HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Court No. - 23 RESERVED
Case :- SECOND APPEAL No. - 262 of 2007
Appellant :- Raj Kumar And Ors.
Respondent :- Ashok Kumar Chaurasia And 3 Ors.
Counsel for Appellant :- Mohiuddin Khan
Counsel for Respondent :- Vimal Kumar
Hon'ble Sudhir Kumar Saxena,J.
This second appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 31.05.2007 passed by Sri K.K. Sharma, Additional District Judge, Lucknow upholding the judgment and decree dated 29.03.2007 passed by Sri Sanjiv Siromani, IInd Additional Civil Judge (Senior Division), Lucknow, decreeing the suit for partition etc. Briefly stated facts are that Ashok Kumar and others filed suit for partition alleging that Babulal Chaurasia died in the year 1960 and his wife Smt. Tulsa Devi died in the year 1981. Property in Schedule-A belonged to Babulal Chaurasia while property mentioned in Schedule-B belonged to Smt. Tulsa Devi. They had six children namely Kalawati, Padmawati, Rajjan, Renu, Bhaiyaji and Lilawati but except Kalawati and Bhaiyaji, none survived. Kalawati was married to Thakur Prasad Chaurasia, from whom Ashok Kumar, Manju Chaurasia and Sanyogita Chaurasia were born, who filed suit claiming to be heir and legal representatives of Kalawati. Plaintiffs claim half share in the property mentioned in Schedule. Written statement was filed by Bhaiyaji, who claimed to be sole son with no sister and brother. It was averred that suit has been filed at the behest of Smt. Munni Devi, Aunt of Bhaiyaji, who is not vacating the house situated in Bazar Khala. Plaintiffs never resided in the disputed property. Babulal lived in this house with his mother for the last twenty years. Defendant spent Rs. 50,000/- in repairs of the house. Even if Kalawati established herself to be Babulal's daughter, defendant has prescribed the rights on account of adverse possession. Raj Kumar denied the plaintiffs case and adopted the written statement filed by Bhaiyaji. Smt. Shanti Devi, wife of Bhaiyaji, who was substituted after the death of Bhaiyaji filed written statement and claimed the title on the basis of Will dated 15.12.1980, executed by her mother-in-law Tulsa Devi in her favour, as such, entitled to entire property of Tulsa Devi. Shanti Devi has also filed regular suit no. 48 of 1995, which is pending before 1st Additional Civil Judge, Lucknow etc. Trial court framed following issues :-
" 1. Whether the pedigree given in the plaint is wrong ? If so its effect ?
2. Whether the properties described in Schedule A & B to the plaint devolved upon the plaintiffs and defendant as alleged in the plaint ?
3. Whether the properties in the suit detailed in Schedule A & B devolved upon the defendant alone ? If so, its effect ?
4. Whether the plaintiffs are not related to deceased Tulsa Devi ? If so, its effect ?
5. Whether the plaintiffs have been in possession of the properties in dispute ?
6. Whether the defendant has perfected his title by adverse possession as pleaded by him ?
7. Whether the suit is under valued and court fee paid is insufficient ?
8. Whether the suit is bad for non-joinder of necessary party as alleged in para 10A of W.S.?
9. Whether suit for partition is not maintainable as alleged in para 10-D of W.S. ?
10. What is the share (1/2 or 2/9); if any of the plaint ?
11. क्या प्रतिवादी सं o 1/1 श्रीमती शांति का विवादित संपत्ति में 1/2 भाग जैसा कि प्रतिवादी सं o 1/1 के प्रतिवादपत्र 223 के पैरा 4 व 13 में अभिकथन किया गया है ?"
