Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 86 (HP)

Mast Ram v. Kanta Devi

2014-01-10

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT : - Dharam Chand Chaudhary, Judge: The judgment and decree under challenge in the present appeal has been passed by learned Additional District Judge (I), Kangra at Dharamshala in civil appeal No.2-P/98 on 17.3.2001 whereby he has reversed the judgment and decree passed on 26.9.1997 by learned Sub Judge 1st Class (Court No. II), Palamapur in civil suit No.270/88. 2. The subject matter of dispute in the present lis is land entered in khata No.10, khatauni No.23, khasra No. kita 14, measuring 1-35-18 hectares, situated in Mohal Sole Baner, Mauza Lambagaon, Tehsil Jaisinghpur, District Kangra (hereinafter referred to as “the suit land”). Respondents No.1 to 3 (hereinafter referred to as “the plaintiffs”) are daughters, whereas appellant, Mast Ram and proforma respondents No.5 and 6, Balak Ram and Jagat Ram and proforma respondent No.4, Prabhi Devi (hereinafter referred to as “the defendants”) were sons and widow respectively of the owner of the suit land, deceased Chhangu Ram. While as per the plaintiffs their father late Shri Chhangu Ram never executed any ‘will’ in respect of the suit land and that on his death the succession opened in their favour and also in that of appellant-defendant, Mast Ram and proforma respondents (hereinafter referred to as “the defendant”). The appellant-defendant being his 1st class legal heir propounded the ‘will’ dated 1.7.1984 and pleaded that pursuant to the will, the suit land came to be inherited by him alongwith other defendants and Smt. Malkan Devi, the second widow of Chhangu Ram. The mutation of the suit land according to him was sanctioned and attested by Assistant Collector 2nd Grade in their favour in the presence of the plaintiffs. Therefore, according to him, the plaintiffs are estopped by way of their acts, deeds and conduct from filing the present suit and the same being time barred and their being no locus standi to file the suit, the same is even not maintainable also. S/Shri Balak Ram and Jagat Ram and Smt. Prabhi Devi, defendants No.1, 2 and 4 respectively have however denied the execution of will by their predecessor late Shri Chhangu Ram during his life time and, as such, supported the contentions raised by the plaintiffs. 3. On the pleadings of the parties, the following issues were framed on 2.11.1989:- 1. Whether the plaintiffs and defendants are joint owners in possession of the suit land, as alleged? …OPP. 2. 3. On the pleadings of the parties, the following issues were framed on 2.11.1989:- 1. Whether the plaintiffs and defendants are joint owners in possession of the suit land, as alleged? …OPP. 2. Whether mutation No.41 dated 5.7.1984, sanctioned on the basis of will in favour of defendants, is wrong and illegal, as alleged? …OPP. 3. Whether Shri Changu Ram executed a valid will, as alleged, if so, its effect (onus objected to)? …OPD. 4. Whether the plaintiffs are estopped from filing the present suit by their acts and conduct, as alleged? …OPD. 5. Whether the plaintiffs have neither locus standi to sue nor have any got cause of action, as alleged? … OPD. 6. Whether the suit is bad for non-joinder of necessary parties, as alleged? …OPD. 7. Whether the suit is not maintainable, as alleged? …OPD. 8. Whether the suit is barred by limitation? …OPD. 9. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? …OPD. 10. Whether the suit is collusive as alleged by defendant No.3, in his preliminary objection No.7? …OPD-3.d 11. Relief. 4. The parties on both sides have produced oral as well as documentary evidence in support of their respective contentions. 5. Learned trial court while answering issue No.3 in affirmative has held that deceased Chhangu Ram during his life time executed a valid will and held the mutation of suit land sanctioned and attested on the basis thereof as legal and valid. The parties, therefore, were not found to be joint owners in possession of the suit land and issues No.1 and 2 were answered against the plaintiffs, whereas, issue No.3 in favour of the appellant-defendant. It was concluded that the plaintiffs are estopped from filing the suit and also that they never had any locus standi nor cause of action to file the same. Issue No.6 has also been answered in favour of the appellant-defendant as in view of the findings recorded by court below Malkan Devi was necessary party and as she has not been arrayed as such, therefore, the suit is bad for non-joinder of necessary parties. Issue No.6 has also been answered in favour of the appellant-defendant as in view of the findings recorded by court below Malkan Devi was necessary party and as she has not been arrayed as such, therefore, the suit is bad for non-joinder of necessary parties. While arriving at a conclusion that the mutation of the suit land was sanctioned