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2014 DIGILAW 1084 (HP)

Swaran Kanta v. Yoginder Singh

2014-08-14

SURESHWAR THAKUR

body2014
JUDGMENT : - Sureshwar Thakur, J. The plaintiff’s suit for declaration qua the suit property for taking the character of ancestral and coparcenary property, hence, forbidding the deceased/testator Amar Singh, father of the parties at contest, executing a Will Ex.D-2, came to be decreed by the learned trial Court. The defendants were aggrieved by the judgment and decree of the learned trial Court, hence, preferred an appeal before the learned first Appellate court and the learned first Appellant Court, in, its impugned judgment and decree, dismissed the suit of the plaintiff, consequently, allowed the appeal preferred by the defendants before it. The plaintiff, is, now aggrieved by the impugned judgment and decree of the learned first Appellate Court, hence, has preferred the instant appeal before this Court. 2. Brief facts of the case are that the land comprised in Khata Kahatauni No.305/389, Khasra Nos. 4102, 4189, 5320, 5321 measuring 312/396, khasra No.4185 to the extent of half share measuring 10 sq. yards, 2 sq. feet situated in Mohalla Bangotu, Chamba town and land bearing Khata Khatauni No. 1/1, Khasra Nos. 261, 262, 264, 294, 781, 783, 814, 815, 842, 851, 875, 877, 923, 935, 985 and 986, measuring 16 bighas 16 biswas, situated in Mohal Thanei and the land comprised in Khata Khatauni No.1/1, Khasra No.590, measuring 3 biswas, situated in Mohal Kuthed was in the ownership of father of plaintiff. Proforma defendants No.3 to 6 and defendants No.1 and 2, from the time of his ancestors. It is alleged that Amar Singh inherited the suit property from his forefathers and thus he was not competent to bequeath the said property. Proforma defendants No.3 to 6 and defendants No.1 and 2, from the time of his ancestors. It is alleged that Amar Singh inherited the suit property from his forefathers and thus he was not competent to bequeath the said property. The defendants No.1 and 2 are deposed to have exercised the influence and in the absence of proforma defendants, got the will dated 24.5.1985 attested and registered before the Sub Registrar, Chamba in their favour and in favour of the plaintiff and that after the death of Amar Singh, in the month of April, 1991, the defendants on the basis of Will got mutation No.3144, dated 4.2.1992 in respect of property situated at Chamba town (I), mutation No.316, dated 29.6.1993 in respect of property situated at Thanei and mutation No.246 dated 29.6.1993 in respect of property situated at Kuthed, Tehsil Churah, District Chamba, attested in the absence and without notice to the plaintiff and in the absence of proforma defendants by taking advantage of old age and feeble mind of Amar Singh, got the will executed in their favour instead of dividing the property in equal shares. The defendants Nos.7 to 8 have been arrayed as proforma defendants as they are co-owners in the khata. The defendants are deposed to have been asked time and again that the suit property is joint Hindu vain. Hence, the suit for declaration that Amar Singh son of Govind son of Labh Singh has been coming in possession of the suit property from the time of his ancestors and thus, he was not legally competent to execute any Will and thus the mutation Nos. 3144, 316 and 246 attested on the basis of Will be declared null and void and the plaintiff, defendants No.1 & 2 and proforma defendants No. 3 to 6 be declared entitled to suit property in equal share. 3. The defendants/respondents contested the suit and filed written statement, thereby denied the claim of the plaintiff. In their written statement the defendants have taken the preliminary objection inter alia cause of action, maintainability, valuation of the suit, simiplicitor suit for declaration is not maintainable without further prayer and that the plaintiff is estopped by his act and conduct to file the present suit as mutation in respect of Chamba property was attested in presence of the plaintiff, but he never raised any objection at that time. On merit, ownership and possession of Amar Singh with respect to the suit property has been admitted yet the it has been denied that Amar Singh received the property from his ancestors. It is submitted that the whole property situated at Chamba was burnt in the fire in the year 1935-36 and it was late Shri Amar Singh, who reconstructed the house with his own efforts. It is averred that Amar Singh was a ‘Jagirdar’ having lands at village Bagor and after coming into force the Himachal Pradesh Abolition and Big Estate Act, the whole estate vested in the Government except a ‘Kothi’ at Thanei and village Bathri and that Amar Singh again purchased 16/16 bighas of land from one Hira, as such, the property at Chamba and Bagor was self acquired property of Amar seeking advice from late Shri Pritam Singh, Advocate and divided his property comprised in Khasra Nos. 4181, 4183, 4190, 4191, 4192, 4193, 4196, 4188, 4178, 4182, 4187 and 4184 situated at Chamba town between the plaintiff and the defendants by executing a gift deed dated 17.5.1972 registered on 20.5.1972 in their favour and delivered the possession of the property to them and that