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2012 DIGILAW 33 (HP)

Rattan Lal v. Roop Devi

2012-01-11

DEV DARSHAN SUD

body2012
JUDGMENT Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment and decree of the learned Appellate Court affirming the judgment and decree of the learned trial Court dismissing the suit instituted by the plaintiffs praying for decree of declaration that the plaintiff is owner in possession of 2/3rd share of the land comprised in Khewat/Khatauni No. 153/173, Khasra No. 526 and 533 measuring 9-05 bighas and that defendant No. 1 Shri Chuha is only entitled to 1/3rd share of the land. The plaintiff further sought a declaration that he is owner in possession of 1/2 share of land comprised in Khewat/Khatauni No. 154/174, Khasra No. 531 measuring 0-6 bighas out of 3/4 share which is jointly owned and possessed by the plaintiff and the first defendant Shri Chuha has only 1/4th share while the remaining 1/4th share is of Smt. Santi, defendant No.2 which is under the non-occupancy tenancy of defendant No.1. The plaintiff seeks decree of declaration that he along with defendant No. 2 is entitled to the equal share in the tenancy. A decree of permanent prohibitory injunction was also prayed for. 2.The plaintiff pleaded that he and defendant No. 1 are the sons and grandsons of late Shri Malhar.The pedigree table is as under: Malhar | | | GokulBudhu (died intestate) Bali Ram (died intestate) || Chuha(son) Malaru(widow) (died intestate) 3.It was pleaded that Malhar had three sons namely Gokul, Budhu and Beli Ram. Gokul died and is survived by one son Chuha, defendant No.1. Budhu also died and his property devolved on his widow Malaru, who also died intestate. After the death of Mahlar, his property devolved in equal shares of Gokul, Budhu and Beli Ram. Gokul and Budhu also died intestate and their property is devolved on Chuha and Malaru. Malaru died intestate in January, 1974 and her share in the suit land i.e. 1/3rd devolved upon the plaintiff in accordance with the provisions of the Hindu Succession Act, 1956 as the plaintiff was the sole surviving legal heir of deceased Malaru. 4.Plaintiff Shri Beli Ram died during the pendency of the suit and the appellants are his legal heirs. Malaru died intestate in January, 1974 and her share in the suit land i.e. 1/3rd devolved upon the plaintiff in accordance with the provisions of the Hindu Succession Act, 1956 as the plaintiff was the sole surviving legal heir of deceased Malaru. 4.Plaintiff Shri Beli Ram died during the pendency of the suit and the appellants are his legal heirs. On the settled issues the learned trial Court dismissed the suit of the plaintiff holding that there is no evidence on record that Malaru had equal proprietary rights over the suit land before her death and therefore, the plaintiff had no right to inherit her share under Section 8 and 15 of the Hindu Succession Act, 1956. This finding was rendered on three settled crucial issues. Issues No. 4 to 9 were abandoned by the defendants. I note from the judgment that at the time when it was delivered, nobody’s presence was recorded in the judgment. 5.In appeal, these findings have been affirmed by the learned District Judge, Bilaspur who holds that the land is to be inherited by Shri Chuha and Shri Beli Ram and since Smt. Malaru has not acquired ownership rights as she died on 3.2.1974 and the H.P. Tenancy and Land Reforms Act came into operation on 29.7.1975, mutations Ext.P8 and Ext.P9 attested by the revenue agency has no effect on the rights of the plaintiff and defendants. 6. When this appeal was taken up for hearing, the death certificate of Smt. Malaru was placed on record of the case which records her date of death as 3.2.1974. This certificate has been issued under Sections 12 and 17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Himachal Pradesh Registration of Births and Death Rules, 2003. The authenticity of this death certificate is not disputed by both the parties and is taken on record of the case as Ext.A-1. The appeal was admitted on 20th August, 1999 on four substantial questions of law: 1. When admittedly Shri Buddhu had no male child, was not Smt. Malaru, widow of Shir Buddhu, entitled to succeed to the rights of tenancy in the land held by Shri Buddhu as tenant, whether the mutation attested in favour of Smt. Malaru as tenant could be held to be illegal? 2. When admittedly Shri Buddhu had no male child, was not Smt. Malaru, widow of Shir Buddhu, entitled to succeed to the rights of tenancy in the land held by Shri Buddhu as tenant, whether the mutation attested in favour of Smt. Malaru as tenant could be held to be illegal? 2. Whether after the death of Smt. Malaru, widow of Shri Buddhu, the right of tenancy would devolve upon brother of Shri Buddhu only, on the brother and nephew simultaneously as per the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, if Smt. Malaru is held to have died having right of non-occupancy tenant over the suit land? 3. Whether the findings that Smt. Malaru who died on 3rd of February, 1974 died prior to the enforcement of the Land Reforms Act, 1972 are wrong? In view of the fact that the Act was passed in the Himachal Pradesh Assembly on 22nd December, 1972 which received the assent of the President of India on 2nd February, 1974? 4. If Smt. Malaru died after the enforcement of Tenancy and Land Reforms Act, 1972 was not her status at the time of her death that of owner on account of automatic conferment of proprietory rights? was not only Shri Bali Ram being brother of Shri Baddhu, husband of Smt. Malaru, exclusively entitled to succeed to such rights which Smt. Malaru had at the time of her death in the land in dispute? With the filing of the death certificate, an application was instituted under Order 42 Rule 2 read with Sections 100 and 151 of the Code of Civil Procedure seeking to raise an additional question of law which is as under:- 5. Whether after the death of Smt. Malaru on 3rd February, 1974, appellants being preferential heirs being collaterals of the husband of deceased tenant were exclusively entitled to succeed to the tenancy rights in exclusion of defendant, as per the provisions of Section 67 of H.P. Abolition of Big Landed Estates and Land Reforms Act, 1954? 7 Let this application be numbered. It is allowed. 8.Before adverting to the submissions made by learned counsel appearing for the parties, it would be appropriate to consider the findings of the learned two Courts below. 