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2015 DIGILAW 2575 (ALL)

Raj Vir Singh v. Malka

2015-08-24

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. This second appeal is directed against the judgment and decree passed by the lower appellate court, dated 30.5.2015 in Civil Appeal No.97 of 2014, arising out of Original Suit No.184 of 1999, whereby the plaintiff's suit for cancellation of will has been dismissed. 2. Facts giving rise to filing of the present appeal are that plaintiff instituted Original Suit No.184 of 1999 with the allegation that testator Mahipal Singh was the real elder brother of the plaintiff, who on account of his old age was not keeping in good physical health; that defendant no.1 Smt. Malka started living with deceased brother of the plaintiff after having come from elsewhere; that no will was actually executed in favour of defendant no.1 by Mahipal Singh; that Mahipal Singh brother of the plaintiff was murdered on 17.5.1990, whereafter the name of plaintiff was mutated over the land owned by his brother; but subsequently, upon an objection filed by the defendant no.1 in mutation proceedings, the order passed in favour of the plaintiff was stayed on 4.9.1990; that defendant no.1 is under influence and keeping of defendant no.2; that no will was executed in favour of the defendant no.1; that plaintiff is in possession of house and agricultural holding of Mahipal Singh after his death; that plaintiff subsequently came to know that a will has been procured by the defendant no.1 in collusion with defendant no.2, who, according to plaintiff, had taken his brother for medical advise to the city, but the will was instead got executed showing it to have been executed by the brother of plaintiff on 1.11.1988, which was also got registered; that in 1999, when the defendant refused to get the will cancelled, only then cause of action arose for filing of the suit. 3. Defendant no.1 contested the suit by stating that although she originally belonged to Bengal, but because of her poor condition, she agreed to marry deceased despite considerable age difference between them, and she continued to live as wife of the deceased till his murder. It was also stated that a daughter was also born out of such wedlock, named Minakshi, who is 14 years of age, which fact has been concealed. It was also stated that a daughter was also born out of such wedlock, named Minakshi, who is 14 years of age, which fact has been concealed. It was further stated that the plaintiff himself was annoyed by the fact that the land in question was not being given for the purposes of cultivation to the plaintiff, and the suit has been filed only in order to deprive the defendant of her right over the property of her deceased husband. Accusations made in suit regarding her association with defendant no.2 was emphatically denied. 4. Defendant no.2, who in the plaint was shown as husband of defendant no.1, also contested the suit by filing a written statement and denying the plaint allegations. 5. On the basis of pleadings of the parties, five issues were framed by the trial court, foremost being as to whether the plaintiff was entitled to cancellation of will on the basis of plaint allegations. Evidence was lead by the parties. Trial court proceeded to examine the claim of the parties, and it was found that though the will was registered, but none of the two attesting witnesses to the will had been produced. It was also noticed that one of the witnesses to the will had died, whereas the other surviving witness was not produced before the court. Trial court therefore found that will was not proved in accordance with the requirement of law, as contained under Section 68 of the Evidence Act. Trial court further held that although the knowledge with regard execution of will had not been specifically asserted in the plaint, but the cause of action had been clearly described as emanating from the denial by the defendant no.1 to get the will cancelled, and therefore, with such findings, the suit was decreed. Aggrieved by it, defendant no.1 filed Civil Appeal No.97 of 2014. 6. Appellate court examined the respective case of the parties, and also the evidence brought on record. Appellate court took note of the statement given by the plaintiff himself in the sessions trial, which ensued consequent upon the murder of plaintiff's brother, on 30th August, 1993. Aggrieved by it, defendant no.1 filed Civil Appeal No.97 of 2014. 6. Appellate court examined the respective case of the parties, and also the evidence brought on record. Appellate court took note of the statement given by the plaintiff himself in the sessions trial, which ensued consequent upon the murder of plaintiff's brother, on 30th August, 1993. Appellate court took note of the fact that plaintiff has categorically stated in para 4 of his statement made on oath in the sessions trial that deceased brother of the plaintiff had married a Bengali Lady in the name of Malka, in whose favour, the brother of the plaintiff had also executed a will, and he has learnt that a daughter was also born out of such wedlock. From the statement so made, which was on record before the court below, the appellate court drew an inference that the plaintiff had knowledge of the execution of will, prior to 30th August, 1993. The appellate court in the context of such evidence came to a conclusion that the plaintiff since had knowledge about execution of the will by the brother of the plaintiff in favour of defendant no.1, prior to August, 1993, and no suit for cancellation was filed within the period of three years, therefore, the suit in view of the provisions of the Limitation Act itself was barred by limitation in 1999. Appellate court also took note of the fact that it was in 1990 itself that dispute with regard to land had arisen, once the mutation proceedings had been initiated, and the entries in the name of plaintiff were stayed in 1990 itself upon objection of defendant no.1. The lower appellate