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2005 DIGILAW 90 (PNJ)

Baru Ram v. Khub Ram

2005-01-19

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the First Appellate Court whereby the suit for declaration to the effect that the plaintiffs are owner in possession in equal share of the house, detailed in the head note, was dismissed in appeal by the First Appellate Court. 2. It is the case of the plaintiffs that their father Duni Ram was owner of the property in dispute. He died on 22.11.1968 but during his life time in sound disposing mind, he executed the registered will dated 3.4.1964. In the said Will, the testator has given the reasons to exclude Khub Ram another son of Defendant No. 1 from inheritance. Thus, on the basis of the said fact, the plaintiffs claimed declaration and a decree for permanent injunction restraining the defendants from forcibly dispossessing the plaintiffs. 3. In support of their plea of will, the plaintiffs, have examined PW4 Raghbir Singh and PW5 Shri K.L. Chaudhary, Advocate attesting witness of Will as well as produced PW7 Raj Kumar son of Ram Partap, the deceased petition writer. On the basis of such evidence, the learned trial Court found that the will dated 3.4.1994 was executed by the deceased in sound disposing mind and that such will is not surrounded by suspicious circumstances and consequently granted decree. 4. In appeal, the First Appellate Court reversed the finding in respect of due execution of the Will, inter alia, on the ground that Duni Ram was benami owner of the property as money of the house was provided by his sons and, therefore, it is not open to the parties to allege that it was self-acquired property of Duni Ram. It has been found that since the property was owned by all the three brothers, therefore, Duni Ram was not competent to make WILL in respect of said property. Consequently, the suit was dismissed while accepting the appeal. 5. Before this Court, the learned counsel has vehemently argued that the learned First Appellate Court has misread the evidence and, thus, the finding recorded by the First Appellate Court are not sustainable in law. The following substantial question of law arise for consideration:- "1. Whether the finding recorded by the First Appellate Court is based upon misreading of evidence and, thus, not sustainable in law? 2. The following substantial question of law arise for consideration:- "1. Whether the finding recorded by the First Appellate Court is based upon misreading of evidence and, thus, not sustainable in law? 2. Whether the suit on the basis of inheritance can be said to be beyond the period of Limitation?" 6. Learned counsel for the appellants has referred to WILL Ex.PA to contend that the deceased has explained that he has another son Khub Ram and is living separately for the last 25 years. Thereafter, the reference is made to plaintiff Ram Chander and Baru Ram and it is mentioned that they constructed a house and he is benami owner. Thus, he has bequeathed his property in favour of Ram Chander and Baru Ram in view of the services rendered. 7. It is apparent that the First Appellate Court has not disputed the finding recorded by the learned trial Court that the WILL is proved to be executed. It was taken into consideration the only surrounded circumstances which led reversal of the judgment and decree passed by the learned trial Court. The First Appellate Court has found that the money for the purchase of house was spent by his all the three sons. The said finding is factually incorrect. As per the Will, it was the plaintiffs who have provided funds. It is the plaintiffs who have sought a declaration regarding ownership of the said house. The defendants have not led any evidence to prove that property in dispute was constructed with the funds provided by the parties except his bald statement. The First Appellate Court has not relied upon any other evidence to return a finding that the property in dispute was owned by all the three brothers. 8. The First Appellate Court has also returned a finding that the plaintiffs as well as the defendants were recorded as owners in the jamabandi for the year 1977-78. Since the suit has been filed after lapse of 13 years of sanction of mutation, therefore, it is beyond the period of limitation. 8. The First Appellate Court has also returned a finding that the plaintiffs as well as the defendants were recorded as owners in the jamabandi for the year 1977-78. Since the suit has been filed after lapse of 13 years of sanction of mutation, therefore, it is beyond the period of limitation. Such finding recorded by the First Appellate Court is patently illegally and run contrary in view of the Division Bench judgment of this Court reported as Ibrahim alias Dharam Vir v. Smt. Sharifan alias Shanti, 1979 P.L.J. 469 wherein it has been held that cause of action to claim declaration arises not on the date of sanction of mutation but on the date when there is cloud over the title of the suitor. 9. In view there of the finding recorded by the First Appellate Court are not sustainable in law. Consequently, while allowing appeal, the suit of the plaintiff is decreed with no order as to costs.