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Himachal Pradesh High Court · body

2016 DIGILAW 2759 (HP)

Jamuna Devi v. Arjun

2016-12-29

AJAY MOHAN GOEL

body2016
JUDGMENT : AJAY MOHAN GOEL, J. 1. By way of this appeal, the appellant/plaintiff has challenged the judgment and decree passed by the Court of learned District Judge, Chamba, in Civil Appeal No. 40/04, dated 26.11.2007, vide which, learned Appellate Court, while dismissing the appeal so filed by present appellant upheld the judgment and decree passed by the Court of learned Civil Judge (Jr. Divn.), Chamba, District Chamba, in Civil Suit No. 97/2001, dated 26.02.2004. 2. Brief facts necessary for the adjudication of this case are that appellant/plaintiff (hereinafter referred to as “plaintiff”) filed a suit for declaration to the effect that mutation No. 717, dated 31.07.1996 and subsequent revenue entries entered on the basis of aforesaid mutation regarding property comprised in Khasra Nos. 442, 443, measuring 0-2-14 bighas, Khata Khatauni No. 136 min/173, 174, situated in Mohal Bharmour, Pargana and Tehsil Bharmour, District Chamba, H.P. (hereinafter referred to as “suit land”) were illegal, null and void and inoperative upon the rights of the plaintiff and also suit for restraining the respondents/defendants (hereinafter referred to as defendants) from interfering, dismantling or changing the nature of the suit land. As per plaintiff, actual owner of the suit land was Nanak Chand, father-in-law of the plaintiff, who had executed a Will in favour of plaintiff on 08.05.1991. After the death of Nanak Chand, defendants No. 1 and 2 got suit property mutated in their favour vide mutation No. 717, dated 31.07.1996 in collusion with revenue staff. Factum of these revenue entries in the revenue record came to her notice in the month of January 2001 when defendants started interfering in her peaceful possession over the suit land. It was further her case that mutation No. 717 and subsequent entries in the revenue record were wrong and illegal and not binding upon the rights of the plaintiff and on these bases, she prayed for the reliefs already mentioned above. 3. The claim of the plaintiff was contested by defendant No. 1 Arjun, who took the stand in the written statement that Nanak Chand was a co-sharer in Khasra Nos. 442 and 443 and he had not executed any Will qua Khasra Nos. 442 and 443 and Will, if any, was procured by Ranjha Ram (defendant No. 2), husband of the plaintiff for the benefit of his wife. 442 and 443 and he had not executed any Will qua Khasra Nos. 442 and 443 and Will, if any, was procured by Ranjha Ram (defendant No. 2), husband of the plaintiff for the benefit of his wife. It was further mentioned in the written statement defendant No. 2 had also procured another Will in favour of his son Manoj Kumar and Manoj Kumar had also filed a similar suit against defendant No. 1. It was further the stand of defendant No. 1 that suit property was rightly mutated in favour of defendant No. 1 and that too at the instance of defendant No. 2 and there was no collusion with the revenue staff as alleged. On these bases, claim of the plaintiff was contested by defendant No. 1. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues:- “1.Whether deceased Nanak Chand had executed a valid Will in favour of the plaintiff as alleged? OPP. 2. Whether revenue entries showing defendants the owners of the suit land are illegal, null and void as alleged? OPP. 3. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction as alleged? OPP 4. Whether the plaint is bad for non joinder of necessary parties? OPD 5. Whether the plaintiff has filed the suit in collusion with defendant No. 2 as alleged? OPD 6. Relief.” 5. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective claims, the issues so framed were answered by the learned trial Court in the following manner:- “Issue No.1 : No. Issue No. 2 : No. Issue No. 3 : No. Issue No. 4 : Yes. Issue No. 5 : No. Relief : The suit of the plaintiff dismissed as per operative part of the Judgment.” 6. Learned trial Court dismissed the suit so filed by the plaintiff by holding that there was no evidence on record to prove that Nanak Chand had purchased the suit land from Chatro and that Nanak Chand in fact was not owner of the suit land. On these bases, it was further held by the learned trial Court that when the suit land was not in the name of Nanak Chand, he could not have had bequeathed the suit land by way of Will Ext. On these bases, it was further held by the learned trial Court that when the suit land was not in the name of Nanak Chand, he could not have had bequeathed the suit land by way of Will Ext. PW2/A. While arriving at the said conclusion, learned trial Court held that plaintiff had failed to furnish any jamabandi on record from which it could be demonstrated that Nanak Chand was owner of the suit land and in the absence of entry in the name of Nanak Chand as owner in the jamabandi, it could not be barely presumed that Nanak Chand was owner of the suit land before the execution of the Will. On these bases, it was held by the learned trial Court that Will Ext. PW2/A was not a valid Will as plaintiff had failed to establish that Nanak Chand was owner of the suit land which was bequeathed by way of said Will. 7. Feeling aggrieved by the dismissal of her suit, plaintiff filed an appeal. 