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2015 DIGILAW 1369 (HP)

Rajeshwari Devi v. Vijay Kumari

2015-09-28

RAJIV SHARMA

body2015
JUDGMENT RAJIV SHARMA, J. 1. This Regular Second Appeal is directed against the judgment and decree, dated 13.5.2002, passed by the learned District Judge, Hamirpur, Himachal Pradesh in Civil Appeal No. 115 of 1994. 2. Key facts necessary for the adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as the plaintiff for the sake of convenience) had filed a suit against the appellants-defendants (hereinafter referred to as the defendants for the sake of convenience) for declaration and also for possession with the averments that she is owner of double storeyed house consisting of two rooms and varandah alongwith four shops fully detailed in the site plan attached, situated on Khata No. 257 min, Khatauni No. 270 min, Khasra No. 298 old, new Khasra No. 401, measuring 11 kanals 2 marlas gair mumkin abadi and Khasra No. 413, measuring 8 Kanals 3 Marlas (hereinafter referred to a the suit property for the sake of convenience), which was previously owned by the father of the plaintiff, namely, Bakshi Ram. Bakshi Ram executed a valid registered will in respect of the suit property in favour of the plaintiff on 13.7.1982. Plaintiff is the real daughter of Bakshi Ram. Bakshi Ram died on 30.5.1988. The defendants have nothing to do with the suit property. 3. The suit was contested by the defendants. It is stated that no valid will was ever executed by deceased Bakshi Ram on 13.7.1982 and the plaintiff has manipulated a forged will by fraud and it has already been declared illegal by the learned District Judge in a Petition No. 9 of 1988, titled Vijay Kumari vs. General Public. It is further stated that the defendants are owners in possession of the suit property. 4. Issues were framed by the learned Sub Judge 1st Class (II), Hamirpur on 7.11.1991 and 18.4.1994. The suit was dismissed by the learned Sub Judge, 1st Class (II), Hamirpur on 15.6.1994. 5. Plaintiff preferred an appeal before the learned District Judge, Hamirpur, Himachal Pradesh He allowed the same on 13.5.2002. Hence this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 24.7.2002:- “1. The suit was dismissed by the learned Sub Judge, 1st Class (II), Hamirpur on 15.6.1994. 5. Plaintiff preferred an appeal before the learned District Judge, Hamirpur, Himachal Pradesh He allowed the same on 13.5.2002. Hence this Regular Second Appeal. 6. This Regular Second Appeal was admitted on the following substantial questions of law on 24.7.2002:- “1. Whether the Lower Appellate Court has misappreciated and misapplied the correct legal position by holding that the order of the Probate Court become final with respect to the execution and attestation of the will, even in the proceedings where the question of title between the parties is involved in the civil proceedings? 2. Whether the Lower Appellate Court has committed grave procedural illegality, effecting materially the right of the Defendants-Appellants by refusing to go into the question of the due attestation, execution as well as the suspicious circumstances concerning the will set up by the Plaintiff-respondent by relying upon the decision of the Probate Court only? Are not the findings of the Lower Appellate Court vitiated in not taking into consideration the findings returned by the Trial Court vis-a-vis evidence adduced by the parties with respect to the will Exhibit PW2/A. 3. Whether the Lower Appellate Court has further acted with material illegality and irregularity in not taking into consideration the question of maintainability, non-joinder etc. by holding that no appeal against such findings was preferred by the Defendants-Appellants in whose favour decree was passed by the Trial Court?” 7. The appellants have also moved an application under Section 100(4) & (5) read with proviso and Order 42(2) and Section 151 of the Code of Civil Procedure bearing C.M.P. No. 7840 of 2015 for framing additional substantial question of law, which was allowed on 18.8.2015 and the appeal was also deemed to have been admitted on the following additional substantial question of law:- “When the will Ex. DW4/A does not pertain to the land comprised in Khasra No. 413 and the shops in possession of the defendants-appellants are not comprised in the land referable to the estate of late Sh. DW4/A does not pertain to the land comprised in Khasra No. 413 and the shops in possession of the defendants-appellants are not comprised in the land referable to the estate of late Sh. Bakshi Ram, has not the Lower Appellate Court committed grave error of law and jurisdiction and acted in erroneous, perfunctory and perverse manner in not at all deciding the disputed question regarding the title of plaintiff-respondent vis-a-vis the property in possession of defendant-appellant including the structures which were also not identified by plaintiff-respondent thereby rendering the impugned judgment erroneous and perverse?” 