and attested in favour of the appellant-defendant and proforma respondents-defendants on the basis of the will on 5.7.1984 in the presence of the plaintiffs and, as such, the suit filed beyond the period of three years was also held to be barred by limitation. The trial court while answering issue No.10 again in favour of the appellant-defendant has concluded that the suit being collusive between the plaintiffs and proforma respondents defendants was bad. The suit, however, was held to be valued properly for the purposes of court fee and jurisdiction and also that the same was maintainable. The cumulative effect of the findings recorded on all the issues by trial court was dismissal of the suit. 6. In appeal, learned lower appellate court has reversed the judgment and decree passed by the trial court and decreed the suit. It is the judgment and decree so passed by learned lower appellate court, under challenge in the present appeal on several grounds, however, mainly that the lower appellate court could have not reversed the well reasoned judgment and decree passed by the trial court after appreciation of the evidence available on record in its right perspective, that too, without adverting to the findings recorded on each and every issue. The court below, however, allegedly has not adverted to the findings recorded by learned trial court on the issues pertaining to estoppel, locus standi and nonjoinder of necessary parties and collusiveness of the suit. Therefore, on this score alone, the impugned judgment and decree has been sought to be quashed and set aside being not legally sustainable. The reversal of findings recorded by the trial court qua the genuineness and authenticity of the will has also been assailed on the ground that while doing so, the provisions contained under Section 91 of the Evidence Act have erroneously been pressed into service. The reversal of findings recorded by the trial court qua the genuineness and authenticity of the will has also been assailed on the ground that while doing so, the provisions contained under Section 91 of the Evidence Act have erroneously been pressed into service. The will could not be produced in evidence being not in his possession and the applications he preferred under Order 11 Rule 14 of the Code of Civil Procedure and also under Section 65 of the Evidence Act were dismissed. He, therefore, could have produced in evidence the scribe and marginal witnesses to the will in question, which he produced and they even supported the execution of the will, however, the evidence as has come on record, has been erroneously brushed aside. The attestation of the mutation in the presence of the plaintiffs and partition of the suit land having been already made by the revenue agency, the plaintiffs are not legally entitled to seek the declaration nor could have any relief been granted to them as they neither assailed the order of mutation nor the order of partition. The suit, therefore, was not at all maintainable and it is for this reason the plaintiffs preferred an application under Order 23 Rule 1 of the Code of Civil Procedure seeking permission to withdraw the suit with liberty reserved to them to file fresh. However, the said application was also dismissed by learned lower appellate Court. 7. On behalf of the appellant-defendant, much has been stated qua reversal of the judgment and decree passed by learned trial court on the ground that execution of a valid will by Chhangu Ram, predecessor-in-interest of the parties has not been proved, whereas according to appellant-defendant, it was incumbent on the part of learned lower appellate court to have adverted to the findings recorded by learned trial court on each and every issue and without reversing the same, the judgment and decree passed by learned trial court could have not been set aside. 8. On the other hand, learned counsel representing the respondents-plaintiffs while supporting the impugned judgment and decree has forcefully contended that the lower appellate court has discussed the findings recorded by the trial court on each and every issue with the help of evidence available on record and it is thereafter he reversed the findings so recorded and quashed the judgment and decree passed by the trial court. According to learned counsel when execution of the will is not at all proved, all actions, i.e. sanction and attestation of mutation and partition proceedings qua partition of the land amongst the appellant-defendant and the plaintiffs and proforma respondents-defendants loose its credibility and otherwise also, the same being behind the back of the plaintiffs, is hardly of any consequence. 