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2004 DIGILAW 628 (PNJ)

Ram Lal v. Mohinder Singh

2004-05-27

AJAY K.MITTAL

body2004
Judgment 1. In this Regular Second Appeal, the appellants have challenged the judgments and decrees of the Courts below dated 15-12-1981 and 5-1-1984 whereby suit of the plaintiffs (appellants herein) was dismissed and the appeal preferred by them before the lower Appellate Court also met with the same fate. 2. The brief facts of the case are that Ram Lal and Sant Ram plaintiffs filed a suit for possession of land measuring 47 kanals; 3 marlas as fully described in the plaint, situated within the revenue estate of village Gill, Tehsil Dasuya, District Hoshiarpur. The plaintiffs claimed that they along with defendant Nos. 3 and 4 are entitled to inherit the estate of Bhola son of Attra who died on 31-10-1977 issueless as he was unmarried. 3. Defendant Nos. 1 and 2 contested the claim of the plaintiffs/appellants and filed written statement wherein they denied the claim of the plaintiffs to inherit the property of deceased Bhola. It was asserted that Bhola had executed a valid Will dated 29-8-1962 in their favour (defendant Nos. 1 and 2) and hence they are rightfully in possession of the property, mutation of which had also been sanctioned in their favour. It was further denied that the plaintiffs are the legal heirs of the deceased Bhola. On the basis of pleadings of the parties, the following issues were framed by the trial Court :- 1. Whether the plaintiffs are the legal heirs of Bhola-deceased ? OPP. 2. Whether Bhola-deceased executed a valid Will dated 29-8-1962 in favour of defendants No. 1 and 2 ? OPD. 3. Relief. 4. The trial Court after appreciating the oral as well as documentary evidence, returned the findings on issue No. 1 in favour of the plaintiffs/appellants. However, on issue No. 2, it was held that the Will dated 29-8-1962 had been validly executed in favour of defendant Nos. 1 and 2. Therefore, the findings on issue No. 2 was returned in favour of defendant Nos. 1 and 2 and consequently, the suit was dismissed. 5. The plaintiffs challenged the judgment and decree before the lower Appellate Court. The lower Appellate Court reversed the findings on issue No. 1 and held that defendant Nos. 1 and 2 being Agnates are preferential heirs of Bhola-deceased vis-a-vis the plaintiffs and defendant Nos. 3 and 4 who are Cognates of Bhola-deceased. However, findings on issue No. 2 were affirmed. The plaintiffs challenged the judgment and decree before the lower Appellate Court. The lower Appellate Court reversed the findings on issue No. 1 and held that defendant Nos. 1 and 2 being Agnates are preferential heirs of Bhola-deceased vis-a-vis the plaintiffs and defendant Nos. 3 and 4 who are Cognates of Bhola-deceased. However, findings on issue No. 2 were affirmed. Consequently, the appeal was dismissed. The plaintiffs have challenged the judgments and decrees passed by both the Courts below in this Regular Second Appeal. 6. I have heard Shri Jagdish Manchanda, learned counsel for the plaintiffs/appellants and Shri J. S. Toor, learned counsel for the respondents and have perused the record. Learned counsel for the appellants submitted that the following substantial questions of law arise in this appeal :- (i) Whether the Will executed by Bhola in favour of defendant Nos. 1 and 2 is a valid Will ? (ii) Whether the Will has been proved as per the provisions of the Evidence Act? (iii) Whether the ancestral property can be Willed out in favour of stranger instead of in favour of the legal heirs ? (iv) Whether the respondents are having preferential right of deceased Bhola than the present appellants ? 7. To determine the question whether the defendant Nos. 1 and 2 are Agnates of Bhola-deceased and are entitled to inherit the property of deceased Bhola instead of the plaintiffs and defendant Nos. 3 and 4 who are his cognates, it would be proper to reproduce the pedigree table and the relevant provisions of the Hindu Succession Act, 1956 (for short, the Act ). The pedigree table is reproduced as under :- 8. It is not disputed that Bant Ram and Hari Dass are sons of Joti and this fact also finds mention in Will Exhibit DW-3/A. As per entries in Jamabandi for the year 1922-23. Joti is shown to be son of Ram Ditta and as per pedigree table Exhibit DA. Ram Ditta is son of Chetu who is real brother of Megha. Both Chetu and Megha are sons of Bonsa. On perusal of the above pedigree table it is thus clear that defendant Nos. 1 and 2 (Bant Ram and Hari Dass) are not strangers but are related to Bhola as his collaterals and being his Agnates are entitled to inherit his property instead of the plaintiffs and defendant Nos. 3 and 4 who are Cognates. On perusal of the above pedigree table it is thus clear that defendant Nos. 1 and 2 (Bant Ram and Hari Dass) are not strangers but are related to Bhola as his collaterals and being his Agnates are entitled to inherit his property instead of the plaintiffs and defendant Nos. 3 and 4 who are Cognates. In this connection, it would be proper to refer to section 3(1) of the Act. The relevant provisions of Section 3(1) of the Act read as under :- "(a) "agnate" - one person is said to be an "agnate" of another if the two are related by blood or adoption wholly through males; (c) "cognate" - one person is said to be a "cognate" of another if the two are related by blood or adoption but not wholly through males; (f) heir means any person, male or female, who is entitled to succeed to the property of an intestate under this Act." 9. Relevant provisions of Section 8 of the Act read as under :- "8. General rules of succession in the case of males : The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :- (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased." 10. Thus, from a perusal of the pedigree table and the relevant provisions of the Act, it is clear that defendant Nos. 1 and 2 who are agnates of Bhola-deceased as they are related to him wholly through males whereas in case of the plaintiffs and defendant Nos. 3 and 4, they are cognates of deceased Bhola, as they are related to him not wholly through males and therefore, being cognates have no right to inherit under the Act. Thus, there is no infirmity in the judgment of the lower Appellate Court returning the findings on issue No. 1 in favour of defendant Nos. 1 and 2. 