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2002 DIGILAW 2 (HP)

SANT KUMAR v. ARYA SMAJ, DHARAMSALA

2002-01-01

R.L.KHURANA

body2002
JUDGMENT R.L. Khurana, J.—This second appeal has been directed by plaintiff No. .1, Sant Kumar, against the judgment and decree dated 19.5.2000 of the learned District Judge, Kangra at Dharamsala, affirming the judgment and decree dated 27.8.1998 of the learned Sub Judge 1st Class (I), Dharamsala. Plaintiffs No. 2 and 3 have been impleaded as proforma respondents No. 8 and 9 in this appeal. The appellant and respondents No. 8 and 9, are being collectively referred to as the plaintiffs hereinafter. 2. The present appeal stands admitted on 2.11.2000 on the following two substantial questions of law:— 1. Whether there has been mis-reading and mis-construction of oral as well as documentary evidence with regard to the execution of the Will Ex. DW. 4/A? 2. Whether the two Courts below have erred in dismissing the suit of the plaintiffs on account of non-joinder of necessary parties? 3. The dispute between the parties pertains to the estate of one Smt. Leelavati widow of Agya Ram, brother of plaintiffs father Dharam Chand. Such estate consists of immovable and immovable property, specifically detailed in the plaint. By virtue of a Will dated 22.7.1987 (Ex.DW4/A) the above-named Smt. Leelavati (who admittedly died on 17.8.1987) had created a trust in respect of her estate and had dedicated the same to defendant No. 1 Arya Samaj, Dharamsala, Defendant No. 2 is the Trust while defendants No. 3 to 7 are the trustees named in the Will. Plaintiff No. 1 Sant Kumar is also one of the trustees named in Will along with defendants No. 3 to 7. 4. The plaintiffs filed a suit for declaration that they are the owners and in possession of the estate of the deceased Smt. Leelavati. They also claimed permanent injunction for restraining the defendants from disposing of the movable properties forming part of such estate of the deceased Smt. Leelavati. 5. It was averred by the plaintiffs Late Shri Agya Ram (husband of deceased Smt. Leelavati) and his three brothers S/Shri Dharam Chand (father of the plaintiffs), Sohan Lal and Gian Chand constituted a joint Hindu Family. S/Shri Sohan Lal and Gian Chand died issueless. Therefore, Agya Ram and Dharam Chand continued to be members of Joint Hindu Family Out of the income of Joint Hindu Family, Shri Agya Ram on 29.11.1927 purchased immovable property at Dharamsala. S/Shri Sohan Lal and Gian Chand died issueless. Therefore, Agya Ram and Dharam Chand continued to be members of Joint Hindu Family Out of the income of Joint Hindu Family, Shri Agya Ram on 29.11.1927 purchased immovable property at Dharamsala. The said Shri Agya Ram executed a gift of such property in favour of his wife Smt. Leelavati without any right or authority since Shri Agya Ram could not have executed a gift qua joint Hindu Family property. The said gift, therefore, did not create any right in favour of the deceased Smt. Leelavati. Since the gift did not create any right, title or interest in favour of Smt. Leelavati, she had no right to execute the Will. The plaintiffs continued to be in possession of such property as joint Hindu Family property. It was also averred that the deceased Smt. Leelavati due to old age and illness was not in a fit state of mind to execute the Will. She was lying admitted in the hospital. The alleged Will dated 22.7.1987 is false and fabricated. 6. The defendants while resisting the suit pleaded that the deceased Agya Ram never constituted a Joint Hindu Family either with the plaintiffs or their predecessors-in-interest. The properties in the hands of deceased Agya Ram were his own properties and not Joint Family properties. Being the sole owner he was competent to execute the gift in favour of his wife Smt. Leelavati. A Will was validly executed by the deceased Smt. Leelavati and after her death the defendants are in possession of her estate in accordance with the Will. It was further pleaded that the plaintiff Sant Kumar had purchased some land from Smt. Leelavati out of the properties gifted to her by-her husband. Objections as to maintainability of the suit, absence of cause of action, limitation, estoppel and that the suit is bad for non-joinder of necessary parties were further raised. 7. On the pleads of the parties, following issues were framed by the learned trial Court:— 1. Whether the suit is not competent in the present form? OPD 2. Whether the plaintiffs have got no cause of action and locus standi to sue? OPD 3. Whether the suit is within time? OPD 4. Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD 6. OPD 2. Whether the plaintiffs have got no cause of action and locus standi to sue? OPD 3. Whether the suit is within time? OPD 4. Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction? OPD 5. Whether the suit is bad for non-joinder and mis-joinder of parties? OPD 6. Whether the act, conduct and acquiescence and silence of the plaintiff is a bar to the present suit and the plaintiffs have also waived their right to sue? OPD 7. Whether the plaintiffs are owners in possession of he suit property as rising members of the joint Hindu Family? OPP 8. Whether Smt. Leelavati executed a valid Will on 22.7.1987, if so, its effect? OPD 9. If issue No. 8 is not proved in the affirmative, then whether the Will is unnatural, invalid and not binding on he plaintiff? OPP 10. Relief. 8. The learned trial Court found issues No. 3,7 and 8 against the plaintiffs and issues No. 1,2,5,6 and 8 in favour of the defendants. Issue No. 4 was decided against the defendants as not having been passed. Consequent upon such findings, the suit of the plaintiffs was dismissed vide judgment and decree dated 27.8.1998. 9. The appeal preferred by the plaintiffs was dismissed on 19.5.2000. The learned District ludge while dismissing the appeal upheld the findings of the learned trial Court on all the issues except issues No. 1,2,3 and 6. The findings of the learned trial Court on issues No. 1,2,3 and 6 holding the suit to be not competent in the form laid, the plaintiffs having no cause of action, the suit being not within time and that the plaintiffs were estopped by their acts and conduct from filing the suit and have also waived their rights, were set aside. 10. The two Courts below, thus, arrived at the following concurrent findings:— (i) The deceased Agya Ram did not constitute a loint Hindu Family either with the plaintiffs or their predecessor-in-interest; (ii) The properties in the hands of the deceased Agya Ram were his self acquired properties; (iii) Smt. Leelavati had executed a valid Will Ex. DW4/A on 22.7.1987 in favour of the defendants; and (iv) The suit was bad on account of non-joinder of necessary parties, that is, the sisters of the plaintiffs. 11. DW4/A on 22.7.1987 in favour of the defendants; and (iv) The suit was bad on account of non-joinder of necessary parties, that is, the sisters of the plaintiffs. 11. I have heard the learned Counsel for the parties and have also gone through the record of the case. Question No. 2. 12. Admittedly, the plaintiffs have four sisters, namely, Smt. Sameshta Devi, Smt. Raksha Kumari, Smt. Aruna Kumari and Smt. Rajna Kumari. It has also been admitted by the learned Counsel for the plaintiffs during the course of hearing that in case the Will Ex.DW4/A is held to be invalid, then the above-named sisters of the plaintiffs would also inherit the estate of the deceased Smt. Leelavati along with the plaintiffs in equal shares. The two Courts below have concurrently held the above-named sisters of the plaintiffs to be necessary parties to the suit since the plaintiffs are claiming themselves to be the owners and in possession of the estate of Smt. Leelavati to the execution of their sisters. 13. It was contended on behalf of the plaintiffs that the two Courts below had erred in dismissing the suit of the plaintiffs on the ground of its being bad for non joinder of necessary parties. It was contended that an opportunity ought to have been afforded to the plaintiffs to implead their sisters as parties to the suit and only on the failure of the plaintiffs to implead them inspite of opportunity having been afforded, the suit could have been dismissed. 14. The learned Counsel for the defendants on the other hand contended that an objection as to the suit being bad for non-joinder of necessary parties was raised by the defendants in their written statement at the very first opportunity. No steps were taken by the plaintiffs to implead their sisters. In fact they contested the objection raised on behalf of the defendants not only before the trial Court but also before the first appellate Court. Once the sisters of the plaintiffs were held to be necessary parties and on the failure of the plaintiffs to implead them, the suit had to be dismissed in view of the proviso to Order 1 Rule 9, Code of Civil Procedure, and no further opportunity was required to be afforded to the plaintiffs. Once the sisters of the plaintiffs were held to be necessary parties and on the failure of the plaintiffs to implead them, the suit