court reversed the finding of the trial court that defendant no.1 was not the legally wedded wife of the deceased Mahipal Singh, in view of the categorical admission made by the plaintiff himself that his deceased brother had married defendant no.1. Lower appellate court relying upon the admission of the plaintiff set aside the findings recorded by the trial court on the aspect relating to marriage of deceased with defendant no.1, as well as with regard to knowledge accruing to the plaintiff only in 1999. Lower appellate court relying upon the admission of the plaintiff set aside the findings recorded by the trial court on the aspect relating to marriage of deceased with defendant no.1, as well as with regard to knowledge accruing to the plaintiff only in 1999. It was stated that right from 1990, parties were at issue with regard to succession of the land consequent upon the murder of deceased, and order passed in favour of the plaintiff had already been stayed upon an objection of the defendant no.1. The lower appellate court found that plaintiff has not approached the court with clean hands, and the case set up by him was not worthy of reliance. The lower appellate court found that in view of admission so made by the plaintiff, suit itself was barred by limitation. Consequently, the appeal has been allowed. The judgment and decree of the trial court has been set aside and the plaintiff's suit has been dismissed. Thus aggrieved, the plaintiff has filed the present appeal under Section 100 CPC. 7. Learned counsel for the appellant submits that judgment and decree of the lower appellate court is legally erroneous and unsustainable, inasmuch as there was no plea raised in the written statement with regard to limitation nor any issue was framed in this regard, and the lower appellate court was not justified in returning a finding that the suit itself was barred by limitation. Learned counsel further submits that will had not been produced before either of the courts below, and the same was also not proved by adducing one of the marginal witnesses, who was still alive. Learned counsel for the appellant has placed reliance upon the decision of the Apex Court in the case of Narne Rama Murthy Vs. Ravula Somasundaram and others [ (2005) 6 SCC 614 : 2005 (2) ARC 654], as well as the decision of the Apex Court in the case of Food Corporation of India and others Vs. Babulal Agrawal [ (2004) 2 SCC 712 : 2004 (3) ARC 97] in order to contend that judgment of lower appellate court is liable to be set aside on the substantial questions so framed in memo of appeal. 8. Babulal Agrawal [ (2004) 2 SCC 712 : 2004 (3) ARC 97] in order to contend that judgment of lower appellate court is liable to be set aside on the substantial questions so framed in memo of appeal. 8. Learned counsel for the defendant no.1 contends that so far as the producing of original will is concerned, it was brought on record and was rightly taken note by the lower appellate court that the original will had already been filed in consolidation proceedings, and was still a part of the record therein. Since the original will has already been filed in the consolidation proceedings, which are pending, a certified copy of the will has been brought on record. Since execution of the will by the brother of the deceased was admitted to the plaintiff, as has been rightly noticed by the lower appellate court, there was no further requirement of proving the will, as admission of the plaintiff clearly stairs against him. It is further stated that it was more than admitted on record that plaintiff had knowledge of execution of will in 1993, and the limitation under the provisions of the Limitation Act for filing a suit for its cancellation was three years, and the filing of suit in 1999 was barred by limitation. 9. I have heard learned counsel for the parties, and have perused the materials available on record. 10. While hearing the parties on 19th August, 2015, this Court proceeded to pass following order: - "The reversal of the decree passed by the trial court in appeal is essentially based upon the admission of the plaintiff that the defendant was the wife of his brother and that a will had been executed by his brother. This admission is said to have been made on 30th August, 1993. Relying upon the such admission, lower appellate court has held that suit itself was barred by limitation. Learned counsel for the appellant submits that he may allowed an opportunity to produce his alleged admission contained in the statement dated 30th August, 1993 in order to show perversity in the findings so recorded by the lower appellate court. In view of the prayer so made, learned counsel for the petitioner is permitted to bring on record the copy of the statement dated 30th August, 1993 along with a supplementary affidavit. Put up as fresh on 24th August, 2015." 11. In view of the prayer so made, learned counsel for the petitioner is permitted to bring on record the copy of the statement dated 30th August, 1993 along with a supplementary affidavit. Put up as fresh on 24th August, 2015." 11. Today, when the matter has been taken up, learned counsel for the plaintiff appellant has filed a supplementary affidavit annexing the statement made by the plaintiff in sessions trial, which had ensued consequent upon the murder of the deceased brother, who had executed the will. It would be appropriate to reproduce para nos.4 and 10 of the plaintiff's statement before the court below: - " 4- igys njksxk th us esjk dksbZ c;ku ugha fy;k ckn okyksa us fy;k Fkk EkSus mUgsa iwjh ?kVuk crk nh vkSj rFkk ;g crk fn;k Fkk fd esjs HkkbZ eydk uke dh caxkyu ls 'kknh Fkh vkSj ml vkSjr ds uke esjs HkkbZ us olh;r Hkh dj nh Fkh tks esjs lkeus ugha djh Fkh eq>s yksxksa ls irk pyk Fkk esjs e`rd HkkbZ ls ,d yMdh Hkh iSnk gqbZ FkhA 10& ;g fd eq>s HkkbZ }kjk olh;r djus dk irk tc pyk tc nkf[ky [kfjt dk eqdnek pyk ;g ckr eSus njksxk th dks vius c;ku esa crk nh Fkh vkSj ;fn njksxk th us esjs c;ku esa ;g ckr ugha fy[kh rks dksbZ otg