11. 3 and 4, they are cognates of deceased Bhola, as they are related to him not wholly through males and therefore, being cognates have no right to inherit under the Act. Thus, there is no infirmity in the judgment of the lower Appellate Court returning the findings on issue No. 1 in favour of defendant Nos. 1 and 2. 11. As regards the validity of the Will, learned counsel for the appellants contends that execution of the Will Exhibit DW-3/A has not been duly proved in accordance with the provisions of the Indian Evidence Act, 1872 (for short the Evidence Act ) inasmuch as none of the marginal witnesses viz. Durga Dass and Rolu Ram stepped into the witness box to prove execution of the Will. 12. I have given my careful consideration to the contention raised by the learned counsel. Both the Courts below have found as a fact that Durga Dass, one of the attesting witnesses though alive was not in a position to move and speak well and therefore, though various attempts were made to get his statement recorded in the Court but because of his disease, the same could not be recorded. Moreover, for the same reason, he could not be examined through Commission as he was not in a position to speak well. In this regard, statement made by Mohinder Singh defendant No. 1 recorded on July 22, 1981 is worth mention wherein he stated that Durga Dass, an attesting witness of the alleged will, is not in a position to move about and that he can also not speak well. As regards Rolu Ram, it came into evidence that he had mixed up with the plaintiffs inasmuch he had deposed in favour of the plaintiffs before the Assistant Collector. Ist Grade, Dasuya and disputed the execution of the Will. A certified copy of the statement made by him before the Assistant Collector Ist Grade, Dasuya is Exhibit D-2. Therefore, the propounders of the will in those circumstances, did not produce Rolu Ram. Hence, in these circumstances, the marginal witnesses of the Will though alive were not produced and the defendant Nos. 1 and 2 were left with the testimony of scribe of the will, Karam Singh, who appeared as D.W.3. 13. In his statement, Karam Singh D.W. 3 specifically stated that deceased Bhola was personally known to him. Hence, in these circumstances, the marginal witnesses of the Will though alive were not produced and the defendant Nos. 1 and 2 were left with the testimony of scribe of the will, Karam Singh, who appeared as D.W.3. 13. In his statement, Karam Singh D.W. 3 specifically stated that deceased Bhola was personally known to him. Therefore, he has assumed the role of attesting witness and would not remain merely a scribe to the Will. Karam Singh D.W. 3 further deposed that he had scribed the Will under the instructions of Bhola and in favour of defendant Nos. 1 and 2. He had read over the contents of the Will to deceased Bhola before he thumb-marked the Will in token of its correctness and in the presence of the attesting witnesses who also signed in the presence of Bhola. Section 71 of the Evidence Act provides that if the attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. Thus, it was correctly held by both the Courts below on the basis of the evidence produced before them that the execution of the Will is duly proved and that the deceased Bhola had executed a valid Will Exhibit DW-3/A bequeathing his property in favour of defendant Nos. 1 and 2. 14. The next point raised by learned counsel for the appellants is that the property in question was the ancestral property in the hands of Bhola-deceased and therefore, the same could not be validly bequeathed by him in favour of defendant Nos. 1 and 2. In this connection, it may be noticed here that Bhola was unmarried and issueless at the time of death. Therefore, in view of Mulla s Hindu Law, para 223, the property though ancestral in character had acquired the character of absolute property in the hands of Bhola-deceased and he was thus competent to deal with the same in whatever manner he liked. He was, therefore, fully competent to execute the Will and bequeath the property in favour of defendant Nos. 1 and 2 who were not strangers, but related to him being his collaterals an Agnates. Otherwise also, defendant Nos. 1 and 2 being agnates of deceased Bhola have precedence over the plaintiffs and defendant Nos. 3 and 4 who were cognates, to inherit the property of deceased Bhola under the provisions of the Act. 1 and 2 who were not strangers, but related to him being his collaterals an Agnates. Otherwise also, defendant Nos. 1 and 2 being agnates of deceased Bhola have precedence over the plaintiffs and defendant Nos. 3 and 4 who were cognates, to inherit the property of deceased Bhola under the provisions of the Act. The substantial questions as sought to be raised in the appeal are accordingly decided against the plaintiffs/appellants. 15. No other point has been raised. 16. In view of the above discussion, finding no merit in this Regular Second Appeal, the same is accordingly dismissed. The parties are left to bear their own costs.