, were also affirmed. Consequently, the appeal filed by the plaintiff was dismissed vide the impugned judgment and decree dated 26th September, 1989. 8. The findings of the learned Sub Judge that a valid Will was executed by deceased Moti Ram, in favour of defendant, were also affirmed. Consequently, the appeal filed by the plaintiff was dismissed vide the impugned judgment and decree dated 26th September, 1989. 8. While assailing the concurrent findings of the two courts below, with regard to the execution of the Will by deceased Moti Ram, in favour of the defendant and that there was no custom prohibiting the making of the Will qua the ancestral property, the learned counsel for the plaintiff, has contended that the evidence on the record is sufficient to show that the property was ancestral in the hands of deceased Moti Ram and that the deceased and the plaintiff arc governed by agricultural custom in the matters of alienation and succession whereby no Will could be executed in respect of the ancestral property. It has further been contended that even the execution of a valid Will by deceased Moti Ram does not stand proved on the record. 9. The learned counsel for the defendant, on the other hand, has supported the findings of the two courts below, for the reasons and on the grounds, detailed therein. 10. The learned counsel for the defendant at the very outset has raised a preliminary objection that the concurrent findings of the two courts below on a question of fact regarding the execution of a Will cannot be challenged and interfered with in the present Second Appeal. 11. In Ladli Parshad Jaiswal v. The Karnal Distillery Co. 1, Ltd. Karnal & Ors., AIR 1963 SC 1279, it was held that whether a particular transaction was vitiated, on the ground of undue influence, is primarily a decision on the question of fact and that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact howsoever gross or in executable the error may seem to be. 12. In Ramanuja Naidy v. V. Kanniah Naidu & Anr., JT 1996(3) SC 164, the question of genuineness of a sale -deed was involved. The trial Court and the first appellate court had upheld the genuineness of the sale -deed. The High Court in second appeal had set aside the concurrent findings of the two courts below as to the genuineness of the sale-deed. The trial Court and the first appellate court had upheld the genuineness of the sale -deed. The High Court in second appeal had set aside the concurrent findings of the two courts below as to the genuineness of the sale-deed. On further appeal before the Apex court, it was held: ".....The concurrent findings of the courts below that Ex.B-2, sale deed in favour of the first defendant is earlier in point of time and was genuine and valid is a finding of fact. Such a finding was not open to any challenge in Second Appeal. The learned single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code of Civil Procedure in the way he did. No question of law arose for consideration before the learned single Judge. The sole question that arose for consideration was, whether Ex.B-2, sale deed, in favour of the first defendant dated 5.5.1967, which is admittedly earlier in point of time to Ex.A-1 dated 5.6.1967, in favour of the plaintiff is genuine and valid ..." 13. The Apex court further held that in interfering with the concurrent findings of fact of the lower courts, the High Court acted in excess of the jurisdiction vested in it, under Section 100, Code of Civil Procedure. The High Court totally erred in its approach to the entire question, and in reappraising and reappreciating the entire evidence, and in considering the probabilities of the ease, to hold that the judgments of the courts below were perverse and that the plaintiff was not entitled to the declaration of tide to suit property and recovery of possession. 14. This court also in Dharmu alias Dharam Chand v. Hans Raj & Ors., RSA 491 of 1990, decided on 22nd May, 1996, has held that the concurrent findings of the courts below on a question of fact cannot be interfered with, unless there has been gross mis- appreciation of evidence by the two courts below. 15. In the present case, both the courts below have found, on the basis of the evidence led by the parties that the Will, Ex. D-I, was a valid Will, having been executed by the deceased Moti Ram, in favour of defendant. 15. In the present case, both the courts below have found, on the basis of the evidence led by the parties that the Will, Ex. D-I, was a valid Will, having been executed by the deceased Moti Ram, in favour of defendant. The present case is not the one where the decision of the two courts below was reached after placing the onus wrongly or based on no evidence or where there has been substantial error or defect in the procedure, persisting error or defect in the decision of the case on merits. The concurrent findings of the courts below have been arrived at after due appraisal and appreciation of evidence. Such findings, being on a question of fact, therefore, cannot be agitated before this court in the present Second Appeal. 