Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 2489 (RAJ)

Joravar Mal v. Paras Mal

2017-11-13

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : VIRENDRA KUMAR MATHUR, J. 1. This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and decree dated 02.05.2009 passed by the learned Additional District Judge (Fast Track), Parbatsar, District Nagaur in Civil Original Suit No. 21/2004 (26/2003) whereby the trial court decided issue No. 2 against the appellant-plaintiff and declined to partition the property mentioned in para No. 2(d) of the plaint. 2. Briefly stated, the appellant-plaintiff filed a suit for partition against the respondents-defendants stating therein that all the respondents-defendants and appellant-plaintiff are sons of late Shri Sohan Lal and grand-sons of Late Shri Sugan Chand. Ancestral and immovable property of Late Shri Sohan Lal is situated in Kuchaman City, Tehsil Nava, District Nagaur, the description of which is mentioned in paras Nos. 2 (d) ([k) (x) and (?k) of the plaint. It was specifically stated that all the four properties are the ancestral properties of the parties and were being jointly used by them. It was also stated that the respondents-defendants Nos.1 to 3 and 5 are permanently residing in Kuchaman City, whereas the appellant-plaintiff is residing in Mumbai and respondent-defendant No. 4 is residing in Jaipur, but all the respondents-defendants and appellant-plaintiff are having joint possession over the property. It was further stated that in one of the rooms of the property mentioned in para No. 2 (d) and which is in the northern side opening towards east-west both side, is being used by the appellant-plaintiff and his household articles are lying therein. It was stated that whenever the appellant-plaintiff used to come from Mumbai to Kuchaman City, he stays in that room. One of the rooms, opening towards northern side is in possession of the respondent-defendant Padamchand. The rest of the portions are lying unused. This property has not been partitioned between the parties. It is further stated that till the lifetime of the mother of the parties, entire family members and Late Shri Sohan Lal were being dominated and maintained by the mother. Recently their mother died and their father had died about 17 years ago. It is further stated that being Hindu, the parties are controlled by Hindu Law. It is further stated that till the lifetime of the mother of the parties, entire family members and Late Shri Sohan Lal were being dominated and maintained by the mother. Recently their mother died and their father had died about 17 years ago. It is further stated that being Hindu, the parties are controlled by Hindu Law. After the death of Late Shri Sohan Lal, the parties became legal heirs of the ancestral property and they got rights since birth in these properties and the properties are required to be partitioned in 1/7th share in each favour but the respondent-defendant No. 1 is not ready for mutual partition and wants to deprive the other legal heirs from their rights in the property. It was also stated that all the papers of the property are lying with the respondent-defendant No. 1 and he may misuse the same at any time by selling the property. On this ground the properties were sought to be partitioned by meets and bounds. 3. The respondent-defendant No. 1 filed his written statement and stated that the property mentioned in para No. 2(d) of the suit was the self acquired property of Late Shri Sohan Lal and it was a plot and thereafter construction was raised by Late Shri Sohan Lal. Thereafter, father Shri Sohan Lal executed a Will in favour of the mother and the mother, in turn, sold it to some one else. Therefore, this property cannot be made subject matter of the suit. With regard to the properties mentioned in paras Nos. 2 (d) ([k) (x) and (?k), it was stated that the same is ancestral property of Late Shri Sohan Lal. It was also stated that the present owner of the property mentioned in para No. 2 (d) has not been impleaded as party to the suit and, therefore, no relief can be granted with respect to the property mentioned in para No. 2(d) of the plaint. It was denied that any household articles of the appellant-plaintiff are lying in the property mentioned in para No. 2(d) of the plaint nor any household articles of the respondent-defendant No. 1 is lying there. It was also stated that two sisters of the parties have not been impleaded as parties to the suit and they have equal share in the property and are necessary party to the suit. It was also stated that two sisters of the parties have not been impleaded as parties to the suit and they have equal share in the property and are necessary party to the suit. The appellant-plaintiff and respondents-defendants Nos.2 to 6 filed the present suit in collusion just with a view to put loss to the respondent-defendant No. 1. No documents are available with the respondent-defendant No. 1. The respondent-defendant No. 1 does not want to sell any property. 