8. Learned Appellate Court while dismissing the appeal so filed by the plaintiff returned the findings that though appellant claimed herself to be beneficiary of the Will Ext. PW2/A but she had not claimed in her suit that she had rendered services to her father-in-law during his lifetime. Learned Appellate Court went on to hold that it was settled law that where there was disinheritance of heirs of equal degree and no reason for exclusion was disclosed, then the Will was shrouded with suspicion. Learned Appellate Court further held that scrutiny of the Will Ext. PW2/A demonstrated that there was nothing on record which could show as to why Nanak Chand excluded his wife and sons and why he opted to bequeath his property in favour of his daughter-in-law especially when there was no mention of plaintiff serving him at any point of time nor the plaintiff had claimed having served her father-in-law during his lifetime. On these bases, it was held by the learned Appellate Court that Will in fact was shrouded with suspicious circumstances and therefore, it could be safely concluded that Shri Nanak Chand had not executed any valid Will in favour of plaintiff. 9. Feeling aggrieved, the plaintiff has filed this appeal which was admitted on 20.11.2008 on the following substantial questions of law: “1. 9. Feeling aggrieved, the plaintiff has filed this appeal which was admitted on 20.11.2008 on the following substantial questions of law: “1. Whether exclusion of the sons and wife from the duly executed Will that too for part of the property in favour of daughter in law can be said to be a suspicious circumstance particularly when the testator has not bequeathed the entire property. 2. Whether presumption of genuineness can be attached to a duly executed registered Will?” 10. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments and decrees passed by both the learned Courts below. 11. A perusal of the judgment passed by the learned trial Court demonstrates that the plaintiff was non-suited by the learned trial Court on the ground that plaintiff had failed to establish that the suit land in fact was owned by the testator of the Will i.e. Shri Nanak Chand. On these bases, it was held by the learned trial Court that when Nanak Chand was not proved to be the owner of the suit land, he could not have had bequeathed the suit property by way of a Will in favour of his daughter-in-law. 12. Findings so returned by the learned trial Court were assailed by way of appeal by the appellant/plaintiff before the first Appellate Court. 13. However, learned Appellate Court rather than adjudicating as to whether the findings returned by the learned trial Court to the effect that Nanak Chand was not proved to be the owner of the suit land on record, ventured to adjudicate on the veracity of the Will on the point as to whether the plaintiff had proved the execution of Will in accordance with law or whether defendant had succeeded in proving that Will was shrouded with suspicious circumstances. 14. In my considered view, learned Appellate Court in the peculiar facts and circumstances of this case erred in doing so. This is for the reason that as learned trial Court had returned the findings that Nanak Chand was not the owner of the suit land which was bequeathed by him by way of Will Ext. 14. In my considered view, learned Appellate Court in the peculiar facts and circumstances of this case erred in doing so. This is for the reason that as learned trial Court had returned the findings that Nanak Chand was not the owner of the suit land which was bequeathed by him by way of Will Ext. PW2/A in favour of plaintiff, therefore, until and unless learned Appellate Court had returned findings on this issue as to whether Nanak Chand was owner of the suit land or not, it could not have had ventured to adjudicate upon the issue as to whether Will Ext. PW2/A was shrouded with suspicious circumstances or not. In this view of the matter, in my considered view, this appeal deserves to be allowed on this short point alone and the matter deserves to be remanded back to the learned Appellate Court with a direction to adjudicate the appeal afresh after taking into consideration the findings returned by the learned trial Court as well as the grounds taken in the appeal by the appellant/plaintiff before the first Appellate Court to challenge the findings so returned by the learned trial Court. 15. Accordingly, this appeal is allowed and judgment and decree passed by the learned Appellate Court in Civil Appeal No. 40/04, dated 25.11.2007, is set aside and the case is remanded back to the learned Appellate Court for adjudication afresh after taking into consideration the findings returned by the learned trial Court while dismissing the suit of the plaintiff and the grounds taken in appeal by plaintiff before the learned Appellate Court in challenge to the judgment and decree so passed by the learned trial Court. Parties through their counsel are directed to appear before the learned Appellate Court on 09.01.2017. Keeping in view the fact that the civil suit pertains to the year 2001, this Court hopes and trusts that learned Appellate Court shall decide this case, as expeditiously as possible, preferably within a period of six months from today. No orders as to costs. Pending miscellaneous application (s), if any, also stands disposed of.