Plaintiffs produced Ashok Kumar Chaurasia as P.W.1, Thakur Prasad Chaurasia as P.W. 2, Ganesh Prasad as P.W. 3, Sundar Lal as P.W. 4 while Rahmat Azam as D.W. 1, Smt. Shanti Devi as D.W. 2 and Raj Kumar as D.W. 3 were produced by defendants. Trial court came to the conclusion that plaintiffs are related to Tulsa Devi and the children of pre-deceased daughter Kalawati. Issue no. 5 was decided against plaintiffs. Defendants could not prove that they have perfected their title by adverse possession. Suit is not bad for non-joinder of parties and plaintiffs are entitled to half share in the property etc. With these findings, suit was decreed for partition declaring half share of the plaintiffs vide judgment and decree dated 29.03.2007. Half of the rent realized by the defendants was also found to be due to plaintiffs. Two appeals were preferred against the above decree. One by Raj Kumar and Ors. being R.C.A. No. 180/1997 and another being R.C.A. no. 219/1997 filed by Smt. Shanti Devi, which were dismissed by common judgment dated 31.05.2007, passed by 1st Addl. District Judge. This very decree has been challenged in the second appeal.
I have heard Sri Mohd. Arif Khan, learned Senior Advocate, assisted by Sri Piyush Agarwal for the appellant, Sri Vimal Kumar and Kumari Vishwamohini for the respondent.
So far as plaintiff's claim is concerned, her claim rests solely upon the averment that Kalawati was the daughter of Babulal. If Kalawati is held to be daughter of Babulal then plaintiffs would get their share in the property.
Bhaiyaji, son of Babulal denied that Kalawati was his sister and claimed entire property as a sole heir/son.
However, Smt. Shanti Devi, wife of Bhaiyaji came out with a Will. There is no reference of any Will executed by Smt. Tulsa Devi in favour of his wife Shanti Devi in the written statement of Bhaiyaji. However after thirteen years, Smt. Shanti Devi filed a written statement and claimed title on the basis of unregistered Will claiming entire property of Babulal and Tulsa Devi. Will was an unregistered one. No reason has been given in the Will for excluding other heirs. Moreover, it was not acted upon for a long period of thirteen years. Smt. Tulsa Devi died in the year 1981 but Will was pleaded in the year 1993. Trial court dis-believed the Will. An appeal was filed by Smt. Shanti Devi before the first appellate court but the same was dismissed for non-prosecution. No second appeal has been filed by her. She and her daughter (respondents) were personally served. It is, therefore, not necessary to go into the claim of Smt. Shanti Devi, at this stage.
Now the question is whether Kalawati was daughter of Babulal or Bhaiyaji alone was the legal heir, through whom defendants claim their title. Both the courts below have found that Kalawati was the daughter of Babulal. This is a pure finding of fact. This Court has also gone through the record. Evidence of P.W. 3 (Ganesh Prasad), the personal servant is unambiguous. He has deposed about the special relationship and Court does not find any reason to dis-believe the testimony of Ganesh Prasad, family servant, who has been believed by the courts below. Milkman-Sundar Lal has also deposed as P.W. 4, that Kalawati resided at Akbarigate house situated in Lucknow. Courts below have believed his testimony. P.W. 2-Thakur Prasad Chaurasia, husband of Kalawati has given details of his relationship and in cross-examination, his testimony remained unshakable. Details of marriage and death have also been given. Trial court has found his testimony to be trustworthy. Correspondence containing letters of the years 1943, 1947, 1953 with envelops and other material have been discussed thoroughly by the trial court. On the basis of oral testimonies as well as documentary evidences referred above, courts below have held Kalawati to be the daughter of Babulal and Tulsa Devi. It is not open for this Court to interfere with the findings of fact recorded after due consideration of evidence, in second appeal. Moreover, court does not find this finding to be perverse and there is no reason before this Court to take a different view. Now that plaintiffs have established that Kalawati is daughter of Babulal and Tulsa Devi, her share in the property cannot be denied.
Now Court proceeds to take up the substantial questions of law.
Following substantial questions of law were framed in this appeal:-
"a) Whether the judgment and decree passed by the lower appellate court was in conformity with the provisions of Order-41 Rule-31 Code of Civil Procedure ?
b) Whether it was not incumbent upon the trial court to frame a specific issue as to whether Smt. Kalawati was the daughter of Babu Lal and in not doing so, the judgment passed is sustainable in law ?
c) Whether the lower appellate court was justified in law in holding that non-framing of material issue would not vitiate the trial, more particularly, when the parties were not aware of their case ?
d) Whether the judgments passed by both the courts below are vitiated on misconstruction and misinterpretation of the law laid down by the Apex Court relating to the proof of pedigree ?
e) Whether in view of the provisions of Section 23 of the Hindu Succession Act 1956, suit filed by the respondents for partition of a dwelling house was maintainable and the courts below were justified in law in decreeing the same, holding that the respondents are entitled to get 1/3 share ?
f) Whether the Will executed by Smt. Tulsa Devi on 15.12.1980 in favour of Smt. Shanti Devi, mother of the appellants having been proved in accordance with the provisions of Section 68 of the Evidence Act, the courts below were justified in law in holding that the same is doubtful, as it was not acted upon, since the respondent no. 4 had not sought for mutation of her name, ignoring the fact that the mutation proceedings are fiscal in nature and would not confer any right or title ?"