9. Before adverting to respective contentions raised on behalf of the parties during the course of arguments, it is desirable to make reference to substantial questions of law on which this appeal has been admitted. The same read as follows:- 1. Whether the Lower Appellate Court has wrongly held the suit filed by the respondents-plaintiffs within period of limitation, when the plaintiffs were present at the time of sanctioning of mutation of inheritance in favour of the appellant-defendant to the estate of late Chhangu sanctioned by the Revenue authorities on the basis of the Will produced by one of the defendant, namely, Jagat Ram? 2. Whether the First Appellate Court has wrongly understood and misapplied the provisions of Sections 65 and 91 of the Evidence Act? 3. Whether the First Appellate Court has failed to appreciate the factum of partition having been effected by the Revenue authorities rendering the suit infructuous? 10. In view of the provisions contained under Sections 65 and 91 of the Indian Evidence Act and the will propounded by appellant-defendant is not on record, the effect of the partition proceedings and order of partition passed by the competent revenue officer in the present lis has to be determined by this court vis-a-vis the given facts and circumstances and also the law applicable. 11. The determination of substantial questions of law takes us to the question as to whether in the given facts and circumstances and also the evidence on record, the execution of the valid will as contemplated in the pleadings is proved or not. What is a will and the nature of proof required to be produced to establish its execution, has been discussed by the Apex Court in Kalyan Singh Vs. Smt. Chhoti and others, AIR 1990 SC 396 as under:- “A will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. Smt. Chhoti and others, AIR 1990 SC 396 as under:- “A will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood, the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as we as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” 12. It is again well settled that in the absence of suspicious circumstances surrounding the execution of the will, the proof of testamentary capacity and the signature of the testator itself is sufficient to prove its due execution, however, where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court. A Co-ordinate Bench of this Court in Smt. Leela alias Bali Devi Vs. mt. Drumpti Devi, 2000(2) Sim.L.J. 1722 has held that in order to infer the execution of a legal and valid will, the will must be in writing and duly signed by the testator as well attested by at least two witnesses. Also that its execution must be proved on record well within the parameters of Section 63 of the Succession Act. In the case in hand, the so called will, executed on 30.6.1984 has not seen the light of the day being not produced by the propounder, i.e. appellant defendant. Also that its execution must be proved on record well within the parameters of Section 63 of the Succession Act. In the case in hand, the so called will, executed on 30.6.1984 has not seen the light of the day being not produced by the propounder, i.e. appellant defendant. No doubt, he claims that the will was produced by proforma respondent-defendant, Jagat Ram at the time of attestation of mutation on 5.7.1984 before the Patwari concerned, however, said Shri Jagat Ram and for that matter the remaining proforma respondents, Shri Balak Ram and Smt. Prabhi Devi in the written statement filed to the suit have denied the execution of any such will by deceased Chhangu Ram. Shri Jagat Ram, aforesaid, while in the witness box has also denied the execution of any will by his father, deceased Chhangu Ram. He has also denied the production of any such will by him before the Patwari for attestation of the mutation on the basis thereof and rather as per his version, he came to know about the death of his father, Chhangu Ram on 4.7.1984 and could reach in his village on 5.7.1984 in the evening. In his cross-examination nothing has come to persuade this court to form an opinion that he has deposed falsely. 13. Similarly, the evidence as has come on record by way of the testimony of Yudhvir Singh, PW-1, attorney of respondent-plaintiff, Simro Devi and from that of respondent-plaintiff, Kanta Devi as well as PW-3 Raghunath, neither of the plaintiffs were present before the Assistant Collector at the time of sanction and attestation of the mutation of suit land on the basis of so called will. No doubt, DW-7, Shri S.B. Rawat, the then Assistant Collector 2nd Grade has stated that the plaintiffs and proforma respondents-defendants were present at the time of attestation of the mutation, however, his testimony that neither of them not known to him personally, demolishes the entire case as set out by the appellant-defendant in this behalf. No doubt, DW-7, Shri S.B. Rawat, the then Assistant Collector 2nd Grade has stated that the plaintiffs and proforma respondents-defendants were present at the time of attestation of the mutation, however, his testimony that neither of them not known to him personally, demolishes