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2012 DIGILAW 828 (RAJ)

Vijay Singh v. Indra Singh

2012-04-05

KAILASH CHANDRA JOSHI

body2012
Judgment : This civil second appeal has been preferred by appellant-plaintiffs against the judgment and decree dated 25.08.2011 passed by learned Additional District Judge (Fast Track) No.3, Metropolitan City Jodhpur in Civil First Appeal No.47/2011 (149/2006), whereby the learned first appellate court dismissed the appeal filed by the appellant-plaintiffs and affirmed the judgment and decree dated 06.10.2006 passed by learned Civil Judge (Junior Division), Jodhpur in Civil Original Suit No.12/2002, whereby the learned trial court dismissed the suit filed by the appellant-plaintiffs for declaration and permanent injunction. The brief facts of the case are that appellant- plaintiffs filed a suit for declaration and permanent injunction against the respondent-defendants. It was averred in the plaint that late Dhokal Singh and late Jawahar Kanwar were grandfather and grandmother of the plaintiff No.1 and fatherin-law and mother-in-law of plaintiff No.2. After the death of Dhokal Singh, late Jawahar Kanwar adopted late Nain Singh, who was husband of the plaintiff No.2. Said Nain Singh had adopted plaintiff No.1 and adoption deed was also executed in accordance with law, as such the relation of late Smt. Jawahar Kanwar and the plaintiff No.1 established as grandson and grandmother. After the death of Nain Singh on 17.06.1986, plaintiffs and Smt. Jawahar Kanwar became legal heirs of Nain Singh and after the death of Jawahar Kanwar on 13.10.2001, the plaintiffs became the legal heirs of the late Smt. Jawahar Kanwar, therefore, the plaintiff No.1 submitted an application on 17.11.2001 alongwith adoption deed for entering their names in the revenue record of the agricultural land and mutation in their name. The defendant No.1 also made an application for mutation of the agricultural land in question in his name on the basis of the will and when this fact came to the knowledge of the plaintiff No.1, he made objection and filed an application before the District Collector, Jodhpur stating the factual aspects. Thereafter the plaintiffs obtained the alleged will and filed the civil suit. The respondent-defendant No.1 filed the written statement by admitting some factual aspects and mentioned some new facts. It was averred that late Smt. Jawahar Kanwar had two legal heirs, namely, Nain Singh and Ram Kanwar and after her death, the names of Nain Singh and Ram Kanwar were entered in revenue record regarding the agricultural land. It was further averred that the defendant has no knowledge about adoption of the plaintiff No.1 by Nain Singh. It was averred that late Smt. Jawahar Kanwar had two legal heirs, namely, Nain Singh and Ram Kanwar and after her death, the names of Nain Singh and Ram Kanwar were entered in revenue record regarding the agricultural land. It was further averred that the defendant has no knowledge about adoption of the plaintiff No.1 by Nain Singh. It was further averred that late Nain Singh had also entered into an agreement dated 10.08.1975, whereby the partition of the property of late Dhokal Singh was made. It was further averred that late Smt. Jawahar Kanwar in her lifetime had executed a registered will dated 14.07.1980 in favour of defendant Indra Singh regarding her share in the property, as such the plaintiffs have no right in the property of late Smt. Jawahar Kanwar. It was further averred that the plaintiffs were having the knowledge about the will from the time the same was executed. It was further averred that the defendant No.1 is in possession of the disputed land since 01.12.2001 and after the death of late Smt. Jawahar Kanwar, according to her will, the defendant No.1 is her only legal heir. Hence, it was prayed that the suit may be dismissed. On the basis of the pleadings of the parties, the learned trial court framed as many as 8 issues and recorded the oral as well as documentary evidence of the parties. The plaintiffs examined P.W.1 Vijay Singh, P.W.2 Nathu Singh, P.W.3 Mohan Kanwar, P.W.4 Devi Singh and the defendant No.1 examined D.W.1 Indra Singh, D.W.2 Malam Singh, D.W.3 Gulab Khan, D.W.4 Hussain Khan and D.W.5 Ummaid Mertiya. After hearing both the parties, the learned trial court vide judgment and decree dated 06.10.2006 dismissed the suit. Being aggrieved by the judgment and decree passed by the learned trial court, the appellant-plaintiffs preferred an appeal before the learned lower appellate court. The said appeal was also dismissed vide the judgment and decree dated 25.08.2011. Being aggrieved and dissatisfied by the judgments and decrees passed by the courts below, the appellantplaintiffs have preferred this civil second appeal. The learned counsel for the appellant-plaintiffs contended that the learned courts below have committed grave error of law as well as fact in dismissing the suit and the appeal. Being aggrieved and dissatisfied by the judgments and decrees passed by the courts below, the appellantplaintiffs have preferred this civil second appeal. The learned counsel for the appellant-plaintiffs contended that the learned courts below have committed grave error of law as well as fact in dismissing the suit and the appeal. It is contended that the appellant-plaintiffs have proved all the issues by adducing cogent and reliable evidence, but the learned courts below have not discussed the documents produced by the plaintiffs except the adoption deed Ex.1 dated 31.05.1975 and simply on the basis of written statement of the defendant No.1 disbelieved the evidence of the appellant-plaintiffs and held that they have not come with clean hands, which is totally against the record and the evidence. It is further contended that so far as issue No.2 is concerned, from the cross-examination of D.W.2 Malam Singh, who is father of the defendant No.1, it is clear that late Smt. Jawahar Kanwar had no knowledge about the disputed will Ex.A.2 during her lifetime and further there are contradictory statements regarding the will Ex.A.2. It is further contended