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2017 DIGILAW 1206 (HP)

Kuldip Singh v. Bali Ram

2017-10-30

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. - By way of the present Appeal, the appellant has challenged the judgment passed by the learned District Judge, Bilaspur, District Bilaspur, H.P. in Civil Appeal No. 101 of 2004, dated 12.07.2006, vide which the learned lower Appellate Court has set aside the judgment and decree passed by the then learned Civil Judge (Senior Division), Bilaspur, District Bilaspur, H.P. in Civil Suit No. 85/1 of 2000, dated 10.11.2004. 2. Material facts necessary for adjudication of this Regular Second Appeal are that appellant/plaintiff (hereinafter referred to as ''plaintiff'') maintained a suit against the respondents/defendants (hereinafter referred to as ''defendants'') seeking declaration to the effect that the plaintiff is joint owner-in-possession alongwith defendant No. 5/proforma defendant No. 5 Sukh Ram (hereinafter referred to as ''proforma defendant No. 5'') to the extent of half share with the defendants of the suit land being the Joint Hindu Family Property and for restraining the defendants from interfering with the half share of the plaintiff and proforma defendant No. 5. The plaintiff has alleged that the entries in the name of deceased Dhanni Devi qua the suit land are null and void and the plaintiff and proforma defendant No. 5 are owners-in-possession to the extent of half share of the suit land. The plaintiff has further alleged that the suit land is Joint Hindu Family Property except few land, which has been given to defendant No. 1 and proforma defendant No. 5 by way of gift by Smt. Nardu. The grand father of the plaintiff, i.e. Shri Sunder is stated to have enjoyed the suit property belonging to H.U.F. The plaintiff has also alleged that he and defendants, being male Hindu members of H.U.F., have got right in the suit property by way of their birth. Dhanni Devi, being female, is stated to have no right, title or interest in the property left by deceased Sunder. She never remained in possession of any land during her life time. Mutation No. 57 is stated to be a mere paper entry and the plaintiff is not bound by such mutation. Dhanni Devi, the grand mother of the plaintiff and the mother of defendant No. 1 and proforma defendant No. 5, is alleged to have died on 19.04.2000 and her last rites were performed by the plaintiff and she was maintained out of the income of the H.U.F. property. Dhanni Devi, the grand mother of the plaintiff and the mother of defendant No. 1 and proforma defendant No. 5, is alleged to have died on 19.04.2000 and her last rites were performed by the plaintiff and she was maintained out of the income of the H.U.F. property. The plaintiff has further alleged that defendants No. 2 to 4 are claiming themselves to be the sole legal heirs of deceased Dhanni Devi and have wrongly got attested mutation No. 57 in their favour and are causing interference and they have no right to interfere with the suit land, owned and possessed by the plaintiff and proforma defendant No. 5. The plaintiff has also alleged that at the time of filing the suit, proforma defendant No. 5 was not available and in case he supports the defendants, then the plaintiff has also prayed for decree against him. 3. Defendants No. 1 to 4 resisted and contested the suit by filing written statement, in which it was denied that the plaintiff and proforma defendant No. 5 have half share in the suit land. The defendants have averred that the entire suit land was owned and possessed by Sunder, the grand father of the plaintiff and father of defendant No. 1 & proforma defendant No. 5. Said Sunder Singh died in the year 1993 and his entire moveable and immovable property was inherited by Dhanni Devi being his widow and defendant No. 1 and proforma defendant No. 5, i.e. Bali Ram and Sukh Ram, being his sons. Mutation No. 57 dated 02.02.1994 to that effect was stated to be sanctioned in the presence of Bali Ram and Sukh Ram. The defendants have averred that Dhanni Devi had inherited this property from her husband. All mourning ceremonies were stated to be performed by defendant No. 1 Bali Ram, with whom she was residing. The defendants have also averred that defendants No. 2 to 4 have inherited the property of Dhanni Devi in accordance with a Will, which was executed by her in their favour vide registered Will dated 24.08.1983. 4. The plaintiff filed replication, in which the averments contained in the plaint were reaffirmed and re-asserted and the allegations contained in the written statement were denied. 5. On the pleadings of the parties, the learned trial Court framed the following issues on 01.04.2004: "1. 