8. Mr. Bhupender Gupta, learned Senior Advocate for the appellants, on the basis of the substantial questions of law framed, has vehemently argued that the learned first appellate Court has misread and misappreciated the oral as well as documentary evidence. He then contended that the will was not executed in accordance with law. The question of non-joinder has not been rightly determined by the Courts below. He has also relied upon the order, dated 20.04.2010, passed by the Settlement Officer. 9. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree, dated 13.5.2002, passed by the learned first appellate Court. 10. I have heard the learned counsel for the parties and gone through the pleadings, judgments and the records, carefully. 11. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 12. The will, dated 13.07.1982 is Ex. PW-2/A. It was scribed by PW-2, Deep Kumar, Document Writer. According to him, the will was executed by deceased Bakshi Ram in favour of Vijay Kumari, grandson and daughter, Krishan Lal and Manju. The contents of the will were read over and explained to deceased Bakshi Ram, who after admitting the same to be correct, had appended his signatures on the same in the presence of witnesses and the witnesses have also signed it. Bakshi Ram was in his senses at the time of execution of the will. 13. PW-3 Dile Ram, Lambardar is one of the marginal witnesses of the will, dated 13.07.1982, Ex. PW2/A. According to him, the will was executed by deceased Bakshi Ram in favour of Vijay Kumari and his grandson and daughter and at that time, Bakshi Ram was in his senses. 13. PW-3 Dile Ram, Lambardar is one of the marginal witnesses of the will, dated 13.07.1982, Ex. PW2/A. According to him, the will was executed by deceased Bakshi Ram in favour of Vijay Kumari and his grandson and daughter and at that time, Bakshi Ram was in his senses. The contents of the will were read over and explained to Bakshi Ram, who after admitting it to be correct, had appended his signatures on the same. He identified his signatures vide endorsement Ex. PW2/B. He also deposed that Vijay Kumari was not present at the time of execution of will. 14. PW-4 Manju Kumari is a formal witness. She has proved the site plan Ex. PW4/A. PW-5 Madan Lal deposed that plaintiff is daughter of deceased Bakshi Ram. Bakshi Ram died in the year 1988. He performed his last rites. 15. Plaintiff has appeared as PW-1. According to her, three brothers had not rendered any services to her father. She had performed his last rites. Her father was fully conscious at the time of execution of the will, dated 13.07.1982. She has shown her ignorance about the execution of any other will by deceased Bakshi Ram prior to Will, dated 13.07.1982, Ex. PW2/A. Her father was about 70 years old at the time of execution of the Will. 16. DW-1 Sanjay Kumar has testified that his grand father Bakshi Ram was in the habit of executing the wills and getting those cancelled. Bakshi Ram used to live with the plaintiff Vijay Kumari. He was under the influence of Vijay Kumari. He was an aged person and was not in a position to understand his well being. The relations between the plaintiff and Bakshi Ram were good and voluntarily stated that deceased Bakshi Ram was under the influence and control of Vijay Kumari. 17. DW-4 Man Singh deposed that Bakshi Ram used to execute wills and get them cancelled. He used to live with the plaintiff Vijay Kumari and was under her influence. DW-5 Avtar Singh deposed that the elder son Surinder Kumar had performed Pind Dans of deceased Bakshi Ram. He has admitted in the cross-examination that Bakshi Ram executed a will in favour of his daughters in the year 1982. 18. DW-6 Balbir Singh has proved the site plan Ex. DW-5 Avtar Singh deposed that the elder son Surinder Kumar had performed Pind Dans of deceased Bakshi Ram. He has admitted in the cross-examination that Bakshi Ram executed a will in favour of his daughters in the year 1982. 18. DW-6 Balbir Singh has proved the site plan Ex. DW-6/A. DW-7 Roshan Lal has deposed that the mental health of deceased Bakshi Ram was not balanced and he was under the influence of his daughter. 