16. The next question, which arises for the determination, is whether the property in dispute was ancestral in the hands of the deceased Moti Ram and whether the deceased Moti Ram and the plaintiff arc governed by agricultural custom in the matters of alienation and succession and, if so, what is that issues No.5 and 6, has proceeded on the assumption that it was admitted case of the parties that the deceased Moti Ram and the plaintiff were governed by. agricultural custom in the matters of alienation and succession and that the property in dispute was ancestral in the hands of the deceased Moti Ram. The learned District Judge also appears to have proceeded on the assumption that the property in dispute was ancestral in the hands of deceased Moti Ram. The defendant, in reply to para 4 of the plaint, vide her written statement dated 5th Octobcr,1983 has specifically denied the property in dispute to be ancestral in the hands of deceased Moti Ram and also the fact that the deceased Moti Ram and the plaintiff are governed by agricultural custom in the matters of alienation and succession. While appearing as Dw 6 also, the defendant has nowhere admitted the property in dispute to be ancestral in the hands of deceased Moti Ram. In fact, during the course of her cross-examination, no suggestion was put to her by the plaintiff that the property in dispute was ancestral in the hands of the deceased Moti Ram. While appearing as Dw 6 also, the defendant has nowhere admitted the property in dispute to be ancestral in the hands of deceased Moti Ram. In fact, during the course of her cross-examination, no suggestion was put to her by the plaintiff that the property in dispute was ancestral in the hands of the deceased Moti Ram. Nothing has come on the record to show that the defendant had at any time admitted the property in dispute to be the ancestral in the hands of the deceased Moti Ram or that he was governed by agricultural custom in the matters of alienation and succession. The two courts-below, therefore, committed an error in proceeding on the assumption as if it was admitted case of the parties that the property in dispute was ancestral in the hands of the deceased Moti Ram. 17. The documentary evidence placed on record by the plaintiff comprising of the revenue entries also does not prove the property in dispute to be ancestral in the hands of the deceased Moti Ram. The necessary mutations of inheritance, if any, sanctioned in favour of deceased Moti Ram in respect of the property in dispute, have not been placed on record to show that the same was inherited by him from his father, by way of natural succession". The plaintiff has not been able to discharge the onus placed upon him to prove the ancestral nature of the property in dispute. 18. In the absence of evidence on the record showing the ancestral nature of the property in dispute, the two courts below gravely erred in assuming the property in dispute to be the ancestral in the hands of deceased Moti Ram. 19. Since the property in dispute has not been proved to be ancestral in the hands of deceased Moti Ram, the question whether the deceased and the plaintiff arc governed by agricultural custom in the matters of alienation and succession loses its significance, since the deceased Moti Ram was free to deal with his self- acquired property, in any manner. 20. Assuming that the property in dispute was ancestral in the hands of the deceased Moti Ram, the plaintiff has not been able to prove that the deceased Moti Ram and the plaintiff are governed by agricultural custom, by virtue of which the deceased could not have disposed of the property in dispute by way of a will. 20. Assuming that the property in dispute was ancestral in the hands of the deceased Moti Ram, the plaintiff has not been able to prove that the deceased Moti Ram and the plaintiff are governed by agricultural custom, by virtue of which the deceased could not have disposed of the property in dispute by way of a will. The answer given to question No.85 of the Customary Law of Kangra District as complied by L. Middleton, shows that the Brahmans of Palampur tehsil and Guddis Kangra tehsil of Kangra District were not governed by agricultural custom with regard to the making of the will. Two instances have been quoted in the said answer to question No.86. The first instance pertains to the meetings to the making of the Will of the ancestral property by one Boga Brahaman of Palampur Tehsil in favour of Smt. Kirli. The second instance pertains to the making of a Will of the ancestral property by one Bogha Brahmin of Palampur tehsil in favour of Smt. Kirli. The second instance pertains to the making of a Will by one Smt. Sukhno, widow of Gaddi family of Kangral, tehsil in favour of one Daiju, her son-in-law the Wills in both the cases where upheld inspite of challenge by the collaterals. 21. The plaintiff, while appearing as his own witness, as PW 1 has merely stated that he and the deceased are governed by custom and that no gift or will 1 in respect of ancestral property can be made. However, he has failed to quota fl any instance with regard to the custom. 22. A custom to be valid must be proved to be ancient, certain, and reasonable, it being in derogation to the general rules of law, must be construed strictly. It is the duty of the parties setting up the custom to allege and prove the same. A custom has to be placed by clear and unambiguous evidence, that is, such evidence which the court can safely reply upon in coming to the conclusion with regard to the existence of a particular custom. 23. The other witnesses examined on behalf of the plaintiff also have not stated about the precise custom governing the plaintiff and the deceased Moti Ram nor any instance of such custom has been given by them. 23. The other witnesses examined on behalf of the plaintiff also have not stated about the precise custom governing the plaintiff and the deceased Moti Ram nor any instance of such custom has been given by them. The learned District Judge, therefore, has rightly come to the conclusion that the plaintiff and the deceased Moti Ram are not governed by agricultural custom in the matters of alienation and succession and that the will Ex.D-1 has been validly executed by deceased Moti Ram in favour of defendant. 24. As a result, the present appeal fails and the same is accordingly dismissed, leaving the parties to bear their own costs. -