4. The plaintiff filed replication, in which the averments contained in the plaint were reaffirmed and re-asserted and the allegations contained in the written statement were denied. 5. On the pleadings of the parties, the learned trial Court framed the following issues on 01.04.2004: "1. Whether the plaintiff and proforma defendant are co-owners in possession to the extent of half share in the suit land with the defendants, as alleged? ...OPP 2. If issue No. 2 is proved in affirmative, whether the plaintiff is entitled to the relief of injunction, as prayed for? ...OPP 3. Whether the plaintiff is entitled to the relief of mandatory injunction in the alternative? If so, to what extent and in what manner?...OPP 4. Whether the suit is not maintainable in the present form, as alleged? OPD 5. Whether the plaintiff has no cause of action to file the present suit, as alleged? ....OPD 6. Whether the act and conduct of the plaintiff are bar to the present suit? OPD 7. Whether the property in suit is not Joint Hindu Family Property? If so, its effect? ....OPD 7-A Whether Dhanni Devi executed a valid Will dated 24.08.1993 in favour of defendants? ....OPD 8. Relief." 6. The learned trial Court after deciding Issues No. 1 & 2 in favour of the plaintiff, issue No. 3 against the plaintiff and issues No. 4 to 7-A against the defendants, decreed the suit to the effect that the plaintiff and proforma defendant No. 5 are owners-in-possession of the suit land to the extent of half share and the entries in the revenue record to the contrary are wrong, illegal and void. The defendants were further restrained from interfering with the half share of the plaintiff over the suit land in any manner. 7. Feeling aggrieved by the judgment passed by the learned trial Court, defendants No. 1 to 4 maintained first Appeal before the learned District Judge, Bilaspur, assailing the findings of the learned trial Court below being against the law and without appreciating the evidence and pleadings of the parties to its true perspective. The learned lower Appellate Court set aside the findings returned by the learned trial Court below. The learned lower Appellate Court set aside the findings returned by the learned trial Court below. Now, the appellant has maintained the present Regular Second Appeal, which was admitted for hearing on 21.12.2006 on the following substantial question of law: "Whether the first appellate Court has not appreciated the evidence correctly and in the right perspective while setting aside the finding of the trial Court that the Will set up by the respondents/defendants is not genuine." 8. Mr. Ajay Kumar, learned Senior Counsel appearing on behalf of the appellant/plaintiff has argued that learned lower Appellate Court has passed the judgment without appreciating the evidence on record. He has further argued that the son-in-law of the propounder was a witness to the Will and it was a suspicious circumstance. He has relied upon the judgment passed by the Hon''ble Supreme Court in case titled as S.R. Srinivasa and others vs. S. Padmavathamma, reported in (2010) 5 SCC 274 and the judgment passed by this Court in case titled as Gian Chand & others vs. Smt. Shiv Dei & another, reported in (2014) (2) Shimla Law Cases, 667 . He has further argued that registration of the Will is not proof of its due execution. He has prayed that as the Will has not been proved, the judgment passed by the learned lower Appellate Court is liable to be set aside and that of the learned trial Court is required to be restored. 9. Ms. Ruma Kaushik, learned Counsel appearing on behalf of respondents/defendants No. 1 to 4 argued that the Will was a genuine document and the case of the plaintiff was only that Dhanni Devi could not bequeath her property as she has no right in the property as it was coparcenary property and Dhani Devi being female could not acquire any right in the property. She has further argued that the Will is proved beyond suspicion and prayed that the Appeal be dismissed. 10. In rebuttal, learned Counsel appearing on behalf of the appellant has argued that the Will is full of suspicion. 11. To appreciate the arguments of the learned Counsel appearing on behalf of the parties, I have gone through the record in detail. 12. 10. In rebuttal, learned Counsel appearing on behalf of the appellant has argued that the Will is full of suspicion. 11. To appreciate the arguments of the learned Counsel appearing on behalf of the parties, I have gone through the record in detail. 