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2005 DIGILAW 895 (PNJ)

Tek Chand v. Chandro

2005-08-24

JASBIR SINGH

body2005
Judgment Jasbir Singh, J. 1. Smt. Chandro, predecessor-in-interest of respondent Nos. 1(i) to (vi) (hereinafter referred to as the plaintiff) filed a suit for possession of the property in dispute, details of which were given in her plaint, against the appellants and respondent No. 4 (hereinafter referred to as the defendants). Admittedly, the property in dispute was ownership of Smt. Kishni widow of Agdi. It was case of the plaintiff that, she being daughter of Smt. Kishni, who died on 1.7.1972, was entitled to inherit the property/lnd, left by her. She has further averred that the mutation, entered in the name of defendants, on the basis of Will, allegedly executed by the deceased Smt. Kishni, be declared null and void. She prayed that she be declared sole owner of the property in dispute or in the alternative, she claimed that she be declared owner to the extent of l/3rd share thereof, along with defendant Nos.4 and 5 namely Jage Ram and Sudha. It was her positive case that, Smt. Kishsni had never executed any Will and the alleged Will, put up by the defendants, may be result of a fraud committed by them upon Smt. Kishni. She prayed that the Will in question be declared in-operative against her rights. 2. In their written statement, defendants had admitted that Smt. Kishni was owner of the property in dispute. However, they alleged that she was not the widow of Agdi, as alleged by the plaintiff. It was further stated by them that the plaintiff Smt. Chandro was neither daughter of Smt. Kishni nor of Agdi, as alleged. They further averred that even defendant Nos. 4 and 5 were not the children of Smt. Kishni. It was stated by them that Smt. Kishni, of her own free will, had executed the Will in their favour and on account of that, they had become owner of the property in dispute. 3. Trial Court, on appraisal of pleadings of both the parties, had framed ate following issues:- 1. Whether the plaintiff Chandro is the daughter of the deceased Kishni and if so to what effect? OPP 2. Whether the parties are governed by custom in matter of alienation and if so what that custom? OPP 3. Whether the property in dispute was ancestral in hands of Smt. Kishni qua the plaintiff? OPP 4. Whether the plaintiff Chandro is the daughter of the deceased Kishni and if so to what effect? OPP 2. Whether the parties are governed by custom in matter of alienation and if so what that custom? OPP 3. Whether the property in dispute was ancestral in hands of Smt. Kishni qua the plaintiff? OPP 4. Whether Smt. Kishni executed a valid Will in favour of the defendants and, if so, to what effect? OPD 5. Whether the suit is not properly valued for the purpose of Court fees? OPD 6. Whether the plaintiff has no locus stand to file the suit? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the plaintiff is estopped by her act and conduct to file the present suit? OPD 9. Whether the defendants are entitled to special costs under Section 35-A C.P.C.? OPD 10. Relief. 4. In the first instance, suit was decreed. However, in appeal, on a technical ground, judgment was set aside and matter was remanded to the trial Court for fresh decision. 5. After remand, following additional issues were framed by the Trial Court:- Additional issue No. 1 Whether the suit is bad for non-joinder of necessary parties? OPD Additional issue No. 2 Whether the defendant Nos.4 and 5 are the son and daughter of Kishni deceased, if so, to what effect? OPD 6. Thereafter, both the parties led fresh evidence and on appraisal thereof, trial Court vide judgment dated 20.4.1981, decreed suit of the plaintiff and she was held entitled to 1/5th share in the property in dispute. Defendants Tek Chand, Lakhi Ram and Ramji Lal went in appeal, which was dismissed vide judgment and decree dated 21.12.1981. The defendants came to this Court and vide judgment dated 27.5.1982, their appeal was accepted. The judgment and decree passed by the appellant Court below were set aside and matter was remitted to the appellate Court to decide it afresh, especially issue Nos. 1 to 4. Thereafter, matter was taken up by the appellate Court below and vide judgment and decree dated 22.9.1982, appeal was again dismissed. Hence this Regular Second Appeal. 7. My. Rameshwar Malik, counsel for the appellants has vehemently contended that Smt. Kishni performed marriage with Agdi, as has been alleged by the plaintiff. This argument deserves to be rejected. 1 to 4. Thereafter, matter was taken up by the appellate Court below and vide judgment and decree dated 22.9.1982, appeal was again dismissed. Hence this Regular Second Appeal. 