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2019 DIGILAW 318 (HP)

Adhi Raj v. Sheela Devi

2019-03-27

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The plaintiffs are the appellants, who having lost before both the learned Courts below, have filed the instant appeal by invoking the provisions of Section 100 of the Code of Civil Procedure, before this Court. The parties shall be referred to as the 'plaintiffs' and the 'defendants'. 2. Brief facts giving rise to file the present appeal are that the plaintiffs filed a suit for possession on the allegations that the land in dispute was owned by Shakti Chand, the father and husband, respectively of the appellants No.1 and 2. When the suit was filed, the appellant No.1 was minor and sued through his mother, appellant No.2. The suit property was ancestral being inherited by Shakti Chand from his ancestors. The said Shakti Chand was serving in Haryana Khadi Board and due to his ailment, he left the job in the month of October, 2001 and had died in PGI, Chandigarh on 15.2.2002. It was averred that the appellants are his legal heirs and are entitled to succeed the property of deceased Shakti Chand. The appellants and said Shakti Chand being Rajput by caste, are governed by agriculture customs and as per said custom the male holder is not entitled to alienate the property inherited by him from his ancestors. After the death of Shakti Chand, respondents No.1 and 2 manipulated a fake Will as the deceased had never executed the Will in their favour and the same is forged one. The respondents No.1 and 2 had further sold the suit property to respondents No.7 to 11. 3. The defendants resisted and contested the suit by filing written statement wherein they took preliminary objections qua maintainability, estoppel, locus-standi, cause of action, jurisdiction and valuation. On merits, it was alleged that plaintiff No.1 is not the son of late Sh. Shakti Chand and plaintiff No.2 is the widow of Kartar Singh alias Kartar Chand son of Sh. Surati Ram R/o Village Katoh, P.O. Tikkar Pir-Saluhi, Tehsil Dehra, District Kangra, H.P. and she never married to Sh. Shakti Chand. It was further alleged that defendant No.1 is only widow of late Sh.Shakti Chand as is evident from Parivar Register. It was alleged that the plaintiffs have concocted the story in order to grab the estate of late Sh. Shakti Chand and the Will dated 24.12.2001 executed by Sh. Shakti Chand. It was further alleged that defendant No.1 is only widow of late Sh.Shakti Chand as is evident from Parivar Register. It was alleged that the plaintiffs have concocted the story in order to grab the estate of late Sh. Shakti Chand and the Will dated 24.12.2001 executed by Sh. Shakti Chand is valid and effective one as the same has been executed in a free and disposing state of mind. Deceased Shakti Chand never lived with the plaintiffs. It was alleged that no objections were raised by plaintiff No.2 at the time of sanctioning of mutation. It was alleged that defendants No.1 and 2 sold part of the land in suit to defendants No.7 to 11 and the sale deeds are valid and effective one. Lastly, they prayed for dismissal of the suit. 4. From the pleadings of the parties, the learned trial Court on two occasions framed the following issues, which read thus: 1. Whether the plaintiffs are entitled for the decree of possession of the suit land? OPP 2. Whether the Will executed by Shakti Chand in favour of defendants is null and void as Shakti Chand was not competent to execute the Will of the suit land being ancestral property and the same is liable to be setaside? OPP 2.a. Whether the parties are governed by agricultural customs of Kangra and deceased Shakti Chand was not competent to execute the Will of the suit land in favour of defendants? OPP 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the plaintiffs have no right, title and interest in the suit land as the plaintiffs are not related in any manner to Shakti Chand? OPD 4.a. Whether the decesed Shakti Chand executed a valid Will in favour of defendants? OPD 5. Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD 6. Whether the plaintiffs have no cause of action and locus standi to file this suit? OPD 7. Whether this suit is barred by Section 10 C.PC. And Order 2 Rule 2 C.P.C.? OPD 8. Whether this Court has no jurisdiction to try the present suit? OPD 9. Whether this suit is not properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. 5. OPD 7. Whether this suit is barred by Section 10 C.PC. And Order 2 Rule 2 C.P.C.? OPD 8. Whether this Court has no jurisdiction to try the present suit? OPD 9. Whether this suit is not properly valued for the purpose of court fee and jurisdiction? OPD 10. Relief. 5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit on 01.03.2013 and the appeal filed against the same also came to be dismissed by the learned Appellate Court vide its judgment and decree dated 15.6.2018, constraining the appellants/plaintiffs to file the instant appeal. 6. It is vehemently argued by Mr. Jagat Pal, learned counsel for the appellants that the judgments passed by the learned Courts below are perverse and, therefore, are liable to be set-aside. I have heard Mr. Jagat Pal, learned counsel for the appellants and have gone through the material placed on records carefully. 7. At the out-set, it needs to be noticed that the suit filed by the appellants/plaintiffs was simplicitor for possession without seeking a declaration qua the Will and for that matter even the probate certificate that had been issued by a competent Court in favour of the defendants and, therefore, the suit itself was neither competent nor maintainable. In order to succeed the plaintiffs were required to first assail the probate certificate granted by a competent Court in favour of the defendants and were also required to assail the Will that has been set-up by the defendants, more particularly, when both these documents have been held to be genuine and legal by the learned Courts below. 8. That apart, the sole basis of claim set up by the plaintiffs is that Shakti Chand was a Rajput by caste and governed by agricultural custom wherein a male holder is not entitled to alienate the property inherited by him from his ancestors or to execute the Will etc. 9. Without going into the question as to whether the property was ancestral or not and assuming it to be ancestral, even then there was no law which prevented him from executing the Will of the so called ancestral property. 10. 9. Without going into the question as to whether the property was ancestral or not and assuming it to be ancestral, even then there was no law which prevented him from executing the Will of the so called ancestral property. 10. In fact, this question is no longer res integra in view of the judgment rendered by a Co-ordinate Bench of this Court in Kartari Devi and others versus Tota Ram, (1992) 1 ShimLC 402 and thereafter the ratio laid down therein was upheld and approved by a learned Division Bench of this Court in Tek Chand versus Mool Raj,1997 2 HinduLR 306 and both these judgments, in turn, have been approved by the Hon'ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev Kumar and others, (2009) 12 SCC 454 wherein it was observed as under:- "26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same from his father. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more res integra. 27. A learned Single Judge of the High Court in Kartari Devi and Ors. v. Tota Ram, (1992) 1 ShimLC 402 has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of the High Court in Tek Chand v. Mool Raj,1997 2 HinduLR 306 (Hindu LR p.310, para 14). In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside. 28. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in equal shares. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991." 11. In view of the aforesaid discussion, no question of law much less substantial question of law arises for consideration. 12. Accordingly, there is no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.