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2003 DIGILAW 515 (PNJ)

Kesar Bai (Deceased By L. R. ) v. Ran Singh

2003-04-09

SATISH KUMAR MITTAL

body2003
Judgment 1. The defendants have filed this Regular Second Appeal against the judgment and decree passed by District Judge. Rohtak, vide which the appeal filed by the plaintiff-respondent against the judgment and decree of the trial Court was allowed and suit of the plaintiff-respondent was decreed. 2. The brief facts of the case are that one Mauji Ram was owning 30 Bighas of land. He was having three sons and two daughters. On 9-1-1985, he expired. On 22-2-1985, the mutation of his inheritance was sanctioned in favour of all his three sons and two daughters in equal share on the basis of natural succession. Subsequently, one of his sons, namely Ran Singh (plaintiff-respondent), contested the aforesaid mutation in the Revenue Court. He set up a Will dated 18-12-1984 alleged to have been executed by the aforesaid Mauji Ram bequeathing 15 Bighas of land out of the aforesaid 30 Bighas in his favour in lieu of the services rendered by him; and the remaining 15 Bighas were given to his other two sons. The said Will was unregistered. The Revenue Court did not find the said Will as a genuine document and held the same to be a forged one. Therefore, vide order dated 15-9-1987, passed by the Assistant Collector IInd Grade, the sanctioning of aforesaid mutation in favour of all the legal heirs of deceased Mauji Ram was confirmed and the aforesaid Will was rejected. 3. After failing in the revenue Court, the plaintiff-respondent filed the present suit for permanent injunction and declaration on 14-10-1987 by alleging therein that 20 years ago, his father gave him 15 Bighas of the agricultural land in a family settlement. The Girdawari of the said land was sanctioned in his name. Thereupon, he became owner in possession of the said 15 Bighas of land. It was further alleged by the plaintiff-respondent that the defendants were raising objections to the aforesaid land given to him in the family settlement. Ultimately, while confirming the said family settlement, his father executed a Will dated 18-12-1984 in his favour by giving him 15 Bighas of land under the said Will. It was further alleged by the plaintiff-respondent that the defendants were raising objections to the aforesaid land given to him in the family settlement. Ultimately, while confirming the said family settlement, his father executed a Will dated 18-12-1984 in his favour by giving him 15 Bighas of land under the said Will. But the said Will was illegally not recognised by the revenue authorities and the mutation of the land owned by his father was wrongly sanctioned in favour of all of his legal heirs in equal shares and the said mutation is wholly illegal, null and void and the same is not binding upon his rights. It was further alleged that under the guise of the aforesaid mutation, the defendants, who are the remaining sons, daughter and son of a deceased daughter of Mauji Ram, are trying to dispossess the plaintiff-respondent from 15 Bighas of land which was given to him by his father, which necessitated him to file the present suit. The plaintiff also prayed for a decree for declaration to the effect that he is owner in possession of 15 Bighas of land mentioned in the plaint and the defendants are having no right, title or interest in the same and the mutation dated 22-2-1985 sanctioned in their favour qua the aforesaid 15 Bighas of land is illegal, null and void and not binding on his rights. 4. The defendants filed two separate sets of written statement. One set of written statement was filed by defendants Nos. 1 to 3 and another was filed by defendants Nos. 4 and 5. All the defendants contested the suit on similar grounds. It was alleged that the property in the hands of Mauji Ram was ancestral property. He never entered into any family settlement with the plaintiff by giving 15 Bighas of land to him. He also did not execute any Will in favour of the plaintiff. The alleged Will dated 18-12-1984 was a forged document and was got prepared by the plaintiff after the death of Mauji Ram. The mutation of inheritance of the land owned by Mauji Ram was sanctioned in favour of all his legal heirs i.e. three sons and two daughters in equal shares according to natural succession by Assistant Collector IInd Grade. The aforesaid mutation was challenged by the plaintiff before the revenue Court on the basis of the alleged Will. The mutation of inheritance of the land owned by Mauji Ram was sanctioned in favour of all his legal heirs i.e. three sons and two daughters in equal shares according to natural succession by Assistant Collector IInd Grade. The aforesaid mutation was challenged by the plaintiff before the revenue Court on the basis of the alleged Will. The revenue authorities did not accept the aforesaid forged Will and claim of the plaintiff was finally rejected vide order dated 15-9-1987. The said order was not challenged by him in the instant suit and the same has become final. It was specifically pleaded that the plaintiff is not in possession of the disputed land and the suit for permanent injunction was not maintainable. It was also pleaded that the suit land was ancestral in the hands of Mauji Ram, who was not competent to alienate the said land by way of Will or gifts. Therefore, the plaintiff is not entitled to be declared as owner in possession of 15 Bighas of land on the basis of the aforesaid forged Will. 5. On the basis of the pleadings of both the parties, the learned trial Court framed various issues including the issue as to whether the Will dated 18-12-1984 alleged to have been executed by Mauji Ram in favour of the plaintiff is valid and whether the suit land was ancestral in nature in the hands of Mauji Ram deceased and if so to what effect? 