4. No written statement was filed on behalf of the respondents-defendants Nos. 2 to 6. 5. On the basis of the pleadings of the parties, the trial court framed four issues and after recording evidence, concluded the trial and vide impugned judgment and decree dated 02.05.2009, decreed the suit to the extent of properties mentioned in paras Nos. 2 ([k) (x) and (?k) and the properties mentioned in para No. 16(b) of the written statement in equal 1/9 shares but declined to partition the property mentioned in para No. 2 (d) of the plaint. Therefore, being aggrieved by the judgment and decree dated 02.05.2009, the appellant-plaintiff prefers this first appeal. 6. Heard learned counsel for the parties. 7. It was contended on behalf of the appellant that the impugned judgment and decree of the trial court wile declining to partition the property mentioned in para No. 2(d) of the plaint and deciding issue No. 2 against the appellant-plaintiff is illegal, erroneous and contrary to material available on record. The trial court did not consider that Shri Lalluchand (DW-2), who is the witness of the defendant himself, has specifically stated in his cross-examination that there was a firm known as Sugan Chand Sohan Lal and it was joint hindu family firm and it was contended that the document Ex.A-1A makes it clear that M/s. Suganchand Sohan Lal purchased this property from Rameshwar Prasad S/o Shri Nathu Ram and this property was purchased vide sale-deed Ex.A-1A by late Shri Sugan Chand Sohan Lal from one Rameshwar Prasad and not by Shri Sohan Lal alone. Late Shri Sugan Chand is the father of Shri Sohan Lal. From the statement of Lalluchand (DW-2), coupled with the sale-deed Ex.A-1A, it becomes clear that Late Shri Sugan Chand Sohan Lal was a joint hindu undivided family firm. Late Shri Sugan Chand is the father of Shri Sohan Lal. From the statement of Lalluchand (DW-2), coupled with the sale-deed Ex.A-1A, it becomes clear that Late Shri Sugan Chand Sohan Lal was a joint hindu undivided family firm. When Shri Sohan Lal was not the sole owner of the property, then he had no right to execute any Will in favour of his wife (mother of the parties) and, in turn, the mother has also got no right to execute any Will in favour of Smt. Manju Devi. The fact remains that in view of the statement of Shri Lalluchand (DW-2) and in view of the sale-deed Ex.A-1A, the property is in the name of Late Shri Sugan Chand, Shri Sohan Lal is a joint hindu undivided family firm and it is liable to be partitioned. If any Will was executed, as alleged by the respondent-defendant No. 1, the same is of no consequence because it was not within his rights to execute such Will. In this respect, the appellant-plaintiff also adduced evidence, income-tax returns (Ex.2) and submitted that the judgment and decree to this extent deserves to be reversed. 8. It was also contended that simply because late Shri Sohan Lal purchased some strip of land from the municipalities, which is adjacent to the land mentioned in para No. 2(d) of the plaint, it cannot be said that the entire property mentioned in para No. 2(d) belongs to Shri Sohan Lal alone and the respondent-defendant No. 1 has not proved successfully that the entire property mentioned in para No. 2(d) of the plaint was purchased by late Shri Sohan Lal but still simply because late Shri Sohan Lal purchased some strip of land from municipalities, the learned trial court arrived at a finding that because of this purchase by Shri Sohan Lal, the entire property mentioned in para No. 2(d) was purchase by late Shri Sohan Lal, which is absolutely illegal and contrary to the document Ex.A-1A. 9. In the context of the allegations raised by the appellant-plaintiff, perused the pleadings and evidence placed on record. 