had to be dismissed in view of the proviso to Order 1 Rule 9, Code of Civil Procedure, and no further opportunity was required to be afforded to the plaintiffs. It was also contended that the suit was dismissed by the two Courts below not only on the ground of non-joinder of necessary parties but on merits as well. 15. Be it stated that in the present appeal an application being CMP No. 852 of 2000 has been made by the plaintiffs under Order 1 Rule 10 read with Section 151, Code of Civil Procedure, for impleading their four sisters as parties to the suit. Such application is being opposed by the defendants on the ground that parties cannot be impleaded at this stage. Such parties ought to have been impleaded in the trial Court when an objection to this effect was taken by the defendants. 16. In Het Ram and others v. Narain Singh and others, F.A.O. No. 121 of 2001, decided on 2.11.2001, the dispute between the parties was with regard to enjoyment of an easementary right as to the use of water. The water source regarding which easementary rights were being claimed by the plaintiffs therein was located in the land belonging to the State of Himachal Pradesh. An objection was inter alia raised by the defendants as to the suit being bad for non joinder of necessary party, that is, the State of Himachal Pradesh. The plaintiffs resisted the objection. An issue was, therefore, framed-whether the suit was bad for non joinder of necessary parties? The learned trial Court answered the issue in the affirmative by holding that State of Himachal Pradesh was a necessary party and due to its non joinder, the suit was bad. It was also held that certain other co-owners of the land through which enjoyment of water was being claimed were also necessary parties. The suit of the plaintiffs was dismissed both on merits as well as on the ground of non joinder of necessary parties by the learned trial Court. In appeal preferred by the plaintiffs before the first appellate Court, findings of the learned trial Court holding the suit to be bad for non-joinder of necessary parties were affirmed. The suit of the plaintiffs was dismissed both on merits as well as on the ground of non joinder of necessary parties by the learned trial Court. In appeal preferred by the plaintiffs before the first appellate Court, findings of the learned trial Court holding the suit to be bad for non-joinder of necessary parties were affirmed. The first appellate Court, however, after setting aside the dismissal of the suit remanded the case to the learned trial Court by holding that an opportunity ought to have been afforded by the trial Court to implead the necessary parties before proceeding to dismiss the suit. The defendants assailed the order of the first appellate Court remanding the suit to the trial Court by way of an appeal before this Court. In support of the order of the first appellate Court, a contention was raised on behalf of the plaintiffs that in view of the provisions contained in Order 1 Rule 10(2), Code of Civil Procedure, the Court had ample power to strike out or make additions of parties and as such the first appellate Court was well within its rights to direct the trial Court to give an opportunity to the plaintiffs to implead necessary parties. Assailing the order, it was contended on behalf of the defendants that in view of the proviso to Order 1 Rule 9, Code of Civil Procedure, the suit for want of necessary parties must fail and there is no question of giving an opportunity to the plaintiffs to implead the necessary parties when the defendants did not care to implead them inspite of an objection having been raised in this regard by the defendants. 17. A Division Bench of this Court after noting the case law on the subject, allowed the appeal, set aside the order of the first appellate Court and remanded the first appeal for disposal in accordance with law. It was held that no opportunity was required to be given to the plaintiffs to implead parties once the Court had come to the conclusion that the suit was bad for non joinder of necessary parties. 18. It was held that no opportunity was required to be given to the plaintiffs to implead parties once the Court had come to the conclusion that the suit was bad for non joinder of necessary parties. 18. The ratio laid down by the Division Bench of this Court applies to the present case on all fours and as such it is held that once the Court comes to the conclusion that the suit before it is bad for non-joinder of necessary parties, the suit has to be dismissed without affording the plaintiffs an opportunity to implead such necessary parties. 