6. The learned trial Court dismissed the suit of the plaintiff. On the issue of validity of the Will it was held that the alleged Will was a forged Will and was surrounded by suspicious circumstances, therefore, the same cannot be relied upon; and the mutation of the land of Mauji Ram sanctioned in favour of his legal heirs on the basis of natural succession was upheld. Regarding the nature of land, it was held that the land in question in the hands of Mauji Ram was ancestral in nature and Mauji Ram was not competent to alienate the same by way of gift. Regarding the alleged family settlement and possession, it was held that no such family settlement was arrived at between Mauji Ram and the plaintiff, vide which possession of 15 Bighas of land was given to him. It was further held that the plaintiff is not in possession of the land in question. Regarding the alleged family settlement and possession, it was held that no such family settlement was arrived at between Mauji Ram and the plaintiff, vide which possession of 15 Bighas of land was given to him. It was further held that the plaintiff is not in possession of the land in question. After recording the aforesaid findings, the suit for permanent injunction and declaration filed by the plaintiff was dismissed. 7. Against that judgment, the plaintiff-respondent filed appeal before the learned first appellate Court. The said appeal was allowed. The judgment and decree passed by the trial Court was set aside and the suit of the plaintiff-respondent was decreed. The learned first appellate Court has upheld the Will dated 18-12-1984. It was held that the plaintiff has duly proved its execution and the same is not surrounded by any suspicious circumstances. Regarding the nature of the land in dispute, it was held that the defendants have failed to establish that it is ancestral land. The learned first appellate Court has held that out of the land in dispute, Mauji Ram inherited some land from one Lijje, who was his collateral. The said portion of the land inherited by Mauji Ram from Lijje shall be deemed to be his self acquired property and not the ancestral land in his hand. It was further held that the aforesaid non-ancestral portion of the land cannot be separated from the ancestral portion of the land as both these portions have mixed and have become inseparable. In that situation, it was held that whole of the land in the hand of Mauji Ram will become non-ancestral. Therefore, Mauji Ram was competent to alienate 15 Bighas of land out of the disputed land in his hand by executing Will in favour of the plaintiff. 8. Feeling aggrieved against the aforesaid judgment and decree passed by the first appellate Court, the defendants have filed the instant Regular Second Appeal. 9. Learned counsel for the appellant has raised the following two substantial questions of law before me while assailing the judgment and decree passed by the learned first appellate Court : i) Whether the execution of the Will dated 18-12-1984 (Ex. P1) executed by Mauji Ram in favour of the plaintiff has been duly proved as per the requirements of law and the same is not surrounded by any suspicious circumstance? P1) executed by Mauji Ram in favour of the plaintiff has been duly proved as per the requirements of law and the same is not surrounded by any suspicious circumstance? ii) Whether the land inherited by Mauji Ram from his collateral Lijje can be said to be the ancestral land in the hand of Mauji Ram? If not, whether such property, if mixed up and put in hotch pot with the ancestral property in such a manner that it cannot be separated, is deemed to be the ancestral property or the self acquired property? 10. To prove the execution of the Will (Ex. P1), the plaintiff-respondent examined two attesting witnesses, namely Dr. Jagbir Singh (PW 1) and Dr. O.P. Lochab (PW 3). In the evidence, it has come that Dr. Jagbir Singh, one of the attesting witnesses, scribed the aforesaid Will, though in the plaint it was not disclosed as to who scribed the Will. The learned trial Court did not accept the testimony of the aforesaid two witnesses and it was held that the Will was forged one. Learned counsel for the appellants submitted that the learned trial Court recorded good reasonings for discarding the testimony of two attesting witnesses, but the learned first appellate Court, without considering those aspects of the matter, has wrongly held that the execution of the Will has been duly proved by the statements of these two witnesses. 