Substantial question (a) Submission of Md. Arif Khan, learned Senior Advocate is that first appellate court has not framed the questions as required by Order 41 Rule 31 C.P.C. He has relied upon a decision of Hon'ble Apex Court in the case of Vinod Kumar vs. Gangadhar reported in [2015(1) SCC 391]. Other decisions relied upon him are Sagir Ahmad Khan vs. Munni Devi [2014 ARC 423], H. Siddiqui vs. A Rama Lingam [2011 (4) SCC 240]. In the case of Vinod Kumar (supra), Hon'ble Apex Court in para 20 & 21 of the judgment has taken a view that such non-compliance vitiates the judgment. Relevant paragraph are being quoted below :-
"20. The appeal thus succeeds and is accordingly allowed. The impugned judgment is set aside. The case is remanded to the High Court for deciding the first appeal afresh, keeping in view the principal of law laid down by this Court quoted supra.
21. However, we make it clear that we have not applied our mind to the merits of the issues involved in the case and hence, the High Court would decide the appeal strictly in accordance with law on merits uninfluenced by any of our observations, which we have refrained from making on merits. Needless to observe, the High Court will do so after affording an opportunity of hearing to both the parties and especially to the respondent because no one appeared today for him and hence, the High Court would send the respondent a fresh notice of the final hearing of the appeal. Since the case is quite old, we request the High Court to expedite its hearing."
In the case of G. Amalorpavam and Ors. vs. R.C. Diocese of Madurai and Ors. [2006 (3) SCC 224], it has been held by Hon'ble Apex Court that if after examining the entire evidence, findings have been recorded, then it will be a substantial compliance of Order 41 Rule 31 C.P.C. In para 9 Hon'ble Apex Court has observed that non-compliance of the provisions may not vitiate the judgment and make it wholly void. Relevant para 9 of the judgment is being reproduced below:-
" 9.The question whether in a particular case there has been substantial compliance with the provisions of Order 41 rule 31 C.P.C. has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 C.P.C. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate court there is substantial compliance with the provisions of Order 41 Rule 31 C.P.C. and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 C.P.C."
This Court had occasion to consider the scope of Order 41 Rule 31 C.P.C. and relying upon the three judgments Assistant Commissioner, Tumkur and Ors vs. K.N. Nagaraja [AIR 1983 Karnataka 111], [AIR 2000 Madras 465] and [AIR 2002 AP 134], in the case of Smt. Firoz Jahan and Ors. vs. Nazim Husain and Ors. [2013 (31) LCD 1448] has taken a view that non-framing of point for determination is not fatal.
As far as case of H. Siddiqui (supra) is concerned, courts below has not considered clause 11 of the agreement and in the case of Vinod Kumar (supra), judgment was found to be cryptic, given without noticing the relevant aspects. Moreover, it was a judgment of affirmance.
Where parties have led the evidence and said evidence has been considered for recording finding and if controversy is discernible from the judgment, then non-framing of points for determination does not vitiate the judgment and same will be treated to be substantial compliance of Order 41 Rule 31 C.P.C.
It is apparent from the judgment of the lower appellate court that court has considered the evidence and recorded the finding with due consideration. Moreover, first appellate court has specifically noticed the question to be decided as under :-
"....... विवाद है कि क्या श्रीमती कलावती बाबूलाल चौरसिआ की पुत्री थी की नहीं ? और क्या वादीगण अपने द्वारा प्रस्तुत किये गए अभिलेखीय और मौखिक साक्ष्य से कलावती का बाबूलाल की पुत्री होना सिद्ध कर पाये हैं कि नहीं I"
This Court has also gone through the evidence and find that there is no perversity or illegality in the findings recorded by the first appellate court. In view of the law propounded above, this Court is of the view that there has been substantial compliance of Order 41 Rule 31 C.P.C.