19. In Kanakarathanammal v. V.S. Loganatha Mudaliar and another, AIR 1965 SC 271, a Constitution Bench of the Supreme Court while interpreting Order 1 Rule 9, before addition of proviso, has held that for want of necessary parties the suit is bound to fail, though the Court can direct the necessary parties to be joined under Order 1 Rule 10(2) C.P.C. at the trial stage without prejudice to the plea of limitation of said parties. The learned Judges while examining the case in which the plaintiff had inherited the property of her mother under Section 12 of the Hindu Succession Act had failed to implead her brother who had also inherited the property along with her. The observations of learned Judges in paragraph 15 are:— "It is unfortunate that the appellants claim has to be rejected on the ground that she failed to implead her two brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under Section 12 of the Act. That, in fact/is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record. It is true that under Order 1 Rule 9 of the Code of Civil Procedure no suit shall be defeated by reason of the mis-joinder or nonjoinder of the parties, but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal. Even in such cases, the Court can under Order 1 Rule 10, sub-rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties plea of limitation. Once it is held that the appellants two brothers are co-heirs with her in respect of the properties left intestate by their mother, the present suit filed by the appellant partakes of the character of a suit for partition and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents. The estate can be represented only when all the three heirs are before the Court. If the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suits property, she took the risk and it is now too late to allow her to rectify the mistake. In Naba Kumar Hazra v. Radhashyam Mahish, AIR 1931 PC 229, the Privy Council had to deal with a similar situation. In the suit from which that appeal arose, the plaintiff had failed to implead co-mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co-mortagors were necessary parties and in the end, it was urged on his behalf that the said co-mortagors should be allowed to be impleaded before the Privy Council. In support of this plea, reliance was placed on the provisions of Order 1 Rule 9 of the Code. In rejecting the said prayer, Sir George Lowndes who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India." 20. Same view was taken in Vishnu Mahadeo Pandse v. The Rajen Textile Mills (P) Ltd. and another, AIR 1975 SC 2079; Sri Ram Paricha v. Jagannath and others, AIR 1976 SC 2335 and Profulla Chorone Requitte and others v. Satya Choron Requitte, AIR 1979 SC 1682. 21. Same view was taken in Vishnu Mahadeo Pandse v. The Rajen Textile Mills (P) Ltd. and another, AIR 1975 SC 2079; Sri Ram Paricha v. Jagannath and others, AIR 1976 SC 2335 and Profulla Chorone Requitte and others v. Satya Choron Requitte, AIR 1979 SC 1682. 21. Next come the question whether the sisters of the plaintiffs, who have been held to be necessary parties, can be permitted to be added as parties at this stage as prayed for by the plaintiffs in their application CMP No. 852 of 2000. It be stated that the plaintiffs before the trial Court as well as before the first appellate Court persisted in proceeding with the suit on the basis that they exclusively are the owners and in possession of the property in dispute. Even in the grounds of appeal before this Court the plaintiffs h^ive not shown their willingness and readiness to join the necessary parties. They have in fact assailed the findings of the two Courts below holding their sisters to be necessary parties. Since the plaintiffs had failed to implead their sisters and persisted in not joining them despite the plea taken by the defendants, it is now too late to allow the plaintiffs to rectify the mistake by joining their sisters as parties. [See: Kanakarathanammal v. VS. Loganatha Mudaliar and another, AIR 1965 SC 271]. 22. Resultantly, the application CMP No. 852 of 2000 made by the plaintiffs cannot be allowed and the same is dismissed. 