plaintiff was given khasra numbers 4186 and 4188 besides joint ownership of kahsra numbers 4178, 4182, 4184 and 4187, but the plaintiff has purposely failed to disclose these facts in his suit and has not included all the khasra number in the suit and thus he has not come to the Court with clean hands. It is further alleged that the plaintiff separated his mess and residence and the defendants were also living separately, but late Shri Amar Singh was living with the defendants. It is denied that the properties were ancestral in nature and willed away in favour of the defendants under their influence. It is pleaded that the Will was executed on 24.5.1985 and it was registered on 3.6.1985 and that late Shri Amar singh was hale and hearty and was having sound disposing state of mind at the time of execution of the Will and that he died in April, 11, 191 about six years after the execution of the Will. It is pleaded that the Will was executed on 24.5.1985 and it was registered on 3.6.1985 and that late Shri Amar singh was hale and hearty and was having sound disposing state of mind at the time of execution of the Will and that he died in April, 11, 191 about six years after the execution of the Will. Lastly, it is submitted that Amar Singh fell ill in March, 1991 and that plaintiff has been living separately after the division of the property and is in occupation of his share as owner and at the time of partition in the year 1972, the only member of the family were late Shri Amar Singh, plaintiff and defendants. It is pleaded that the house situated in Khasra number 4189 belonging to Smt. Samundri Devi was inherited by late Amar Singh on her death and as such the suit property was self acquired No.3 to 9 are heirs of Amar Singh but they never wanted to join in the suit and challenge the validity of the Will and that the Will executed by Amar Singh is genuine and executed by him by his free will benefiting his all the three sons, but depriving the four daughters who are married and are well provided for. 4. The plaintiff/appellant filed replication to the written statement of the defendants/respondents, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck following issues inter-se the parties in contest:- 1. Whether the suit property is joint Hindu Family Ancestral and coparcenary property, as alleged? OPP 2. Whether late Shri amar Singh executed a valid Will in favour of the defendants, as alleged. If so, its effect? OPD. 3. Whether the plaintiff has a cause of action? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 7. Relief. 6. 3. Whether the plaintiff has a cause of action? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD. 6. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD 7. Relief. 6. On an appraisal of the evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiff/appellant, for declaring the suit property to be joint Hindu Property, ancestral and coparcenary, as also, the Will of 24.5.1985, Ex. D-2 and mutation Nos.3144, 316 and 246 being null and void qua the rights of the plaintiff/appellant in respect of the suit land. In appeal, preferred by the defendants/respondents before the learned first Court, the learned first Appellate Court allowed the appeal and the dismissed the suit of the plaintiff/appellant. 7. Now the plaintiff/appellant has instituted the instant Regular Second Appeal before this Court, assailing the findings, recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 19.8.2002, this Court, admitted the appeal instituted by the plaintiff/appellant, against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the findings of the learned First Appellate Court are perverse in the face of the admission of DW1 Yogender Singh regarding the ancestral nature of the suit property? 2. Whether the will dated 24.5.1984, Ex. D2 regarding the suit property, can be held to be valid qua the rights of the Appellate, in spite of the fact that the suit property is joint Hindu property, ancestral and coparcenery in nature? Substantial questions of Law No.1 and 2: 8. The plaintiff/appellant does not contest the factum of the testamentary disposition comprised in Ex. D-2 having come to be executed in favour of the defendants/respondents by the deceased testator Amar Singh in compliance with the enshrined principles envisaged in Section 63 of the Indian Succession Act. Substantial questions of Law No.1 and 2: 8. The plaintiff/appellant does not contest the factum of the testamentary disposition comprised in Ex. D-2 having come to be executed in favour of the defendants/respondents by the deceased testator Amar Singh in compliance with the enshrined principles envisaged in Section 63 of the Indian Succession Act. The bequest of the suit property in favour of the defendants/respondents has been assailed on the score of the deceased testator Amar Singh lacking the testamentary capacity, inasmuch, as, with the suit property purportedly having the hue and partaking the character of ancestral co-parcenary property, it forbade and interdicted him to bequeath the suit property, as he did it. 9. Labh Singh and Govind Singh were ancestors of the deceased testator Amar Singh. For the suit property to acquire the hue or trait of, it, being construable to be ancestral co-parcenary