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2022 DIGILAW 524 (HP)

Chet Ram S/o Late Sh. Fate Ram v. Roshan Lal

2022-09-07

AJAY MOHAN GOEL

body2022
JUDGMENT : As per report of the Registry, steps have not been taken for the service of respondents No.9(c) & 16 and further, legal representatives of deceased-respondent No.10 have also not been brought on record. Mr. S.D. Gill, learned counsel for the appellant submits that taking into consideration the fact that respondents No.9(c) and 16 are proforma respondents and further, deceased respondent No.10 is also proforma respondent, on his prayer, their names be deleted from the array of the respondents. Ordered accordingly. Names of respondents No.9 (c), 10 and 16 are deleted from the array of respondents. Registry to carry out necessary correction in the memo of parties. Heard for the purpose of admission. Brief facts necessary for the adjudication of the present appeal are that appellant/plaintiff filed a suit for declaration and permanent prohibitory injunction against the contesting defendants to the effect that Will dated 26.03.1999 was illegal, null and void and was procured by the predecessor of defendants No.3 to 7 and that the suit land was co-parcenery property, which otherwise could not have been alienated by way of Will. Decree was also sought for restraining the defendants by way of permanent prohibitory injunction also. 2. According to the plaintiff, the suit land was owned and possessed by late Shri Mithan son of Shri Dayalu, who was the common ancestor of the parties. After the death of Mithan, Shri Jhambria inherited the suit land being the son of Mithan. He was the ‘karta’ of family and custodian of the suit land. Mithan had two sons, namely Jhambria and Shibu. Plaintiff was the grandson of Jhambria, who expired on 20.09.2005. After the death of Jhambria, predecessor-in-interest of defendants No.3 to 7, namely, one Shri Raju got mutated the inheritance of the suit land in favour of the defendants. As per the plaintiff, he was informed that the inheritance stood attested in favour of all successors, but in the month of June, 2009, when plaintiff visited the Patwarkhana to obtain certain revenue records, it is then that he came to know that the suit land had been mutated on the basis of a Will of Jhambria, which Will was a result of fraud. According to the plaintiff, Jhambria had never executed any Will nor he could have had bequeathed the ancestral property to the exclusion of the plaintiff. According to the plaintiff, Jhambria had never executed any Will nor he could have had bequeathed the ancestral property to the exclusion of the plaintiff. Further, as per the plaintiff, the Will was shrouded with suspicious circumstances as Jhambria was old, aged and ailing person. The same was further outcome of misrepresentation of facts and collusion between defendants No.1 and 2 and late Shri. Raju, predecessor-in-interest of the other defendants. It is in this background, the suit stood filed. 3. Defendants No.4 to 7 filed a composite written statement through their natural guardian, opposing the suit, inter alia, on the ground that Jhambria was not related to plaintiff. As per the defendants, Fate Ram, father of the plaintiff was the son of one Janglu. Smt. Balki was the wife of Janglu, who gave birth to Fate Ram. She later on got settled with Jhambria when Fate Ram was about two years old. Jhambria was having two wifes. One was Smt. Balki and the another was Smt. Bangalan. Smt. Bangalan got settled with the brother of Jhambria, namely Shibu and gave birth to Hira Lal, i.e. the father of proforma defendant No.8. Sohan Lal, proforma defendant No.8 inherited the property of Shibu. Jhambria executed Will dated 26.03.1999 in favour of the defendants. As per the contesting defendants, the suit land was not ancestral and coparcenery property, but the same was self acquired property of late Shri Jhambria, whose brother was already separated in mess and possession of land. Further, as per the contesting defendants, the father of the plaintiff used to live at Karsog for the last twenty five years and plaintiff himself was residing at Kullu. There was no blood relation between plaintiff and Shri Jhambria. The defendants had served Shri Jhambria, who therefore, bequeathed his entire property in their favour by way of Will dated 26.03.199, which was duly executed in the presence of attesting witnesses and scribe. The Will was a genuine document and was not suffering from any suspicious circumstances. 4. On the basis of the pleadings of the parties, learned Trial Court framed the following issues: “1. Whether the Will No.39 dated 26-3-1999 is liable to be declared null and void, as prayed for? OPP 2. Whether the plaintiff is also entitled to be declared as the joint owner in possession of the suit land along with defendants, as prayed for? OPP. 3. Whether the Will No.39 dated 26-3-1999 is liable to be declared null and void, as prayed for? OPP 2. Whether the plaintiff is also entitled to be declared as the joint owner in possession of the suit land along with defendants, as prayed for? OPP. 3. Whether the defendants are liable to be restrained from forcibly dispossessing the plaintiff from the suit land or alienating the same through a decree of permanent prohibitory injunction, as prayed for? OPP. 4. whether the plaintiff is also entitled for the relief of mandatory injunction to the effect that in case he is forcibly dispossessed from the suit land the possession be restored, as prayed for? OPP. 5. Whether the suit is not maintainable in the present form, as alleged? OPD. 6. Whether the plaintiff has no locus standi to file the pressent suit, as alleged? OPD. 7. Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD. 8. Whether the plaintiff has no enforceable cause of action and right to sue, as alleged? OPD. 9. Whether the suit is time barred, as alleged? OPD. 10. Whether the Will No.39 dated 26031999 is a valid document, as alleged? OPD. 11. Relief.” 