Substantial question (b) & (c) Plaintiffs have described the pedigree in their plaint, which finds mention in the judgment of the appellate court, as well. Plaintiffs claim through Kalawati and thus the question whether Kalawati was daughter of Babulal had to be determined necessarily for answering issue nos. 1, 2 & 4. This question was to be considered and has been considered by the courts below. Without deciding this question, how could have the finding regarding pedigree been given (issue no. 1). Court below have found that Kalawati was daughter of Babulal, after considering the evidence on record. Smt. Shanti Devi and Raj Kumar both had not and could not have deposed about Kalawati as she had died in the year 1957 as such they have been rightly dis-believed. It was specific case of defendants that Kalawati was not daughter and they have led evidence to that effect. In these circumstance where parties were aware of the issue and led evidence, omission to frame an issue in particular terms does not vitiate the proceedings, albeit issue no. 1 regarding pedigree covers this point. Reference may be made to decision of Hon'ble Apex Court in the case of Syed Akhtar vs. Abdul Ahad [AIR 2003 SC 2985]; in paras 10, 11 & 12, whereof it has been observed that appellate court considered the pleadings of the parties and recorded a finding on the issue of nuisance as such, non-framing of issue was not found to be fatal. In the case of Nedunuri Kameshwaramma vs. Sampati Saba Rao [AIR 1963 SC 884 (Para 6], in para 6 of the judgment, court although, recorded a finding that no issue was framed but went on to hold that this non-framing of issue does not vitiate the judgment inasmuch as parties went to trial, knowing fully well rival case and led the evidence.
Moreover, it was a suit for partition, where character of parties as plaintiff and defendant looses significance. Since parties knew that controversy in the suit was whether Kalawati was daughter of Babulal or not and parties led evidence, it is now not open to contend that non-framing of this issue has vitiated the judgment. Moreover, pedigree itself was proved which manifests that Kalawati was daughter of Babulal as such, there was no need to frame any issue as alleged.
Substantial question (d) Special knowledge has been proved by the servant (P.W.3) as well as by Thakur Prasad Chaurasia (P.W.2). Documentary evidence was also led to prove the relationship as such, it cannot be said that judgment is vitiated on account of mis-interpretation of law. No specific fallacy in the judgment could be pointed out in this regard. Pedigree has been proved by oral as well as documentary evidence. Both the courts have believed the testimony led by plaintiff. No perversity or illegality has been shown vitiating the findings. In the case of Dolgovinda Parich vs. Nimai Chand Mishra [AIR 1959 SC 914], scope of Section 50 was considered. Paras 6 & 7 of the judgment are being reproduced below :-
" 6. We proceed to consider the second question first. The Evidence Act states that the expression " facts in issue " means and includes any fact from which either by itself or in connection with other facts the existence, non- existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follow; "evidence" means and includes (1) all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry ; and (2) all documents produced for the inspection of the Court. It further states that one fact is said to be relevant to another when the one is connected with the other in any one of the ways referred to in the provisions of the Evidence Act relating to the relevancy of facts. Section 5 of the Evidence Act lays down that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and 'of such other facts as are declared to be relevant and of no others. It is in the context of these provisions of the Evidence Act that we have to consider S. 50 which occurs in Chapter 11, headed " Of the Relevancy of Facts Section 50, in so far as it is relevant for our purpose, is in these terms:-
'S. 50 When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact.' On a plain reading of the section it is quite clear that it deals with relevancy of a particular fact. It states in effect that when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who has special means of knowledge on the subject of that relationship is a relevant fact. The two illustrations appended to the section clearly bring out the true scope and effect of the section. It appears to us that the essential requirements of the section are-(I) there, must be a case where the court has to form an opinion as to the relationship of one person to another; (2) in such a,case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3)but the person whose opinion expressed by conduct is relevant must be a, person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship ; in other words,the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than more retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question. Now, the " belief " or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. We are of the view that the true scope and effect of Section 50 of the Evidence Act has been correctly and succinctly put in the following observations made in Chandu Lal Agarwala v. Khalilar Rahman, ILR (1942) 2 Cal 299 at p. 309 : (AIR 1943 Cal 76 at p. 80):-
"It is only opinion as expressed by conduct which is made relevant. This is how the conduct comes in. The offered item of evidence is the conduct', but what is made admissible in evidence is' the opinion', the opinion as expressed by such conduct)The offered item of evidence thus only moves the Court to an intermediate decision : its immediate effect is only to move the Court to see if this conduct establishes any I opinion' of the person, whose conduct is in evidence, as to the relationship in question. In order to enable the Court to infer 'the opinion ', the conduct must be of a tenor which cannot well be supposed to have been willed without the inner existence of the I opinion'.