23. There is yet another aspect of the case. A perusal of the will Ex. DW4/A shows that some moveable properties comprising of gold ornaments were bequeathed by the deceased Smt. Leelavati in favour of Smt. Bala and Smt. Vijay in lieu of services being rendered by them to her. Since the Will is being assailed by the plaintiffs under which Will the said two ladies are beneficiaries they are also necessary parties to the suit. These ladies have not been impleaded as parties and the suit is bad for their non-joinder as well. 24. No error has been committed by the two Courts below in dismissing the suit on the ground of non-joinder of parties. As stated above, the suit of the plaintiffs was dismissed on merits as well and not only on the ground of non-joinder of necessary parties. The question is answered accordingly. Question No. 1. 25. 24. No error has been committed by the two Courts below in dismissing the suit on the ground of non-joinder of parties. As stated above, the suit of the plaintiffs was dismissed on merits as well and not only on the ground of non-joinder of necessary parties. The question is answered accordingly. Question No. 1. 25. The two Courts below have concurrently held that Will Ex. DW4/ A has been validly executed by the deceased Smt. Leelavati. The findings as to the execution of a Will are pure findings of fact and not open to interference in the present second appeal. 25. This Court in Babu Ram v. Shrimati Roshan Devi, 1997(2) Cur. L.J. 251 (H.R); Dharmu alias Dharam Chand v. Hans Raj and others, 1996(2) Cur. L.J. 153 (H.R), and in Smt. Parkash Devi v. Suit. Shanti Devi and others, 1996(2) Cur. L.J. 376 (H.P.), has held that the question regarding the execution of the Will is purely a question of fact and the same cannot be interfered with in second appeal. 26. In Ramanuja Naidu v. Kanniah Naidu and another, 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. 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-l dated 5.6.1967, in favour of the plaintiff is genuine and valid....." 27. 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-l dated 5.6.1967, in favour of the plaintiff is genuine and valid....." 27. 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 case, to hold that the judgments of the Courts below were perverse and that the plaintiff was not entitled to the declaration of title to suit property and recovery of possession. 28. In Pakeerappa Rai & Seethamma Henqsu D by. LRs and others, JT 2001(5) SC 537, it has been held by the Honble apex Court that the High Court in exercise of the powers under Section 100, Code of Civil Procedure, cannot interfere with the erroneous finding of fact howsoever the gross error seems to be. 29. The learned Counsel for the plaintiffs by placing reliance on Mohd. Yunus v. Gurbax Singh, 1995 Suppl. (1) SCC 418, has contended that this Court in second appeal can interfere with the concurrent findings of the Courts below since there has been gross mis-appreciation of evidence going to the roots of the matter. 30. Admittedly, the deceased was lying admitted in the hospital and the will was executed by the deceased in the hospital. It was also presented for registration by her in the hospital. Nothing has come on the record with regard to the ailment from which the deceased was suffering. The onus was on the plaintiffs to show that due to illness the mental faculties of the deceased were affected and she was not possessing a sound state of mind. No such evidence is forthcoming. DW 3 Dr. K.C. Malhotra, the then Chief Medical Officer of District Hospital, Dharamshala, where the deceased was an indoor patient, had certified the deceased Smt. Leelavati to be in a fit state of mind by appending an endorsement to this effect on the will. No such evidence is forthcoming. DW 3 Dr. K.C. Malhotra, the then Chief Medical Officer of District Hospital, Dharamshala, where the deceased was an indoor patient, had certified the deceased Smt. Leelavati to be in a fit state of mind by appending an endorsement to this effect on the will. DW 4 Swami Sumeda Nand who is one of the attesting witnesses of the will Ex. DW4/A has proved on the record the due execution of the will by the deceased Smt. Leelavati. He is absolutely an independent witness. There is no reason to disbelieve him. 31. In the present case it is evident that the trial Court and the first appellate Court have found on the basis of evidence led by the parties that the Will Ex. DW4/A was validly executed by the deceased Smt. Leelavati. 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. The concurrent findings of the two Courts below as to due execution of the Will Ex. DW4/A by the deceased Smt. Leelavati have been arrived at after due appraisal and appreciation of evidence. 32. As a result, the present appeal fails and the same is accordingly dismissed leaving the parties to bear their own costs. Appeal dismissed.