property, it was incumbent factum comprised, in, the adduction into evidence, of, mutations pronouncing upon the fact of, it, having continuously, since Labh Singh uptil, its devolving upon his successors-in-interest, namely, Govind Singh and Amar Singh, flowed uninterruptedly. However, apart from the bald statement of the plaintiff, qua the factum of the suit property bearing the characteristic of ancestral coparcenary property, hence, interdicting the deceased testator Amar Singh, to, execute his testamentary disposition, the apposite best evidence has omitted to be adduced on record. In the absence of adduction of best evidence to underscore the factum of the suit property having the colour and tinge of ancestral and co-oparcenary property, the bald testimony of the plaintiff is insufficient, as well, as, inadequate to clinch said fact. Therefore, the conclusion drawn by the learned first Appellate Court, in the absence of adduction of the best evidence, comprised, in, the placing on record by the plaintiff/appellant, the mutations portraying the factum of Amar Singh having uninterruptedly received the suit property from his predecessors-in-interest, namely, Govind Singh and Labh Singh, as such, the suit property lacking the character and trait of it being classified as ancestral co-oparcenary property, was a tenable and warrantable conclusion and necessitates no interference. 10. Even otherwise, the uncontroverted fact, of, the deceased testator, during his life time having executed gift deed Ex. D1, in, favour of the plaintiff, as well, as, the defendants, in pursuance whereto mutations were attested, comprised in Ex.D14 to Ex. 10. Even otherwise, the uncontroverted fact, of, the deceased testator, during his life time having executed gift deed Ex. D1, in, favour of the plaintiff, as well, as, the defendants, in pursuance whereto mutations were attested, comprised in Ex.D14 to Ex. D-16, in, favour of the recipients, connotes acquiescence to the factum of the suit property being self acquired property of the deceased Amar Singh, hence, his having, too, an absolute right, to, make a testamentary disposition in favour of the defendants/respondents by way of bequest, comprised in Ex. D2, whose valid and due execution has remained un-assailed, in, the Regular Second Appeal before this Court. The inference of acquiescence arising from the fact of the 1, alienated a part of his property, in, favour of the plaintiff, as well, as, the defendants, would have come to be torn apart only in the face of evidence placed, on, record by the plaintiff, that, the property comprised in Ex. D-1, was, not ancestral co-parcenary property, rather was self acquired property, hence, it was alienable by way of gift. When the plaintiff/appellant has unconcerted to in the above manner or has omitted to outweigh the inference of acquiescence of the deceased testator Amar Singh, also, hence, enjoying the testamentary capacity to execute Ex. D-2, in favour of the defendants, hence, given the factum of the plaintiff being the beneficiary of gift deed, Ex. D-1 and with his having not led cogent evidence to personify the fact that the property comprised in Ex. D-2 was not the self acquired property of Amar Singh, the deceased testator, a formidable and fortifying inference which rather ensues is that the property comprised in Ex.D1, too, was the self acquired property of the deceased testator Amar Singh and that, hence, also the property comprised in Ex. D-2, is, too, the self acquired property of the deceased testator Amar Singh. 11. Though, the learned counsel appearing for the plaintiff/appellant has adverted to the testimony of DW-1 Yogender Singh, comprised in his cross-examination, wherein, there is a communication by the defendant of the property at Chamba being joint, as also, the “Jagirs” being joint, to canvass before this Court that it comprises an admission of the suit property bearing the characteristic and trait of it being co-parcenary ancestral property. The effect of the deposition of DW-1 voicing the aforesaid communication, is, belittled and rendered nugatory, in, the face of the best documentary evidence comprised, in, the mutations qua the suit property unraveling the fact of the suit property having come to be continuously/uninterruptedly acquired by the deceased testator Amar Singh from Labh Singh and Govind Singh, as such, when it then could be as a corollary, hence, when the said best evidence has been omitted to be placed on record, nor also when at the time of his making the said deposition in his cross-examination comprising the purported admission qua the ancestral co-parcenary nature of the suit land, he has remained unconfronted with the best documentary evidence qua the suit property bearing the character of co-parcenary ancestral property. Consequently, the mere admission of defendant No.1, in absence thereof, is insignificant, rather is to be concluded to be illusory, resultantly, it has no probative force and it cannot be relied upon by the learned counsel appearing for the appellant/plaintiff for canvassing that it comprises evidence qua the suit property being coparcenary ancestral property and that it, as such, erodes/corrodes the testamentary disposition of the