11. I have gone through the judgments of the trial Court as well as the first appellate Court. In my opinion, the reasoning recorded by the learned trial Court, while discarding the statements of the aforesaid two witnesses is correct, particularly looking to the original Will which is available on the record which itself goes to show that it is a forged document and was prepared subsequently on a paper on which thumb impression of the testator was already existing. Both the attesting witnesses are Doctors. At the time of execution of the Will, admittedly, they were not giving any treatment to deceased Mauji Ram. It was not their duty to write a Will. One of them, Dr. Jagbir Singh, who scribed the Will, has stated that Mauji Ram was known to him and he asked him to write the Will. Thereupon, on the instructions of Mauji Ram, he scribed the said Will in his favour. The other attesting witness Dr. It was not their duty to write a Will. One of them, Dr. Jagbir Singh, who scribed the Will, has stated that Mauji Ram was known to him and he asked him to write the Will. Thereupon, on the instructions of Mauji Ram, he scribed the said Will in his favour. The other attesting witness Dr. O.P. Lochab has stated that he had attested the Will at the instance of Dr. Jagbir Singh, as he was not known to deceased Mauji Ram. A perusal of the Will goes to show that Mauji Ram had affixed his thumb impression in the middle of the Will and each of the attesting witnesses has put his attestation on the left and right side of the Will. It is very abnormal. Generally, the testator signs the Will on the right corner and the attesting witnesses put their signatures on the left corner. This fact has created doubt in the mind of the Court. On a further close perusal of the Will, this Court found that the flow of writing in the beginning has changed in the last. In the last, the scribe has tried to cover up the paper by reaching to the bottom by writing few words. Both the attesting witnesses having neither put the date below their signatures nor have mentioned the place of scribing/attesting the Will. However, both the witnesses have used their respective stamps showing their designation. It was also admitted by both the witnesses in their statements that at the time of execution of the aforesaid document no body except a child was present. It was also stated by them that after scribing the Will, it was handed over to Mauji Ram. The manner in which the Will in question was executed creates doubt in the mind of the Court about its genuineness. If the statements of these two witnesses are examined, it reveals that these do not prove the valid execution of the Will. Though Dr. Jagbir Singh has admitted that he had scribed the Will, but on the Will he put his signatures not as a scribe but only as an attesting witness. The other attesting witness Dr. O.P. Lochan has stated that he put his signatures on the Will. He does not explain at what point of time he put his signatures as an attesting witness. The other attesting witness Dr. O.P. Lochan has stated that he put his signatures on the Will. He does not explain at what point of time he put his signatures as an attesting witness. I am of the opinion that the finding of the learned trial Court on the issue of execution of the Will is based on valid reasons and the same should not have been set aside by the learned first appellate Court. The reasonings given by the learned first appellate Court in this regard are based on conjectures. The findings to the effect that the Will in question is not surrounded by suspicious circumstances are also based on conjectures. The following are the suspicious circumstances which have never been removed by any cogent evidence by the plaintiff :- i) In the Will it was not mentioned that the deceased Mauji Ram was having two daughters. ii) Though in the plaint, the plaintiff has pleaded that 20 years ago in a family settlement his father Mauji Ram had given him 15 Bighas of land and subsequently the Will was executed in recognition of that fact, but in the Will, no mention has been made regarding the alleged family settlement. iii) The Will was alleged to have been executed on 18-12-1984 and Mauji Ram expired soon thereafter on 9-1-1985. There is no evidence available on the record to prove that at the time of execution of the Will, Mauji Ram was mentally and physically fit to know and understand about the execution of a Will, except the statement of Dr. Jagbir Singh, who was not treating the deceased. iv) The Will was not registered. v) No explanation has been given why the Will was written by a Doctor when no family member of Mauji Ram was present. vi) The Will was not produced initially before the revenue authorities when the mutation was sanctioned in favour of all the legal heirs of deceased Mauji Ram on 22-2-1985. vii) No one from the village of the testator was associated at the time of execution of the Will. 12 It is well settled law that the beneficiary of a Will has to remove all the suspicious circumstances. I am of the opinion that in the present case, the plaintiff has failed to remove the aforesaid suspicious circumstances. vii) No one from the village of the testator was associated at the time of execution of the Will. 12 It is well settled law that the beneficiary of a Will has to remove all the suspicious circumstances. I am of the opinion that in the present case, the plaintiff has failed to remove the aforesaid suspicious circumstances. Therefore, the findings recorded by the learned first appellate Court regarding due execution of the Will as well as the Will being not surrounded by any suspicious circumstance, are hereby reversed being contrary to the evidence available on the record and based on surmises and conjectures. 