the entire case as set out by the appellant-defendant in this behalf. The possibility of either no one, i.e. plaintiffs and proforma respondents-defendants was present on 5.7.1984 at the time of attestation of the mutation on the basis of the so called will or someone else was produced in their place by the appellant-defendant, cannot be ruled out for the reason that the cogent and reliable evidence as has come on record by way of the testimony of PWs.1 to 3 and from that of respondent-defendant Jagat Ram reveal that they had not reached in the village after coming to know about the death of their father, Chhangu Ram. 14. The Rapat Rojnamcha Ex.DW-3/A has been heavily relied upon to show that the will was produced before the Patwari by respondent-defendant, Jagat Ram. This document on the face of it is wrong as in it the date of death of Chhangu Ram finds recorded as 2.7.1984, whereas, as per admitted case of the parties, he has died on 1.7.1984. Otherwise also, the version of Jagat Ram while in the witness box reveals that on 4.7.1984 when this Rapat was entered in the Rojnamcha, he was not at all present in the village and on coming to know about the death of his father on 4.7.1984, he could reach in the village only on 5.7.1984 in the evening. No doubt, DW-3, Madan Singh, Patwari has proved the Rapat Rojnamcha Ex.DW-3/A and stated that the will was produced by respondent-defendant, Jagat Ram, however, in the given facts and circumstances discussed hereinabove, he seems to have deposed falsely to help the appellant-defendant. Otherwise also, had the will been produced by Jagat Ram, he would have obtained his signature on the Rapat Rojnamcha. Otherwise also, had the will been produced by Jagat Ram, he would have obtained his signature on the Rapat Rojnamcha. Be it stated that as per the rule of law, the record maintained by a public servant in the discharge of his official duty has to be believed to be true, however, exceptions are always there and the present in the given facts and circumstances when the so called will was executed a day prior to the death of the testator and the mutation allegedly on the basis thereof attested thereafter within 2-3 days, the possibility of Rapat Rojnamcha Ex.DW-3/A having been fabricated and engineered to help the appellant-defendant, cannot be ruled out. 15. The order of mutation Ex.DW-7/A no doubt speaks about the presence of the plaintiffs and that of proforma respondents-defendants at the time of attestation of the mutation, however, in view of the surrounding circumstances such as notice, if any, issued and served upon them to remain present before the Assistant Collector, DW-7 at the time of attestation of mutation and there being no contemporaneous record to show that they were in the knowledge of attestation of mutation on 5.7.1984 on the basis of the so called will or requested either by the appellant-defendant or any other beneficiary under the will to remain present before the Assistant Collector, the mere reference of their names in the order of mutation Ex.DW-7/A is not sufficient to arrive at a conclusion that they were present before DW-7 at the time of attestation of the mutation. Above all, the execution of the will by late Shri Chhangu Ram is surrounded by suspicious circumstances for the reason; firstly that the same was not proved by the propounder, i.e. the appellant-defendant and secondly, the execution thereof on 30.6.1984, a day prior to the death of said Shri Chhangu Ram, who admittedly died on 1.7.1984 and even its production before the Patwari concerned on 4.7.1984, i.e. well before performance of his last rites and immediately after three days of his death renders this document highly doubtful. 16. In our social set-up, the sons or daughters and for that matter the other legal heirs would not prefer to run after the property left behind by their predecessor well before his last rites are performed. 16. In our social set-up, the sons or daughters and for that matter the other legal heirs would not prefer to run after the property left behind by their predecessor well before his last rites are performed. Therefore, in normal course neither the plaintiffs nor appellant-defendant or proforma respondents-defendants would have preferred to act upon the will had any such ‘will’ been executed by their predecessor, deceased Chhangu Ram, that too, within 3-4 days of his death. The appellant-defendant seems to have engineered the story in this behalf in connivance with revenue authorities and also managed the attestation of mutation Ex.DW-7/A falsely. When the will has not at all been produced so as to satisfy the conscious of the court qua its execution by deceased Chhangu Ram, the evidence as has come on record by way of the testimony of DW-4, Amin Chand, the so called scribe and DW-5 Kuldeep Singh as well as DW-6 Hoshiar Singh, the so called attesting witnesses is simply