deceased Amar Singh comprised in Will Ex.D-2, qua it. 12. Even otherwise, the admission, if any, of DW 1 would not succor the conclusion as sought to be drawn on its strength by the learned counsel appearing for the appellant, for the reason that, it, for gaining leverage necessitated its being inconsonance with the mutations qua the suit property delineating the factum of Amar Singh having continuously and uninterruptedly since Labh Singh received the suit property in his hand. Hence, when the best evidence is omitted to be placed on record, the ensuing conclusion is that the admission aforesaid is not inconsonance with the best evidence for proving the fact at hand, as such, when it is inconsistent with the revenue record, it, has to be held to be of no value. Nor the Court can draw any conclusion on its strength qua the nature of the suit property as then such a conclusion would be antithetical and diametrically opposed to the revenue record qua the factum of the character of the suit land recorded therein, which would be extremely hazardous. 13. Nor the Court can draw any conclusion on its strength qua the nature of the suit property as then such a conclusion would be antithetical and diametrically opposed to the revenue record qua the factum of the character of the suit land recorded therein, which would be extremely hazardous. 13. Moreover, the learned counsel appearing for the defendant/respondent has concerted before this Court that the suit of the plaintiff is not maintainable, inasmuch, as, the plaintiff/appellant has not prayed for the relief of possession. He also contends that given the factum of the defendant/respondent being uncontrovertedly in possession of the suit property, hence, when it was incumbent upon the plaintiff/appellant, too, also seek a decree of possession of the suit property, his having omitted to do so, renders his simplicitor suit for declaration to be not maintainable. While canvassing the aforementioned submission before this Court, he relies upon the decision rendered by the Hon’ble Apex Court in Ram Saran and another versus Smt. Ganga Devi, AIR 1972 SC 2685 and decision rendered by the Hon’ble Allahabad High Court in Dwarka Prasad and others versus Mt. Jasoda Kunwar and others, AIR 1933 Allahabad 958 wherein it has been voiced that when the plaintiff is not in possession of the suit property, he has no right to ask for a pure declaratory decree. Further reliance is also placed upon the judgment reported in Naoroibam Biar Singh and others versus Waikhom Leirenjao Singh and others, AIR 1958 Manipur 38 , the relevant paragraph No. 16 whereof is extracted hereinafter, accentuates the proposition that a simiplictor suit for declaration is not maintainable when the plaintiff is out of possession of the suit land. “16. I take up the question of possession first. “16. I take up the question of possession first. It is undisputed and cannot be disputed that if the plaintiffs were not in possession of the 881/2 paris of the land allotted to the principal defendants and others of their party on the date they filed the present suit they cannot be granted a declaration of title to that land, even if it were assumed for the sake of arguments that they have a title to it because of the prohibition contained in the proviso to S.42 of the Specific Relief Act.” Reliance was also placed by the learned counsel appearing for the defendants/appellant upon Vinay Krishna versus Keshwar Chandra and another, AIR 1993 SC 957 the relevant paragraph whereof is extracted hereinbelow:- “14. The plea of permissive possession is not stated anywhere in the plaint. Therefore, we cannot permit at this stage such a plea to be raised. In Md. Aftabuddin Khan's case {AIR 1977 Orissa 69 (supra) what was held is to the following effect (para 15)}: “Long arguments had been advanced before us that a suit merely for a declaratory relief when the plaintiffs were out of possession was not maintainable. Reliance had been placed on the provisions of Section 34 of the Specific Relief Act. While Mr. Dutta contended that the said bar applied to the suit, Mr. Mahapatra for the respondent claimed that it was not a suit covered by Section 34 of the Specific Relief Act. It is true that the plaintiffs had alleged that they were still in possession notwithstanding the alienation. The Court, however, found that plaintiffs were not in possession. Undoubtedly, plaintiffs were obliged to ask for recovery of possession in order to have an effective decree. Mr. Mahapatra's contention that the bar of Section 34 of the Specific Relief Act would not arise where in the plaint there is an assertion that possession is with plaintiff though as a fact it is not, does not appeal to us as a sound proposition in law. Finding this defect and relying upon the general prayer in the plaint and keeping in view the power of the Court to grant such reliefs as a party before it may be found entitled to, the Court directed the plaintiffs to recover possession on payment of the requisite Court-fees. We agree with Mr. Finding this defect and relying upon the general prayer in the plaint and keeping in view the power of the Court to grant such reliefs as a party before it may be found entitled to, the Court directed the plaintiffs