7 Let this application be numbered. It is allowed. 8.Before adverting to the submissions made by learned counsel appearing for the parties, it would be appropriate to consider the findings of the learned two Courts below. 9.The learned trial Court settled ten issues and holds that Smt. Malaru did not acquire any proprietary rights on the suit land before her death and therefore, the plaintiff has no right to inherit the share of the deceased under Sections 8 and 15 of the Hindu Succession Act. 10.Adverting to this reasoning, Section 8 is not at all attracted to the facts of the case for the reason that it deals with the succession of a Hindu male dying intestate. Section 15 covers the rights of female Hindus. It is not necessary that the rights should and ought to have been inherited by the deceased. The learned trial Court should and ought to be aware about the fact that Section 8 opens with the words “the property of a male Hindu dying intestate shall devolve according to the provisions of this chapter.” Surely Malaru was not a male. It is Section 15 which governs the succession to the estate of a female Hindu dying intestate. 11.Adverting to the judgment of the learned Appellate Court, I find that it has also committed the same mistake by only quoting the provisions of the Punjab Tenancy Act without deciding the manner in which the provisions are applicable. What I also find from the judgment is that if the learned trial Court errs in applying the provisions of law (though there is no excuse as to why it should and ought to have referred to the provision applicable to the males), it was surely the mandatory duty of the appellate Court to have gone into this fact. Both the Courts have been remiss. I need not repeat the precedent which requires the first Appellate Court to decide all questions of fact and law. 12. In M/s Hindustan Times Ltd., vs. Union of India and others, AIR 1998 SC 688 the law has been aptly summed up by the Supreme Court holding: “8. In an article ‘On writing Judgments’, Justice Michael Kirby of Australia (1990) Vol. 64 Australian Law Journal . 691) has approached the problem from the point of view of the litigant, the legal profession, the subordinate Courts/Tribunals, the brother Judges and the Judges’ own conscience. In an article ‘On writing Judgments’, Justice Michael Kirby of Australia (1990) Vol. 64 Australian Law Journal . 691) has approached the problem from the point of view of the litigant, the legal profession, the subordinate Courts/Tribunals, the brother Judges and the Judges’ own conscience. To the litigant, the duty of the Judge is to uphold his own integrity and let the losing party knew why he lost the case. The legal profession is entitled to have it demonstrated that the Judge had the correct principles in mind, had properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and for the reassurance of the quality of the judiciary which is still the centre-piece of our administration of justice. It does not take long for the profession to come to know, including through the written pages of published judgments, the lazy Judge, the Judge prone to errors of fact etc. The reputational considerations are important for the exercise of appellate rights, for the Judges’ own self-discipline, for attempts at improvement and the maintenance of the integrity and quality of our judiciary. From the point of view of other Judges, the benefit that accrues to the lower hierarchy of Judges and Tribunals is of utmost importance. Justice Asprey of Australia has even said in Petit v. Dankley (1971)1 NSWLR 376 (CA) that the failure of a Court to give reasons is an encroachment upon the right of appeal given to a litigant. In our view, the satisfaction which a reasoned judgment gives to the losing party or his lawyer is the test of a good judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher Court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal.” (emphasis supplied) (at p. 691) 13.I also note that in State of Tamil Nadu vs. S. Kumaraswami and others AIR 1977 SC 2026 the Supreme Court holds that the judgment of the Appellate Court must manifest that the learned Appellate Court has applied its judicial mind to the evidence as a whole. It further holds:- “4. It further holds:- “4. The finding of the Subordinate Jude on the two matters was brushed aside by the High Court without any reason, without any appreciation of documents and without any appreciation of contentions of the parties. The High Court gave a perfunctory judgment. The High Court failed to exercise the duties as an appellate court. It is unfortunate that the High Court did so. 5. The only way to do justice in the matter is to remand it to the High Court. The High Court will hear the matter. The Bench which heard this matter earlier will not hear it on remand. We are sorry to make this observation but it is because of the manner in which the Division Bench of the High Court pronounced judgment in this matter.” (at p. 2026) 14.The learned Appellate Court, Court of first appeal, is duty bound to decide all questions of fact and law (See: United India Insurance Co. Ltd. vs. Kanwal Nain Sachdeva and others (1999)9 SCC 193 , State of Rajasthan vs. Harphool Singh (dead) through his LRs (2000)5 SCC 652 and Madhukar and others vs. Sangram and others (2001)4 SCC 756 .) 15.It is in these circumstances that I hold that the case requires to be remanded to the learned Appellate Court for decision afresh in accordance with law. I am not pronouncing on the applicability of the provisions of one Act or the other. How the succession has to be governed is a fact which has to be determined by the material on record and not merely by brushing it under the carpet. It pains me to note that serious questions of law, which have been raised, have been brushed aside by two Courts below. The trial Court not caring for the provisions which applied; the learned appellate Court even acted a step further and only quoted the provision of law without applying its mind. Parties to appear before the learned District Judge, Bilaspur on 6th March, 2013. A direction is issued to the learned District Judge, Bilaspur to dispose of the case as expeditiously as possible and not later than 31st July, 2013. I have not pronounced on the merits of the case and the submissions made by the parties herein save and except that date of death of Malaru is accepted by both the parties.