12. At the very outset, it is seen that initially the case of the appellant-plaintiff was that Dhanni Devi could not inherit the property, as the same was coparcenery property and it was only the male member, who could have share in the said property. As Dhanni Devi was not having any share in the property, she could not have executed a Will. Thereafter, the case of the plaintiff was that even if a Will is executed, the same is suspicious and has not been proved in accordance with law and in that case also, the property will go to all the legal heirs of Dhanni Devi. 13. The defendants have also placed on record Ext. D-1, copy of mutation No. 37, dated 01.10.1964, vide which the ownership rights were conferred upon Sunder. Ext. D-2 is the copy of mutation No. 32, vide which the mutation was sanctioned and attested in favour of Sunder on 23.05.1964, being the purchaser of the land. Ext. D-3 is the copy of mutation No. 48, which was attested and sanctioned on 13.06.1975, vide which the property rights were conferred upon Sunder being the tenant of the land. 14. The plaintiff himself has placed on record Ext. P-3, copy of Jamabandi, in which Sunder, son of Sh. Gusaun, son of Chanchal, the grand father of the plaintiff, has been recorded as owner-in-possession of a part of the suit land in Khatoni No. 6 and recorded as owner-in-possession as co-sharer in Khatoni No. 7 alongwith defendant-Bali Ram and Sukh Ram, his sons. Similarly, in Khata No. 7 and Khatoni No. 8, Sunder has been recorded as owner to the extent of his share alongwith other co-sharers Premi Devi etc. Ext. P-4 is the copy of Jamabandi for the year 1986-87, in which the same entry is repeated. Ext. P-5 is the copy of Jamabandi for the year 1980-81, wherein the name of Sunder is recorded as owner-in-possession in few Khatonies and in few Khatonies, he is recorded as co-owner alongwith other co-sharers including his sons. In Ext. Ext. P-4 is the copy of Jamabandi for the year 1986-87, in which the same entry is repeated. Ext. P-5 is the copy of Jamabandi for the year 1980-81, wherein the name of Sunder is recorded as owner-in-possession in few Khatonies and in few Khatonies, he is recorded as co-owner alongwith other co-sharers including his sons. In Ext. P-6, the copy of Jamabandi for the year 1975-76, the same revenue entries are shown and Sh. Sunder has been recorded as owner-in-possession. Ext. P-8 is the copy of Jamabandi for the year 1971-72 and Ext. P-9 is the copy of Jamabandi for the year 1966-67, in which again Sunder, the father of the plaintiff, has been recorded as owner-in-possession alongwith other co-sharers. The last Jamabandi filed on the record is the copy of Jamabandi for the year 1958-59 pertaining to the suit land, in which Pritam Singh etc. have been recorded in the column of ownership and in the column of possession Sunder, son of Gusuan, has been recorded as non-occupancy tenant. Ext. P-7 is the copy of the mutation which was attested and sanctioned on 09.06.1968 on the basis of partition ordered by Assistant Collector 1st Grade, Bilaspur. Ext. P-11 is the copy of mutation of exchange, vide which Chaudhary, brother of Sudner, son of Gusaun, got exchanged 2-3 bighas of land with Kanshi etc. The mutation was attested and sanctioned on 18.01.1964. Ext. P-12 is the copy of mutation dated 23.05.1964, vide which mutation of ''Hibba'' was attested and sanctioned in favour of Bali Ram and Sukh Ram, sons of Sunder. Vide Ext. P-13 on 01.10.1964, 20.05.1967 and 12.02.1966, respectively, the proprietary rights were sanctioned in favour of Sunder being the tenant of the land. 15. The plaintiff, while appearing in the witness box as PW-1, has testified that Sunder was his grand-father and Gusaun was the father of Sunder. After the death of Sunder, half of the property was inherited by the plaintiff and Sukh Ram and half of the property by defendants No. 1 to 4 and Dhanni Devi has not inherited any property, as it was a coparcenery property. However, in the cross-examination, he has admitted that Sunder had purchased 32 bighas and 15 biswas of land from Juanu and Gangi Devi. He has also admitted that Sunder had also purchased land measuring 16-17 bighas from Prem Lal. However, in the cross-examination, he has admitted that Sunder had purchased 32 bighas and 15 biswas of land from Juanu and Gangi Devi. He has also admitted that Sunder had also purchased land measuring 16-17 bighas from Prem Lal. He showed his inability to tell the Court that his grand father Sunder had also purchased 10 bighas and 5 biswas of land from Gopi. He has further admitted that at present, the land is recorded in the name of his father. 16. The father of the plaintiff-Sukh Ram has neither filed written statement nor appeared in the witness box to support the claim of the plaintiff. 