10. So far as the contentions raised in respect of issue No. 2 are concerned, the issue was framed that whether the property mentioned in para No. 2(d) of the plaint is not ancestral property? And Manju Devi Jain is the owner? In the context of the allegations raised by the appellant-plaintiff, perused the pleadings and evidence placed on record. 10. So far as the contentions raised in respect of issue No. 2 are concerned, the issue was framed that whether the property mentioned in para No. 2(d) of the plaint is not ancestral property? And Manju Devi Jain is the owner? The appellant-plaintiff, in his pleadings, contended that the property mentioned in the para No. 2 of the plaint is ancestral property of late Shri Sohan Lal. The respondent-defendant No. 1, in his written statement, contended that the properties mentioned in paras Nos. 2 ([k) (x) and (?k) are undivided ancestral properties but the property mentioned in para No. 2(d) of the plaint is in the ownership of Manju Devi and in respect of this property, late Shri Sohan Lal executed a Will in favour of his wife Smt. Sua Devi vide Ex.A/4 and Sua Devi executed a Will on 09.04.1996 in favour of Smt. Manju Devi. From the pleadings, it has come out that there is difference between the parties as regards the property mentioned in para No. 2(d) of the plaint only and both the parties agreed that the remaining properties mentioned in paras Nos. 2 ([k) (x) and (?k) are ancestral properties, which are to be partitioned. 11. Whether the property mentioned in para No. 2(d) of the plaint is ancestral property or it was purchased by late Shri Sohan Lal alone, for this perused the evidence placed on record. It is admitted position that the appellant-plaintiff has not mentioned in his pleadings that the property mentioned in para No. 2(d) was purchased out of the funds of HUF during the subsistence of the HUF. In the cross-examination, the appellant-plaintiff has given an explanation that firm HUF Suganchand Sohan Lal is not in existence at present. He was not able to show any date as to when there was division of HUF. The appellant-plaintiff himself has placed on record the sale-deed Ex.1 dated 03.01.1955. In the Ex.1, name of M/s. Suganchand Sohan Lal Saraogi was entered as a purchaser. It is also admitted fact that on 03.01.1955, father of Sohan Lal, Shri Suganchand was not alive. The appellant-plaintiff himself has admitted that Shri Sugan Chand died 56 years ago. Ex.1, sale-deed was executed on 03.01.1955 and it was registered on the same day. In the Ex.1, name of M/s. Suganchand Sohan Lal Saraogi was entered as a purchaser. It is also admitted fact that on 03.01.1955, father of Sohan Lal, Shri Suganchand was not alive. The appellant-plaintiff himself has admitted that Shri Sugan Chand died 56 years ago. Ex.1, sale-deed was executed on 03.01.1955 and it was registered on the same day. In this way, the Ex.1 was executed and registered by Shri Sohan Lal Saraogi alone and Shri Sohan Lal has obtained the possession after payment of complete consideration amount. It is nowhere mentioned in Ex.1 that Shri Sohan Lal purchased this property out of the HUF Funds. The respondent defendant No. 1 has placed on record the sale certificate Ex.A/2 and receipt of Nagar Palika, Kuchaman City Ex.A/3. The appellant plaintiff has not stated anything with regard to that fact that his father Shri Sohan Lal has not purchased any strip of land through Ex.2 sale-deed and has not deposited the money as per the receipt Ex.A/3. From Ex. 1, A/2 and A/3 it is amply proved that the property as mentioned in para No. 2(d) of the plaint has been purchased by Shri Sohan Lal from his own income and after obtaining permission, has constructed the house. The appellant plaintiff's witness, Gopal Chand (PW-2), in his cross-examination, has admitted that the property was divided in the life time of Shri Sugan Chand and, therefore, there was no HUF of Shri Sugan Chand and there is no evidence regarding that as to when the HUF of Shri Sohanlal was formed. In the present case, the appellant plaintiff has not stated in para No. 2 of the plaint that the property mentioned in para No. 2 (d) belongs to late Shri Sohan Lal and in absence of the pleadings, evidence produced to prove this fact is of no value. 