ugha crk ldrkA " 12. Learned counsel for the appellant has not disputed the fact that this statement was on record before the lower appellate court. This court finds that there is no explanation worth consideration forthcoming at the instance of the plaintiff appellant to explain the admission so made by him in sessions trial. It is, therefore, admitted to the plaintiff that his deceased brother had married defendant no.1, and had also executed a will in her favour, though not in his presence. Plaintiff appellant also admitted of having learnt that a daughter was born out of said wedlock. Despite such admission made by the plaintiff in 1993 itself, when he proceeds to file the suit in the year 1999, he only states in para 5 of the plaint that defendant no.1 Malka Bengalan had come from outside and started living with his deceased brother, who was about 77 years of age. Plaintiff has not disclosed at all about his knowledge of the marriage that took between his deceased brother and defendant no.1. Plaintiff has not disclosed at all about his knowledge of the marriage that took between his deceased brother and defendant no.1. The suit is also silent about birth of a daughter out of wedlock of his brother with defendant no.1. The finding returned by the lower appellate court that plaintiff has not approached the court with clean hand, is clearly apparent on the face of records. 13. This Court further finds that consequent upon the murder of deceased in 1990, mutation was applied by the plaintiff, which was originally granted, whereafter it was objected to by the defendant, and the orders of mutation passed in favour of plaintiff were stayed in 1990 itself. The lower appellate court has taken note of the fact that dispute with regard to inheritance had continued before the consolidation court, where the original will had already been filed. The dispute in mutation, therefore, had commenced in 1990 itself. Once the dispute with regard to mutation had arisen, and the will had already been filed in consolidation proceedings, and the factum of such execution of will had been admitted to the plaintiff by virtue of his statement made in sessions trial in 1993, it was more than obvious that the factum of execution of will was within the knowledge of plaintiff, prior to 1993. The claim set up by plaintiff, therefore, in the plaint that he came to know about will only later has rightly been disbelieved by the lower appellate court. In fact, a perusal of the plaint goes to show that plaintiff has not stated as to when he gained knowledge of execution of will. The finding returned by the lower appellate court that plaintiff was aware about the will and was litigating in respect thereof from much prior in point of time, so as to make the suit itself barred by limitation in 1999 is clearly apparent on the face of record. The admission of the plaintiff categorically stairs against him. 14. So far as the submissions advanced by learned counsel for the appellant that no issue of limitation was raised or framed before the courts below, and therefore, such a plea was not open to be taken by lower appellate court cannot be sustained. Limitation is a question of jurisdiction. The admission of the plaintiff categorically stairs against him. 14. So far as the submissions advanced by learned counsel for the appellant that no issue of limitation was raised or framed before the courts below, and therefore, such a plea was not open to be taken by lower appellate court cannot be sustained. Limitation is a question of jurisdiction. Once, the lower appellate court on the basis of materials on record found that the plaintiff had knowledge of the execution of will prior to 1993, which admission had not been explained, there was no issue left for determination regarding factum of plaintiff having knowledge of the will prior to 1993. Once that was so, there could be no infirmity found in the judgment of the lower appellate court, merely because specific issue had not been framed. The judgments, which have been relied upon by the learned counsel for the appellant, do not help his cause. In Food Corporation of India and others (supra), on facts no issue of limitation was raised upto High Court or even before the Apex Court, and only in the list of dates and events a vague plea was set up, and in that context, it was observed that such a plea of limitation was not available. In Narne Rama Murthy (supra), it was observed that limitation can be a question of law or a mixed question of law and fact, and if suit does not appear to be barred by limitation on the face of it, then it has to be specifically pleaded. In the facts of the present case, in view of the plaintiff's own admission, the suit was barred by limitation, and its absence in pleading would not be material. 15. In the present case, the admission made by the appellant, which has not been explained, renders the question of limitation, a pure question of law. In such circumstances, the lower appellate court was justified in coming to a conclusion that the suit filed in 1999 for cancellation of will executed in 1988 was barred by limitation. This Court finds substance in the view taken by the lower appellate court that the plaintiff has not approached the court with clean hands. In such circumstances, the lower appellate court was justified in coming to a conclusion that the suit filed in 1999 for cancellation of will executed in 1988 was barred by limitation. This Court finds substance in the view taken by the lower appellate court that the plaintiff has not approached the court with clean hands. The dismissal of suit by the lower appellate court, therefore, calls for no interference in the present appeal, which is concluded by the findings of the fact, and requires no interference under Section 100 of the Code of Civil Procedure, 1908. No substantial question of law arises for consideration in the present appeal. 16. In view of the observations made above, the second appeal fails, and is dismissed in limine.