17. Bali Ram-defendant has appeared as DW-1 and stated that the entire land was purchased by his father Sunder. In the cross-examination, the defendant has stated that the land was purchased by Sunder from Prem Lal and Gopi Ram and some of the land was in possession of his father as tenant. The plaintiff himself has admitted in his crossexamination that the suit land was purchased by his father from different persons and a part of the suit land was given to defendant No. 1 and proforma defendant No. 5 by way of gift by one Smt. Nardu. It has nowhere come in the evidence that Sunder has inherited this property from his immediate three ancestors. 18. In the instant case, Dhanni Devi inherited the property from her husband Sunder. The plaintiff has failed to prove that it was a coparcenery property. There is no documentary evidence on the record to prove that the property was inherited by Sunder from his male ascendants. In these circumstances, it can safely be said that Dhanni Devi has succeeded the property of Sunder Singh and the plaintiff has failed to prove that Dhanni Devi has not succeeded the property being class-I heir. As Dhanni Devi was Class-I heir, the property acquired by her, was her absolute property. 19. Now, coming to the question-whether the Will is genuine and free from suspicious circumstances'' 20. It has come on the record that Dhanni Devi took the attesting witnesses alongwith her to the office of the Sub-Registrar, Bilaspur, got registered Will Ext. As Dhanni Devi was Class-I heir, the property acquired by her, was her absolute property. 19. Now, coming to the question-whether the Will is genuine and free from suspicious circumstances'' 20. It has come on the record that Dhanni Devi took the attesting witnesses alongwith her to the office of the Sub-Registrar, Bilaspur, got registered Will Ext. DW-3/A in the name of defendants No. 2 to 4 in the presence of the attesting witnesses, she was duly identified by Advocate Budhi Singh Kaundal and the thumb impression of Dhanni Devi were having resemblances as per the report of expert. As far as the non-signing of the Will and putting thumb impression is concerned, Dhanni Devi has clarified that as she was having feeble eyesight, she has put her thumb impression instead of signing the Will. In these circumstances, it can safely be held that Will Ext. DW-3/A executed by Dhani Devi in favour of defendants No. 2 to 4 is free from all suspicious circumstances. 21. It is not disputed that Smt. Dhanni Devi, widow of Sunder had two sons, namely Bali Ram-defendant No. 1 and Sukh Ram-proforma defendant No. 5. It is also not disputed that defendants No. 2 to 4 are the sons of Bali Ram-defendant No. 1. It is proved on record that Smt. Dhanni Devi was the absolute owner of the suit land to the extent of her share alongwith Bali Ram and Sukh Ram, her sons. In the event of death of Dhanni Devi as intestate, defendant No. 1 and proforma defendant No. 5 would be entitled to inherit her share as class-1 heirs. It was vehemently argued by the learned counsel for the appellants that Smt. Dhanni Devi, mother of defendant No. 1 & proforma defendant No. 5 and grand-mother of defendants No. 2 to 4, had already executed a valid Will Ext. DW-3/A, dated 24.08.1993, which was registered on the same day before the Sub-Registrar, Bilaspur. Therefore, on the death of Smt. Dhanni Devi on 19.04.2000, the share of the suit land has been inherited by defendants No. 2 to 4 on the basis of said Will to the exclusion of defendant No. 1 and proforma defendant No. 5. The plaintiff, being the grand-son of Dhanni Devi, was even otherwise not entitled to inherit the property of his grand-mother, when his father-defendant No. 5 was alive. The plaintiff, being the grand-son of Dhanni Devi, was even otherwise not entitled to inherit the property of his grand-mother, when his father-defendant No. 5 was alive. As such, the question of succeeding said Dhanni Devi by the plaintiff, does not arise. 22. The Will Ext. DW-3/A, dated 24.08.1993 is the registered Will registered at Sr. No. 98 on 24.08.1993 by the Sub Registrar, Bilaspur, executed by Smt. Dhanni Devi in favour of defendants No. 2 to 4. Shri Amar Nath (DW-2) the Petition Writer, is the scribe of the said Will, whereas it has been attested by Chhota Lal (PW-3) and Ram Lal. Smt. Dhani Devi was identified before the Sub Registrar by Budhi Singh Kaundal, Advocate. The manner of execution of the unprivileged Will has been provided under Section 63 of the Indian Succession Act, 1925, which is reproduced below:- "(a) the testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) the signature of mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) the Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person, and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 23. Though, only the registration of the Will does not give presumption that it is validly executed, but in the present case, the Will stands proved by the propounder that the Will is free from all suspicious circumstances. 