to be ignored as neither the contents thereof could be put to them nor they could see the signatures of the testator and also their own signatures thereon. Once the execution of a legal and valid will is not established and the findings on issue No.3 were set aside by the learned lower appellate court, the necessary implication thereof obviously is that the suit land is joint of the parties to the suit and Smt. Malkan Devi, the 2nd widow of deceased Chhangu Ram, as her status as such is neither dispute by the plaintiffs nor the appellant-defendant and for that matter even by the proforma respondents-defendants also. The mutation Ex.DW-7/A sanctioned and attested on the basis of so called will is also illegal being null and void. Therefore, the findings to the contrary recorded on issues No.1 and 2 stood automatically reversed. 17. The suit cannot also be said to be time barred for the reason that the plaintiffs came to know about the attestation of mutation pursuant to the so called will in the month of November, 1987 and subsequently on 4.8.1988 when they obtained the extract of revenue record. Therefore, the suit filed on 3.9.1988 was well within the period of limitation for the reasons that a suit of this nature under Article 58 of the Constitution of India can be instituted within three years from the date of knowledge. Therefore, the suit filed on 3.9.1988 was well within the period of limitation for the reasons that a suit of this nature under Article 58 of the Constitution of India can be instituted within three years from the date of knowledge. Therefore, the lower appellate court has not committed any illegality or irregularity while holding the suit well within the period of limitation. There is no question of misinterpretation or misappreciation of the provisions contained under Sections 65 and 91 of the Evidence Act for the reason that it is the appellant-defendant himself, who opted to withdraw the application, he preferred under Section 65 of the Evidence Act to prove the will by way of leading secondary evidence in the trial court. As regards the application he preferred under Order 11 Rule 14 of the Code of Civil Procedure for a direction to respondent-defendant, Jagat Ram to produce the will, the same was dismissed on merits and he having not assailed the order so passed by the trail court, the same has attained finality. Neither the partition proceedings nor order of partition can estop the plaintiffs from filing the present suit for the reason that they were not parties in those proceedings. Otherwise also, the doctrine of estoppel is attracted only in those cases where a person makes a representation to another and another person acts upon the representation so made knowing fully well that the action taken by such another person would be detrimental to his interest. This court draws support to such findings from the judgment of the Apex Court in Gyarsi Bai and others Vs. hansukh Lal and others, AIR 1965 SC 1055 , which reads as follows:- “….to invoke the doctrine of estoppel three conditions must be satisfied: (1) representation by a person to another, (2) the other shall have acted upon the said representation, and (3) such action shall have been detrimental to the interests of the person to whom there presentation has been made. ….” 18. The present, however, is not a case where it can be said that the plaintiffs had made any representation to the appellant-defendant knowing fully well that he will act upon such a representation and such action would be detrimental to his interests. ….” 18. The present, however, is not a case where it can be said that the plaintiffs had made any representation to the appellant-defendant knowing fully well that he will act upon such a representation and such action would be detrimental to his interests. The simple case here, however, is that the plaintiffs were present before the Assistant Collector at the time of attestation of the mutation and also that the partition of the suit land having been already taken place inter se the defendants and it is on this ground, the plea of estoppel has been raised, which in the considered opinion of this Court is neither legally nor factually sustainable as the appellant-defendant has miserably failed to prove his case so set out in the pleadings. 19. The lower appellate Court, no doubt, has failed to advert to the findings on issue No.6 recorded by the trial court. The fact, however, remains that Smt. Malkan Devi having already disposed of her share in the suit land to the appellant-defendant was not a necessary party and, as such, her presence or absence as a party in the suit is hardly of any consequence nor can tilt the scales in favour of or against either party. 20. In view of the above discussion, I find no illegality and infirmity with the impugned judgment and decree and the same, as such, is hereby affirmed and the appeal dismissed.