to recover possession on payment of the requisite Court-fees. We agree with Mr. Dutta that if an amendment of the plaint had been asked for, it would have been more appropriate than the Court exercising suo motu jurisdiction. But we are not inclined to agree that the Court had no jurisdiction to do what has been done. Mr. Dutta was not in a position to indicate to us what prejudice has been caused to the defendants by not requiring the plaintiffs to make a formal application for amendment for addition of the relief of recovery of possession and in not giving an opportunity to the defendants to file a counter. In this view of the matter, we are not inclined to accept the contention of Mr. Dutta that the learned single Judge committed an error of jurisdiction in allowing the relief of recovery of possession.” This decision has no application to the facts of this case for the simple reason that therein it was found that no prejudice had been caused to defendants by not requiring the plaintiffs to Chandra and Jagdish Chandra as well as the tenants were in possession and that Keshav Chandra was in possession of part of the property in his own right and that Jagdish Chandra had no right or title to House No. 52. In order that a decree could be passed for possession in respect of the portion of the House No. 52 which was in possession of Jagdish Chandra, it is necessary to determine the portion of House No. 52 which was in possession of Jagdish Chandra as well as the portion in which Keshav Chandra was entitled to remain in possession. This could be done only after the plaint had been amended and, therefore, without an amendment of the plaint, a decree for possession could not be passed in respect of the portion of House No. 52 in possession of Jagdish Chandra. As a matter of fact suit No. 37/65 was filed for ejectment of the defendants. No doubt that suit came to be consolidated along with the present suit. As a matter of fact suit No. 37/65 was filed for ejectment of the defendants. No doubt that suit came to be consolidated along with the present suit. But once the bar under Section 42 of the Specific Relief Act became operative, in that the title itself was in jeopardy, no relief could be granted with reference to ejectment. The High Court is right in this conclusion in this regard. Therefore, the consolidation does not improve the position of the plaintiff. It was held in Supreme General Films Exchange's case (supra) quoting the earlier ruling of this Court in Vemareddi Ramaranghava Reddy v. Konduru Seshu Reddy that Section 42 of the Specific Relief Act is not exhaustive and independent of that section a declaratory relief can be granted. It requires to be noted that in that case the suit was for declaration that the compromise decree was not binding on the deity. Hence, it fell outside Section 42 of the Act. Supreme General Exchange's case itself related to a lease. But we are confronted in the present situation with a declaration of title in relation to immovable property which is specifically covered under Section 42 of the Specific Relief Act. So, this again does not lend any support to the appellant.” The learned counsel for the defendant/respondent has, hence, added vigour to his contention that the simplicitor suit for declaration by the plaintiff qua his purported share in the suit property, when he is not in exclusive possession of any part of the suit property, is, not maintainable, in the absence of his seeking a decree for possession of the suit property. 14. This Court has carefully perused the view espoused in the judgments, referred to hereinabove. The enunciation in the judgments relief of possession of the suit property, whereas, his proceeding, to, only stake a decree for a declaratory title to the suit property, renders, his suit to be barred, as well, as, not maintainable. 14. This Court has carefully perused the view espoused in the judgments, referred to hereinabove. The enunciation in the judgments relief of possession of the suit property, whereas, his proceeding, to, only stake a decree for a declaratory title to the suit property, renders, his suit to be barred, as well, as, not maintainable. The aforesaid ratio is loudly emanating and imminent, on its application, to the facts of the present case, inasmuch, as with the plaintiff, being not in possession of the suit property, yet omitting to claim relief of possession of the suit property, rather seeking only a declaratory decree qua the suit property, as such, when he was enjoined to also when being out of possession of the suit property, too, along with his seeking a declaratory decree, to, the suit property, seek a decree of possession qua the suit property, his, having omitted to seek a decree for possession along with a declaratory decree, renders his suit to be barred as well as not maintainable. Accordingly, the substantial questions of law are answered against the plaintiff/appellant and in favour of the respondents/defendants. 15. The result of the above discussion is that the appeal, preferred by the plaintiff/appellant, is dismissed and the judgment and decree, rendered by the learned first Appellate Court, is affirmed and maintained. Record of the learned Courts below be sent back forthwith.