19. The plaintiff has duly proved the execution of will Ex. PW2/A, dated 13.07.1982. The will was scribed by PW-2 Deep Kumar. He has specifically deposed that he has read over and explained the contents of the will to deceased Bakshi Ram and Bakshi Ram after admitting it to be correct, had appended his signatures on the same. Thereafter, the witnesses have signed the will. 20. In Thakur Lalta Baksh Singh and Others vs. Lala Phool Chand and Others, 1945 (32) AIR (Privy Council) 113, their Lordships have held that in construing a will the primary duty of a Court is to ascertain from the language of the testator what were his intentions’ and in doing so they are entitled and bound to bear in mind other matters than merely the words used. Their Lordships have further held that these intentions must be ascertained by the proper construction of the words he used and once ascertained must not be departed from. It is also justified in refusing to allow defects in expression in these matters to prevent the carrying out of the testator’s true intentions. 21. Division Bench of Punjab High Court in Smt. Kamla Devi vs. Kishori Lal Lablu Ram and Others, AIR 1962 Punjab 196 has held that main’s intention as to how he wants the disposition to be made of his property after his death, his declared intentions must be given effect to, unless forbidden by law. The primary function and duty of the Court, therefore, is to ascertain the intention of the testator as to the disposition of his property and to give effect to it, if it is in accordance with law. Division Bench has held as under:- “(24) The first duty of the Court is to take note of the setting in which the will was made by the testator. This is also known as the "arm-chair" rule. Division Bench has held as under:- “(24) The first duty of the Court is to take note of the setting in which the will was made by the testator. This is also known as the "arm-chair" rule. In other words so far as permitted by the evidence, the Court should place itself in the testator's armchair at the time he executed the will and find out how the testator regarded the affairs, and what feelings he had, in respect of the persons, he was benefiting or disinheriting. The Court has then to ascertain if the testator was in a position to understand the nature of the act and its effects the extent of the property which he was disposing of and whether, he was able to apprehend and appreciate the claims to which he had to give effect. The Court should be astute in ascertaining if any disorder of the mind had poisoned his affections perverted his sense of right, or prevented the exercise of his natural faculties. If the Court is satisfied that the will is genuine it is bound to give effect to it even if some of its provisions are extraordinary, unnatural, unreasonable, or iniquitous. In so far as the will is a legal declaration of a man's intention as to how he wants the disposition to be made of his property after his death, his declared intentions must be given effect to, unless forbidden by law. In this matter the primary function and duty of the Court, therefore, is to ascertain the intention of the testator as to the disposition of his property and to give effect to it, if it is in accordance with law. The Court has to interpret the will from the testator's point of view, and not to make a new one in conformity with its own notions of how the testator's property ought to be equitably distributed. The Court cannot superimpose its discretion, or its sense of what is equitable, as against the testator's true intention. In construing a will, the all-important consideration is ascertainment and effectuation of the testatorial intention so far as legally possible. Passions and prejudice, and even the obsessions, of the testator have to be taken account of. His prejudice against a near relative by itself is no ground for invalidating his will even if such a prejudice is ill-founded or unreasonable. In construing a will, the all-important consideration is ascertainment and effectuation of the testatorial intention so far as legally possible. Passions and prejudice, and even the obsessions, of the testator have to be taken account of. His prejudice against a near relative by itself is no ground for invalidating his will even if such a prejudice is ill-founded or unreasonable. The testator is at liberty to omit his relations for reasons that may be bad, and this will not deprive him of the testatorial power. It is, of course, different if the prejudice borders upon a delusion which would certainly undermine his testamenti factio. Because a testator has hatred for a particular relation, or suspects him of disloyalty or infidelity, he is not thereby