12. The learned trial court has rightly appreciated all the evidence placed on record and has rightly come to the conclusion that the appellant-plaintiff has failed to prove by oral and documentary evidence that the property mentioned in para No. 2(d) of the plaint was HUF property. Even he was not able to prove the existence of HUF at the relevant time. 13. Even he was not able to prove the existence of HUF at the relevant time. 13. So far as the genuineness of the Wills Ex.A/4 and Ex.A/5 is concerned, Parasmal (DW-1) in his statement, has referred both the Wills and proved Ex.A/4 and Ex.A/5 and stated that Ex.A/4 Will was executed by Shri Sohan Lal and Ex.A/5 will was executed by Sua Devi and Lalluchand (DW-2), in his statement, stated that Shri Sohan Lal called him to meet on 16.02.1986 and conveyed his willingness to execute Will in favour of his wife Sua Devi and as per his instructions, he himself drafted the Will (Ex.A/4) and got the same typed and on that Will, his signature is at 'A' to 'B' and at 'C' to 'D' is signature of Sohan Lal, who signed before him and at 'E' to 'F' is signature of Pukhraj Sharma. Nemichand (DW-3), in his statement, stated that Sohan Lal has constructed the house after purchasing the plot from his own income in which he was residing. After the death of Sohan Lal, Sua Devi executed the Will in favour of Manju Devi. He has further stated that Ratan Lal S/o Premsukh Jhanjhri, r/o Kuchaman City was called and as per the instructions of Sua Devi, the Will was executed on 09.04.1996 and Sua Devi put her thumb impression before him and Mohd. Hussain Teli put his signature as witness at place 'A' to 'B' and Sua Devi put her thumb impression at 'X' before him. 14. In this connection, the respondent-defendant No. 1, while referring to the judgment delivered in the case of Sridevi & Ors. v. Jayaraja Shetty & Ors., (2005) 2 SCC 784 , has contended that it is well settled proposition of law that mode of proving the Will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by section 63 of the Indian Succession Act, 1925. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. The onus to prove the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the Will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances has to be judged in the facts and circumstances of each particular case. The propounder of the Will has to show that the Will was signed by the testator, that he was at the relevant time in sound disposing state of mind, that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. 15. In the present case, the appellant-plaintiff has not produced any evidence as to suspicious circumstances nor he has given any explanation that Ex.A/4, Will does not bear signature of Shri Sohan Lal or Ex.A/5 does not bear thumb impression of Sua Devi nor it has been said that the signatures were forged. 16. The respondent has placed reliance upon the judgments delivered in the cases of Bajrang Factory Ltd. & Anr. v. University of Calcutta & Ors., (2007) 7 SCC 183 , Gopal Swaroop v. Krishna Murari Mangal & Ors., (2010) 12 Scale 470 , Ittianam & Ors. v. Cherichi @ Padmini, AIR (2010) SC 2994, Balathandayutham & Anr. v. Ezhilarasan, (2010) 2 RLW 1491, Ramesh Verma (D) TR. LRS. v. Lajesh Saxena (D) by LRs & Anr., (2016) 12 Scale 529 , Madhuri Ghosh v. Debobroto Dutta, (2016) 10 SCC 805 , Zarif Ahmad & Ors. v. Farooq, (2015) 1 Scale 690 , N. Kamalam (Dead) & Anr. v. Ezhilarasan, (2010) 2 RLW 1491, Ramesh Verma (D) TR. LRS. v. Lajesh Saxena (D) by LRs & Anr., (2016) 12 Scale 529 , Madhuri Ghosh v. Debobroto Dutta, (2016) 10 SCC 805 , Zarif Ahmad & Ors. v. Farooq, (2015) 1 Scale 690 , N. Kamalam (Dead) & Anr. v. Ayyasamy & Anr., AIR 2001 SC 2802 and Jagdish Chand Sharma v. Narain Singh Saini & Ors., (2015) 8 SCC 615 and contended that the Will is required to be attested by two or more witness each of whom has seen testator signing or affixing thumb mark on it and has seen some persons signing Will in the present and by directions of Testator. Execution of Will must be proved by at least one attesting witness. However, it is ideal to expect proof with mathematical certainly. Test to be applied always is test of satisfaction of a prudent mind in such matters. 17. The trial court has thoroughly appreciated the evidence placed on record and has rightly decided the issue No. 2 against the appellant-plaintiff and in favour of the respondents defendants. I found no ground to interfere with the impugned judgment and decree. The appeal is devoid of merit and the same is hereby dismissed.