24. The learned counsel for the appellant-plaintiff has relied upon the judgment passed by the Hon''ble Supreme Court in case titled as S.R. Srinivasa and others vs. S. Padmavathamma, reported in (2010) 5 SCC 274 . 24. The learned counsel for the appellant-plaintiff has relied upon the judgment passed by the Hon''ble Supreme Court in case titled as S.R. Srinivasa and others vs. S. Padmavathamma, reported in (2010) 5 SCC 274 . It is apt to reproduce para-36 of the aforesaid judgment herein: "36. As noticed earlier by virtue of Section 15(2)(a) of the Act, the appellants would inherit the property in dispute. This right is sought to be defeated by Defendant No. 1 on the basis of the will dated 18.6.1974, allegedly executed by Puttathayamma. Defendant 1 being the sole beneficiary under the will claims that the plaintiffs cannot claim to "inherit" the property on the basis of intestate succession. Undoubtedly, therefore, it was for Defendant 1 to prove that the will was duly executed, and proved to be genuine." 25. The aforesaid judgment is of no help to the appellant/plaintiff as the defendants have proved the due execution of the Will and it is also proved that it is free from all suspicious circumstances. 26. The learned counsel for the appellant-plaintiff has also relied upon the judgment passed by this Court in case titled as Gian Chand & others vs. Smt. Shiv Dei & another, reported in (2014) (2) Shimla Law Cases, 667 . It is profitable to reproduce para-14 of the aforesaid judgment herein: "14. The "will" has been registered at Mandi. According to DW-1 Ramesh Chand, the distance between Baldwara and native place of plaintiff is 3 KMs. The distance between Tarandol and Sarkaghat is 20 KMs. Defendants have not explained why the "will" was not registered either at Baldwara or Sarkaghat. It has also come on record that Narain Lal was not in sound disposing mind. Ex.DW-4/A has been signed by Narain Lal in Hindi. However, he has signed the "will" in English. Narain Lal was identified by DW-6 Netar Singh. He could not explain how he knew Narain Lal. DW-4 Kashmir Singh has admitted that he was marginal witness in as many as 18 to 36 "will". According to him, he has signed the "will" first and thereafter it was signed by the testator. The "will" was to be signed by the testator first and thereafter marginal witness had to sign the "will". The presence of Narain Lal at the time of execution of "will" is doubtful. DW-4 Kashmir Singh is a stock witness. According to him, he has signed the "will" first and thereafter it was signed by the testator. The "will" was to be signed by the testator first and thereafter marginal witness had to sign the "will". The presence of Narain Lal at the time of execution of "will" is doubtful. DW-4 Kashmir Singh is a stock witness. It has also come on record that Sub-Registrar, Baldwara has refused to sign the "will" and in these circumstances, the "will" was got registered at Mandi. DW-5 Jeet Ram has also not deposed that he put his signatures on the "will" in presence of testator Narain Lal. Defendants have failed to prove that the "will" dated 1.1.1998 was executed in accordance with law. Merely that the "will" is registered will not make it valid. A person will not be taken to a distance of 70 KMs, if he is suffering from dysentery when he could be taken to a nearby Government Dispensary". 27. The aforesaid judgment is of no help to the plaintiff as in the present case, alongwith the registration of the Will, it has also to be proved on record that it is validly executed. Dhanni Devi has executed Will Ext. DW-3/A out of her free will after taking the attesting witnesses alongwith her to the Office of Sub-Registrar, Bilaspur and she was duly identified by Budhi Singh Kaundal, Advocate. Further, it has also come on the record that Dhanni Devi was being looked after by the defendants and the plaintiff was residing at a distant place. 28. Coupled with all these factors, it has come on the record that the father of the plaintiff, who was the son of Dhanni Devi, has neither filed written statement nor appeared in the witness box, meaning thereby, the presumption goes in favour of defendants No. 1 to 4 that Dhanni Devi had executed a valid Will. 29. In view of the above, the substantial question of law is answered accordingly holding that the learned First Appellate Court has appreciated the evidence correctly and the documents which have come on record, have been interpreted correctly and law has been applied correctly. 30. The net result of the above discussion is that the Appeal is devoid of any merit and deserves dismissal. Accordingly, the same is dismissed. 31. Pending application(s), if any, stand disposed of.