deprived of mental capacity to make a will, and the law given him a right to make a will which, according to others, may be unjust unjudicious, or unreasonable. A testator is entitled to express his personal opinion, even though erroneous, that particular relatives have not treated him with affection or have not manifested gratitude towards him which, he thought, he deserved. A groundless prejudice of a testator against a relative will not be a good reason for setting aside his will unless it can be shown that the prejudice rests on some mental aberration. There may however, be cases where testator's antipathy towards a near relative may be so extravagant and so manifestly baseless as to amount to an affection of the mind, depriving him of his normal faculties and thus preventing him from knowing the natural objects of his bounty. 22. PW-3 Dile Ram is a marginal witness of will Ex. PW2/A. He also deposed that the will was scribed by PW-2 Deep Kumar and the contents of the will were read over and explained to deceased Bakshi Ram, who after admitting the same to be correct, had appended his signatures on the same. He identified his signatures on endorsement Ex. PW2/B. 23. The appellants have also moved an application bearing C.M.P. No. 12429 of 2013 under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure. It is specifically averred in the application that the revenue record after due inquiry was ordered to be corrected by recording the ownership and possession of Shri Surender Kumar, son of Shri Bakshi Ram vide order, dated 17.5.2002. It is specifically averred in the application that the revenue record after due inquiry was ordered to be corrected by recording the ownership and possession of Shri Surender Kumar, son of Shri Bakshi Ram vide order, dated 17.5.2002. An appeal was preferred by the plaintiff against the order, dated 17.5.2002. It is averred that four plots were not at all subject matter of the will made by Sh. Bakshi Ram on 13.7.1982. The appellants come to know about the order, dated 20.4.2010 when C.M.P. No. 444 of 2013 was filed by the appellants for cancellation of the sale deed. The order could not be produced by the appellants despite exercise of due diligence and there were good and sufficient grounds to permit the appellants to lead additional evidence. 24. The application was contested by the respondent/plaintiff. According to the averments made in the reply, the will, dated 5.6.1981 was revoked expressly by late Sh. Bakshi Ram by his subsequent and registered will, dated 13.7.1982. The proceedings, which have led to the passing of order, dated 17.5.2002 were held behind the back of the respondent/plaintiff. Neither notices were issued nor an opportunity was granted to rebut the claim of the appellants. An appeal was preferred against the order, dated 17.5.2002 before the learned Divisional Commissioner, Mandi bearing Case No. 87 of 2003. The Divisional Commissioner, Mandi accepted the appeal and remanded the matter back to the Settlement Officer. The Settlement Officer has exceeded his jurisdiction while deciding the matter in favour of the appellants. The collateral proceedings could not frustrate the decree passed by the Civil Court. The judgment and decree was passed by the learned first Appellate Court on 13.5.2002. The order was passed by the Settlement Officer on 17.5.2002. It was never brought on record. The order, dated 17.5.2002 was set aside by the Divisional Commissioner, Mandi in Case No. 87 of 2003 on 21.9.2005. It cannot be believed that the appellants were not aware of the orders, dated 17.5.2002 and 20.4.2010. The appellants have failed to prove that notwithstanding the exercise of due diligence, the orders were not within their knowledge. The purpose of Order 41 Rule 27 of the Code of Civil Procedure is not to fill up the lacunae. The findings given by the Civil Court are binding vis-a-vis the order passed by the Settlement Officer. The appellants have failed to prove that notwithstanding the exercise of due diligence, the orders were not within their knowledge. The purpose of Order 41 Rule 27 of the Code of Civil Procedure is not to fill up the lacunae. The findings given by the Civil Court are binding vis-a-vis the order passed by the Settlement Officer. The details of the property have rightly been given in the will, dated 13.7.1982 Ex. PW2/A. 25. Their Lordships of the Hon'ble Supreme Court in Union of India vs. Ibrahim Uddin and Another, (2012) 8 SCC 148 have held that Order 41 Rule 27 CPC does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. The appellate court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. The admissibility of the additional evidence depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The words for any other substantial cause must be read with the word requires in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a substantial cause within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. Their Lordships have further held that it is not the business of the appellate Court to supplement the evidence adduced by one party or the other in the lower court. Their Lordships have held as under:- “36. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. Their Lordships have further held that it is not the business of the appellate Court to supplement the evidence adduced by one party or the other in the lower court. Their Lordships have held as under:- “36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. Vide – K. Venkataramiah vs. A. Seetharama Reddy & Others, AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay vs. Lala Pancham & Others, AIR 1965 SC 1008 ; Soonda Ram & Another vs. Rameshwaralal & Another, AIR 1975 SC 479 and Syed Abdul Khader vs. Rami Reddy & Others, AIR 1979 SC 553 . 37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. Vide – Haji Mohammed Ishaq Wd. S.K. Mohammed & Others vs. Mohamed Iqbal and Mohamed Ali and Co. AIR 1978 SC 798 . 38. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. Vide – Haji Mohammed Ishaq Wd. S.K. Mohammed & Others vs. Mohamed Iqbal and Mohamed Ali and Co. AIR 1978 SC 798 . 38. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. Vide – Lala Pancham & Others (supra). 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. Vide – State of U.P. vs. Manbodhan Lal Srivastava, AIR 1957 SC 912 and S. Rajagopal vs. C.M. Armugam & Others, AIR 1969 SC 101 . 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a substantial cause within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal. 41. The words for any other substantial cause must be read with the word requires in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g. when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment. 49. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. Arjan Singh vs. Kartar Singh & Others, AIR 1951 SC 193 and Natha Singh & Others vs. Financial Commissioner, Taxation, Punjab & Others, AIR 1976 SC 1053 .” In view of the above discussion, the C.M.P. No. 12429 of 2013 is dismissed. 26. The learned trial Court has specifically framed the following issue:- “4-B Whether the suit is bad for non-joinder of necessary parties? OPD. However, the fact of the matter is that the learned counsel appearing on behalf of the defendants has not pressed this issue. Moreover, this issue was also not raised before the learned first appellate Court. 27. In Ex. PW2/A, there is no mention of residential house and other land. The defendant has claimed his ownership of the residential house and shop on the basis of the Will executed by Krishan Dutt. However, the will has not been placed on record. Moreover, this issue was also not raised before the learned first appellate Court. 27. In Ex. PW2/A, there is no mention of residential house and other land. The defendant has claimed his ownership of the residential house and shop on the basis of the Will executed by Krishan Dutt. However, the will has not been placed on record. It is reiterated that there is specific mention of the suit property bearing Khasra No. 298 old, new Khasra No. 401 in will Ex. PW2/A, executed in favour of the plaintiff and as regard the remaining suit property bearing Khasra No. 413, which is also Abadi. There is reference of residential house and the land apurtenant thereto which has been bequathed by Sh. Bakshi Ram in favour of the plaintiff, his grand children Krishan Lal and Manju. The trial Court was swayed by Ex. D-1, the judgment, dated 14.8.1990 rendered in Succession Petition No. 9 of 1988. However, the fact of the matter is that this judgment was set aside by this Court in F.A.O. No. 154 of 1990, dated 13.8.1998. Ex. A1, produced before the learned District Judge by way of additional evidence. The Division Bench has come to the conclusion that the will Ex. PW2/A was executed by deceased Bakshi Ram in sound disposing mind and the same was valid and genuine document. Thus, the will Ex. PW2/A, dated 13.7.1982 has attained finality. The learned first appellate Court has correctly appreciated the oral as well as documentary evidence. The substantial questions of law are answered accordingly. 28. Accordingly, there is no merit in this appeal and the same is dismissed. The miscellaneous applications, if any, also stands, disposed of. No costs.