5. On the basis of evidence led by the parties in support of their respective contentions, the issues so framed were answered by learned Trial Court as under: Issue No.1 No. Issue No.2 No. Issue No.3 No. Issue No.4 No. Issue No.5 Yes. Issue No.6 Yes. Issue No.7 No. Issue No.8 No. Issue No.9 No. Issue No.10 Yes. RELIEF : The suit of the plaintiff is dismissed as per operative part of the judgment. 6. The suit was dismissed by the learned Trial Court by returning the findings that the Will executed by Jhambria was a valid document and not shrouded with suspicious circumstances. Learned Trial Court held that presumption cannot be drawn that as the testator was old, therefore, he was not of sound disposing mind. Learned Trial Court also held that it was for the plaintiff to lead cogent and reliable evidence that Jhambria was not of sound disposing mind at the time of execution of the Will, which he failed to do. Learned Trial Court held that the Will being a registered document, the same itself proved its genuineness. Learned Trial Court also held that it was for the plaintiff to lead cogent and reliable evidence that Jhambria was not of sound disposing mind at the time of execution of the Will, which he failed to do. Learned Trial Court held that the Will being a registered document, the same itself proved its genuineness. Learned Trial Court held that the execution of the Will was duly proved by the scribe of the Will as also the attesting witnesses. It also held that though there was no doubt that Jhambria had received the property from Mithan, but the plaintiff had failed to prove with cogent and reliable evidence that he was the grandson of Jhambria. In fact, plaintiff had categorically admitted that the first husband of Balki was Janglu and he also admitted that she got settled with Jhambria when his father was of tender age. Learned Trial Court held that Balki Devi, the wife of Jhambria had also testified that she was married to Janglu and gave birth to Fate Ram from his loins and this evidence of Balki Devi and admission of the plaintiff was sufficient to conclude that Fate Ram was not born from the loins of Jhambria. On these basis, learned Trial Court held that the plaintiff was not entitled to be declared as joint owner in possession of the suit land and as the plaintiff was not grandson of Jhambria, he was not having any locus to file and maintain the suit itself. 7. In appeal, these findings have been affirmed. 8. Learned Appellate Court while dismissing the appeal filed by the plaintiff held that as per the plaintiff, he was the son of Fate Ram and grandson of Jhambria and Jhambria was claimed to have inherited the entire suit land from common ancestor, namely, Mithan. Learned Appellate Court also held that defendants Raju and others were admittedly the grandsons of Jhambria. The plaintiff was obliged to produce the Pedigree Tables of previous owners of the suit land commencing from Mithan, the common ancestor, which he failed to do. Learned Appellate Court held that DW5 Smt.Balki Devi, wife of Jhambria had stated that Fate Ram, father of the the plaintiff took birth from the loins of her previous husband Shri Janglu and Fate Ram was three years old when she married with Jhambria. Learned Appellate Court held that DW5 Smt.Balki Devi, wife of Jhambria had stated that Fate Ram, father of the the plaintiff took birth from the loins of her previous husband Shri Janglu and Fate Ram was three years old when she married with Jhambria. On these basis, learned Appellate Court held that it had no hesitation in holding that the plaintiff had not been able to prove on record with the help of oral and documentary evidence that he was son of Fate Ram and grandson of Jhambria. 9. With regard to the suspicious circumstances shrouding the Will, learned Appellate Court upheld the findings returned by the learned Trial Court by observing that the Will in question was duly proved by the scribe as well as attesting witnesses who had deposed in the Court that the Will was executed by the testator knowing and fully understanding his act. 10. Feeling aggrieved, the appellant has filed this appeal. 11. I have heard learned counsel for the parties and have gone through the record of the case. 12. There are concurrent findings returned by both the learned Courts below to the effect that the plaintiff has not been able to establish the fact that he was the grandson of Jhambria. These findings have been returned by both the learned Courts below on the basis of evidence which has been led by the parties or to put it in other words, these findings have been concurrently returned by both the Learned Courts below in the absence of the plaintiff placing on record any cogent evidence to demonstrate that he was indeed the grandson of Jhambria. Further, with regard to the Will in dispute, both the learned Courts below have held that the same was not shrouded with suspicious circumstances as cogent and reliable evidence produced on record by the beneficiaries of the Will to prove that it was a valid Will. 13. As the entire suit of the plaintiff was based on the fact that he was the grandson of Jhambria and in view of the fact that there were concurrent findings returned by both the learned Courts below that plaintiff had failed to prove that he indeed was a grandson of Jhambria, in the absence of the present appeal involving any substantial question of law, the same is not sustainable. This is more so for the reason that learned counsel for the appellant was not able to demonstrate from the record that the plaintiff was actually the grandson of Jhambria. This Court can also not loose site of the fact that Smt. Balki (DW5), wife of Jhambria herself deposed that father of plaintiff was born from the loins of her previous husband Janglu. The appeal is, therefore, dismissed. Pending miscellaneous applications, if any, also dismissed. Interim order, if any, stands vacated.