7. My. Rameshwar Malik, counsel for the appellants has vehemently contended that Smt. Kishni performed marriage with Agdi, as has been alleged by the plaintiff. This argument deserves to be rejected. In the Will, on the basis of which, the defendants have put up their claim, Smt. Kishni was shown as widow of Agdi. It was not disputed, at the time of arguments, that the property in dispute come to Smt. Kishni from Agdi, after his death. Even defendant No. 3 has categorically admitted in his statement, in Court, that Smt. Kishni had performed marriage with Agdi. It was further admitted by him that Smt. Kishni was first marriage to Kishan Lal and had given birth to Jage Ram, from his loins. As such, in view of evidence on record, it can be safely said that Smt. Kishni was widow of Agdi. 8. Mr. Malik has further contended that the plaintiff has failed to prove on record that she was daughter of Smt. Kishni and Agdi, as alleged by her as she has failed to prove that alleged birth certificate (Ex.PX) relates to her. It has also been contended that their exist overwhelming evidence on record to show that the plaintiff was not the daughter of Smt. Kishni. 9. This Court of the view that the arguments raised are devoid of any force whatsoever and are liable to be rejected. 10. In birth certificate (Ex.PX) it has been mentioned that a female child was born in the house of Agdi, on 14.6.1935. When entry, referred to above, is read along with oral evidence on record, it clearly establishes that the certificate (Ex.PX) relates to the plaintiff. Further, there exist no evidence on record to show, as to if the plaintiff was not the daughter of Agdi, then to whom certificate (Ex.PX) relates, who was the child of Agdi born on 14.6.1935 and what has happened to that child? In their written statement the defendants had denied that Jage Ram was son of Smt. Kishni. However, defendant No. 3, when appeared in the witness-box had admitted that Jage Ram was son of Smt. Kishni. Jage Ram had put up appearance in Court as PW-2. In their written statement the defendants had denied that Jage Ram was son of Smt. Kishni. However, defendant No. 3, when appeared in the witness-box had admitted that Jage Ram was son of Smt. Kishni. Jage Ram had put up appearance in Court as PW-2. He had specifically stated that the plaintiff was step sister. Once Jage Ram, whose parentage is not in dispute, had admitted that the plaintiff was daughter of Smt. Kishni, this Court feels that any argument raised to the contrary, could not be entertained. Jage Ram, who was legally entitled to inherit the property of Smt. Kishni had deposed against his own interest, in Court, in favour of the plaintiff (though ultimately), Courts below, held him entitled to inherit part of the property in dispute), as such his statement was rightly relied upon by the Courts below, 11. Evidence of Jugti Ram (PW-1) also corroborates the fact that the plaintiff was daughter of Smt. Kishni. Both the Courts below have found that the evidence led by the defendants, to the contrary, was not trustworthy. Witnesses, who had appeared on behalf of the defendants, had deposed that Smt. Kishni was widow of Kishan Lal and not that of Agdi. This Court is of the view that the witnesses were not deposing truth to that extent. Once in the Will, reliance on which has been placed by the defendants, it was mentioned that Smt. Kishni was widow of Agdi, no evidence to the contrary, could have been entertained. The Courts below have rightly discarded the evidence of the defendants witnesses, in that regard. This Court feels that it was rightly been held by the Courts below that the plaintiff Smt. Chandro was daughter of Smt. Kishni, the deceased. 12. Both the Courts below have also rightly disbelieved the Will, being surrounded by suspicious circumstances. Even, as per the case of the defendants, Jage Ram was son of Smt. Kishni. What to talk of anybody else, in the disputed Will, even his name was not mentioned. No reasons has been given as to why legal heirs are being deprived of the property and why the same was being given to distant relations, by Smt. Kishni ? It has also been noticed by the Courts below that the original Will was not brought on record. No reasons has been given as to why legal heirs are being deprived of the property and why the same was being given to distant relations, by Smt. Kishni ? It has also been noticed by the Courts below that the original Will was not brought on record. It has rightly been held by the Courts below that documents Ex.D-1 and Ex.D-2 did not prove loss of the original Will. Copy of disputed Will was only marked as "A", on record. Even one of the attesting witness Dhup Singh, had deposed that the disputed Will was not scribed in his presence. As per the facts of the case, Smt. Kishni died 7 months after execution of the alleged Will and during that period, no attempt was made by the defendants to get the same registered. It has also come on record that the Will was not scribed through a regular deed writer, rather it was scribed in the house of the defendants and they had taken an active part in execution of alleged Will. There is no evidence, worth the name, on record, to show that relations of Smt. Kishni were strained with her own children, due to which, she had deprived them to inherit her property and preferred her distant relations. The Court below were right in saying that, the plaintiff being a co-sharer, was competent to file the suit for possession. No other legal point has been raised which may necessitated any interference by this Court in pure findings of facts, recorded by the Courts below Dismissed.