that the learned courts below have not properly considered the documents available on record. It is contended that there are two wills Ex.A.2 which is said to be executed by late Smt. Jawahar Kanwar and Ex.3 which is said to be executed by Gunesh Singh in favour of the defendant No.1 and from a bare perusal of both these wills it comes out that the stamps were purchased on 09.07.1980 and both were prepared prior to the date of its execution. It is contended that the land mentioned in the will Ex.A.2 was sold by Nain Singh in the year 1983 by sale deed, but the same was not opposed by Smt. Jawahar Kanwar, which clearly shows that she had no knowledge about the execution of the disputed will, but the learned courts below without considering this relevant aspect of the matter, held the disputed will to be genuine and therefore, the finding on the issue No.2 are perverse and against the record. The learned counsel for the appellant-plaintiffs further contended that defendant Indra Singh wrote a Teharir Ex.A.3 dated 29.03.1983, in which the fact regarding the disputed will has been mentioned and the said Teharir was written only for the purpose of bringing into knowledge of Smt. Jawahar Kanwar the fact regarding the disputed will Ex.A.2, thus, it is clearly established that she was not in knowledge of the will Ex.A.2. The learned counsel for the appellant-plaintiffs further contended that the learned courts below have committed illegality and perversity in deciding the issue No.3 against the appellant-plaintiffs. It is contended that by cogent evidence it has been proved that the property mentioned in the disputed will came in the share of Smt. Jawahar Kanwar by inheritance and the same is property of Hindu Undivided Family property and even Smt. Ram Kanwar, the mother of the defendant No.1, filed a suit for partition before the Court of S.D.O., Jodhpur claiming share in Hindu Undivided Family property, as such the appellant-plaintiffs being the legal heirs of late Smt. Jawahar Kanwar are entitled for the property. It is contended that the alleged will said to be executed in respect of the ancestral property of Hindu Undivided Family property could not be executed by late Smt. Jawahar Kanwar because the property in question was not acquired by her. The learned counsel for the appellant-plaintiffs has proposed the following substantial questions of law in the memo of appeal : 1. Whether on the facts and in the circumstances of the case, learned Courts have misread the evidence while passing the impugned judgments and decrees ? 2. Whether on the facts and circumstances of the case the alleged will dated 14.07.1980 can be executed in respect of the undivided Hindu property which came in the share of late Smt. Jawahar Kanwar by inheritance and what is its effect ? 3. Whether on the facts and in the circumstances of the case the disputed will Ex.A.2 will give any right to the defendant No.1 for the property which came in the share of late Smt. Jawahar Kanwar by inheritance ? 4. Whether on the facts and in the circumstances of the case late Smt. Jawahar Kanwar was having any knowledge for the execution of the will Ex.A.2 in favour of the respondent-defendant No.2 and what is its effect ? 5. 4. Whether on the facts and in the circumstances of the case late Smt. Jawahar Kanwar was having any knowledge for the execution of the will Ex.A.2 in favour of the respondent-defendant No.2 and what is its effect ? 5. Whether on the facts and in the circumstances of the case the property in question came in share of appellant-plaintiffs under the provisions of Hindu Succession Act being the adopted son of late Smt. Jawahar Kanwar ? 6. Whether on the facts and in the circumstances of the case what is the genuineness and effect of Ex.A.3 Teharir for its execution in respect of the disputed will Ex.A.2 and what is its effect ? Per contra, the learned counsel for the respondent defendant No.1 supported the judgments passed by the courts below and contended that there is no illegality or perversity in the impugned judgments so as to call for any interference in this second appeal, thus, the appeal deserves to be dismissed. I have considered the rival contentions raised by the learned counsel for the parties and perused the impugned judgments as well as the record of the case. It is an admitted fact that after the death of Dhokal Singh, Smt. Jawahar Kanwar and Nain Singh got equal ½ - ½ share in the property and mutation was accordingly recorded in the name of Smt. Jawahar Kanwar and Nain Singh for their ½ – ½ shares. It is also an admitted fact that late Smt. Jawahar Kanwar executed the will only in regard to her share and it is not the case of the appellant-plaintiffs that she executed the will in regard to the share of Nain Singh and as per the provisions of the Hindu Succession Act, she was well within her rights to execute such will. So far as the contention of the learned counsel for the appellant-plaintiffs that the will Ex.A.2 was executed by taking advantage of the fact that late Smt. Jawahar Kanwar was an illiterate and pardanasheen lady and she was having no knowledge about the execution of the will is concerned, there is concurrent finding of both the courts below in this regard on the questions of facts, which calls for no interference in this second appeal. In my considered opinion, both the courts below have decided all the issues after taking into account the relevant material available on record and I find no perversity, illegality or irregularity in the findings arrived at by the courts below. Both the courts below have also considered the fact of partition between the parties by the agreement Ex.A.1. So far as the questions of law as proposed in the memo of appeal are concerned, I do not think any substantial question of law is involved in this second appeal. The appeal filed by the appellant-plaintiffs is bereft of any merit and the same deserves to be dismissed. Consequently, this civil second appeal is dismissed at admission stage and the impugned judgments and decrees passed by the both the courts below are affirmed. No order as to costs.