13. On the second issue, learned counsel for the appellants submitted that the view taken by the learned first appellate Court that whole of the land assumed the character of non-ancestral property is wholly erroneous. From mutation (Ex. P5), it is clear that Mauji Ram inherited some land from his collateral Lijje. It is also settled law that land/property inherited by a person from his collateral cannot be said to be ancestral in the hand of such person. In this regard, the learned first appellate Court has observed as under :- "In the instant case, the land from Lijje did not come by descent to Mauji Ram being collateral. So, the said land was not ancestral in the hands of Mauji Ram. The said non-ancestral portion cannot be separated from the ancestral portion as both these portions are mixed and are inseparable. In this situation, the whole land in the hands of Mauji Ram became non-ancestral. In the case of Mara (supra), it was held that where lands are so mixed up that the ancestral and non-ancestral portions cannot be separated, they must be regarded as non-ancestral unless it is shown which are ancestral and which are not. In the instant case, the defendants have not shown which portion is ancestral and which is not and both these portions cannot be separated and so they must be regarded as non-ancestral. So, finding of learned trial Court on issue No. 6 is also reversed and it is held that the suit land was not ancestral in the hands of Mauji Ram deceased/testator." 14. So, finding of learned trial Court on issue No. 6 is also reversed and it is held that the suit land was not ancestral in the hands of Mauji Ram deceased/testator." 14. But the observations of the learned first appellate Court that the non-ancestral portion of the land inherited by Muji Ram from his collateral Lijje was mixed and put in hotch potch in such a manner that it cannot be separated then the entire portion of the land shall be deemed to be non-ancestral, is wholly erroneous and against the settled proposition of law relating to Hindu Joint Family Property. Para 227(1) of the Mullas Hindu Law (Seventeenth Edition) reads as under : "Property which was originally the separate or self-acquired property of a member (co-parcener) of a joint family may, by operation of the doctrine of blending, become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it. A clear intention to waive his separate rights must be established. It will neither be inferred from the mere fact of his allowing the other members of the family to use it conjointly with himself nor from the fact that the income of the separate property was used to support a son, or from the mere failure of a member to keep separate accounts of his earnings. So also acts of generosity or kindness should not be construed as admissions of legal obligation. Separate property thrown into the common stock is subject to all the incidents of joint family property." 15. In the instant case, there is no evidence on record that Mauji Ram was having any intention to keep the portion of the land which he inherited from his collateral Lijje separate. Actually, the plaintiff did not lead any evidence about the nature of the land except the mutation Ex. P5 vide which some portion of the land was inherited by Mauji Ram. From the excerpt Ex. D1, it is clear that the land in question was ancestral in the hand of Mauji Ram, as has been stated by Ram Chand Patwari (DW 2). In my opinion, the finding recorded by learned first appellate Court that the entire property in the hand of Mauji Ram should be deemed to be non-ancestral is wholly erroneous. D1, it is clear that the land in question was ancestral in the hand of Mauji Ram, as has been stated by Ram Chand Patwari (DW 2). In my opinion, the finding recorded by learned first appellate Court that the entire property in the hand of Mauji Ram should be deemed to be non-ancestral is wholly erroneous. Rather as per law and keeping in view the doctrine of blending the entire property in the hand of Mauji Ram should have been treated as ancestral property. If the land measuring 30 Bighas in the hand of Mauji Ram is ancestral property, then he was legally not entitled to Will away any portion of the same in favour of any of his sons. Therefore, the judgment of the learned first appellate Court is liable to be set aside. 16. In view of the aforesaid discussion, the appeal is allowed and the impugned judgment and decree passed by the first appellate Court are set aside and the judgment and decree passed by the trial Court are restored. 17. No order as to costs.Appeal allowed.