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2015 DIGILAW 1375 (HP)

Parma Nand v. Mathi

2015-09-29

RAJIV SHARMA

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JUDGMENT RAJIV SHARMA, J. 1. This Regular Second Appeal has been instituted against judgment and decree dated 20.9.2004 rendered by learned District Judge, Solan, District Solan, Himachal Pradesh in Civil Appeal No. 43-S/13 of 2004. 2. Key facts necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as plaintiff for convenience sake) instituted a suit against the respondents-defendants (hereinafter referred to as defendants for convenience sake) for declaration with further relief of permanent prohibitory injunction. Plaintiff filed suit for declaration that Deoli widow of Moti Ram was co-sharer to the extent of 1/6th share in the land entered against Khata No. 6 Khatauni Nos. 8 to 11 measuring 20 Bigha and 18 Biswas, and to the extent of 1/12 share in the land entered against Khata No. 8 Khatauni Nos. 13 to 20 measuring 37 Bigha 13 Biswa as per Jamabandi for the year 1982-83 pertaining to Village Jekhri and to the extent of 40/238 share of land entered in Khata No. 11 Khatauni No. 12 measuring 1 Bigha 7 Biswas in the Jamabandi for the year 1986-87 pertaining to village Dhandho, Pargana Bagi, Tehsil Kandaghat, District Solan, Himachal Pradesh. She made will in respect of aforesaid three properties in favour of the plaintiff on 4.10.1963 vide Ext. DW-1/A. Revenue entries showing defendant No. 1 Smt. Mathi as owner are made illegally and wrongly so also the sale in favour of defendants No. 2 to 4. Late Smt. Deoli and Mathi were widows of Late Moti Ram. On his death, both of them inherited the estate of Moti Ram including his 1/3rd share in Khata No. 6 Khatauni No. 8/11, 1/6th share in the land entered against Khata No. 8 Khatauni Nos. 13 to 20, entered in the Jamabandi for the year 1982-83 pertaining to village Jekhri and 40/238 share in the land comprised in Khata No. 11, Khatauni No. 12 entered in Jamabandi for the year 1986-87 pertaining to village Dhandho, Pargana Bagi, Tehsil Kandaghat, District Solan, Himachal Pradesh. Plaintiff had been visiting her. She made a will in favour of the plaintiff. Deoli died. He became owner of the suit land including suit property. Mathi did not file any written statement. Written statement was filed by defendants No. 2 to 4 though signed by defendant No. 2 only. Allegations made in the plaint were denied. Plaintiff had been visiting her. She made a will in favour of the plaintiff. Deoli died. He became owner of the suit land including suit property. Mathi did not file any written statement. Written statement was filed by defendants No. 2 to 4 though signed by defendant No. 2 only. Allegations made in the plaint were denied. They were in joint possession of the land to the extent of share sold to them by Smt. Mathi. Issues were framed by the learned Civil Judge (Junior Division). He decreed the suit on 30.4.2004. Defendants namely Ishwar Dutt, Mohan Dutt and Suneel Dutt filed an appeal against the judgment and decree dated 30.4.2004 before learned District Judge, Solan. He allowed the same vide judgment and decree dated 20.9.2004. Hence, this Appeal. 3. The Regular Second Appeal was admitted on 27.12.2004 on the following substantial questions of law:- “1. Whether the judgment and decree of the District Judge reversing the judgment and decree of trial Court is perverse, based on misreading of oral and documentary evidence more particularly the will Ext. DW-1/A and the sale deed Ext.PW-2/A which has vitiated the findings. 2. Whether the findings of the District Judge that the suit was not within limitation and the plaintiff had not inherited the property of Deoli under a registered will Ext. DW-2/A are based on misconstruction of the pleadings of the parties and will Ext. DW-1/A. 3. Whether on a proper construction of will Ext. DW- 1/A, the plaintiff was entitled to succeed to the suit property even under the residuary clause and the provisions of Indian Succession Act having been construed?” 4. Mr. K.D. Sood, learned Senior Advocate, on the basis of substantial questions of law framed has vehemently argued that the first appellate Court has misread Ext. DW-1/A and sale deed Ext PW-2/A. He also contended that suit was filed within limitation. Plaintiff was entitled to succeed to the suit land even under residuary clause. 5. Mr. G.D. Verma, learned Senior Advocate has supported the judgment and decree passed by the learned first appellate Court. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. Since all the substantial questions of law are interlinked, they are being taken up together to avoid repetition of discussion of evidence. 8. PW-1 Ram Swaroop is marginal witness to will Ext. 6. I have heard the learned counsel for the parties and also gone through the record carefully. 7. Since all the substantial questions of law are interlinked, they are being taken up together to avoid repetition of discussion of evidence. 8. PW-1 Ram Swaroop is marginal witness to will Ext. DW-1/A. According to him, Deoli was in service of Tikka Jagjeet Singh. He used to visit the house of Tikka Jagjeet Singh. will was got executed by Deoli from a document writer. He put his signatures after ascertaining its correctness. Contents were read over to her by the Scribe. Deoli has put her thumb impression upon the will in his presence. 9. PW-2 Parma Nand deposed that Deoli used to visit him at village Jhekri. Mutation was entered and attested on the basis of will Ext. DW-1/A at village Niun whereas property was not mutated in the name of defendant No. 1 Mathi Devi. He came to know about entries of the revenue record when defendant No. 1 tried to sell the land. 10. Defendant No. 2 deposed that the will in question was not a valid document. There was no mention of property at village Jhekri. Mutation was attested on 23.8.1985 in favour of defendant No. 1 and no appeal was filed by the plaintiff against these entries. 11. Plaintiff has proved will Ext. DW-1/A. Mathi Devi has not stepped into the witness box. 12. Will is dated 4.10.1963. It was registered on 7.10.1963 by the Sub Registrar. Mutation was attested in favour of Mathi Devi vide order dated 23.8.1985. However, the suit was filed on 12.5.1998. It was filed beyond the period of limitation. The limitation has begun to run from 23.8.1985. Mutations were made in favour of Mathi Devi vide Ext. PW-2/B and Ext. PW-2/C. Claim of the plaintiff was rejected that he inherited the same on the basis of the will. 13. Mr. G.D. Verma, learned Senior Advocate has drawn the attention of the Court to will Ext. DW-1/A. It is mentioned in the will that the property situate at Village Niun was bequeathed in favour of the plaintiff but there was no reference to village Jhekri and Dhandho in the will Ext. DW-1/A. In case, she wanted to bequeath the property situate at village Jhekri and Dhandho, there should have been specific mention of the same in the will. DW-1/A. In case, she wanted to bequeath the property situate at village Jhekri and Dhandho, there should have been specific mention of the same in the will. Mutation was attested in favour of Mathi Devi on 23.8.1985. Plaintiff has filed suit as noticed above only on 12.5.1998. It can not be believed that the plaintiff was not aware of the mutation dated 23.8.1985 since he has objected to Ext. PW-2/B and Ext. PW-2/C. First appellate Court has correctly appreciated Ext. DW-1/A as well as Ext PW- 2/A. Suit was filed beyond limitation. Plaintiff was only entitled to succeed to the property mentioned of village Niun. The substantial questions of law are answered accordingly. 14. Consequently, there is no merit in the appeal and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.