When the conduct is of such a tenor, the Court only gets to a relevant piece of evidence, namely, the opinion of a person. It still remains for the Court to weigh such evidence and come to its own opinion as (1) I.L.R. [1942] 2 Cal. 299, 309. to the factum probandum-as to the relationship in question." We also accept as. correct the view that S. 50 does not make evidence of mere general reputation (without conduct) admissible as proof of relationship: Lakshmi Reddi v. Venkata Reddi, AIR 1937 PC 201.
7. It is necessary to state here that how the conduct or external behaviour which expresses the opinion of a person coming within the meaning of S. 50 is to be proved is not stated in the section. The section merely says that such opinion is a relevant fact on the subject of relationship of one person to another in a case where the court has to form an opinion as to that relationship. Part 11 of the Evidence Act is headed " On Proof ". Chapter III thereof contains a fascicule of sections relating to facts which need not be proved. Then there is Chapter IV dealing with oral evidence and in it occurs S. 60 which says inter alia :-
" Section 60. Oral evidence must, in all cases whatever, be direct; that is to say-
if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense in that manner;
if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.
" If we remember that the offered item of evidence under S. 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in S. 60; if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of S. 50 and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that that portion of S. 60 which provides that the person who holds an opinion must be called to prove his Opinion does not necessarily delimit the scope of S. 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under S. 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of S. 60. This, in our opinion, is the true inter-relation between S. 50 and S. 60 of the Evidence Act. In Queen Empress v. Subbarayan (1) Hutchins, J., said :-
" That proof of the opinion, as expressed by conduct, may be given, seems to imply that the person himself is not to be called to state his own opinion, but that, when he is dead or cannot be called, his conduct may be proved by others. The section appears to us to afford an exceptional way of proving a relationship, but by no means to prevent any person from stating a fact of which he or she has special means of knowledge.
While we agree that S. 50 affords an exceptional way of proving a relationship and by no means prevents any person from stating a fact of which he or she has special. means of knowledge, we do not agree with Hutchins, J., when he says that the section seems to imply that the person whose opinion is a relevant fact cannot be called to state his own opinion as expressed by his conduct and that his conduct may be proved by others only when he is dead or cannot be called. We do not think that S. 50 puts any such limitation."
So far as oral evidence is concerned, P.W. 1 has proved the plaintiffs case. P.W. 2- Thakur Prasad Chaurasia, husband of Kalawati has deposed about the marriage with Kalawati in the year 1936. He also stated that his wife died in the year 1957 in the house at Lucknow but her body was taken to Kanpur for cremation. He also proved correspondence between mother, daughter and father. Death report dated 11.06.1956 (C-49), document was also proved. He also proved signature of his father-in-law (Babulal) made in Mudia language. Name of Babulal finds mention as a person who reported the death of his daughter- Kalawati.
These correspondences and documentary evidences proved by Thakur Prasad Chaurasia has clearly established the plaintiffs' case. P.W.-3 (Ganesh Prasad) was a family servant, who lived with them for more than twenty two years, he also deposed about the death of Kalawati in the house of her father-Babulal at Lucknow. He has deposed to have gone with the body of Kalawati for cremation at Kanpur and proved the death report. He also deposed about the death of other relatives.
Moreover he has stated about partition and marriage of defendant- Bhaiyaji. Testimony of this witness is trustworthy to make it absolutely believable. P.W.-4 just proved that Kalawati lived at Akbarigate house, Lucknow. This oral evidence coupled with documentary evidence and other circumstances clearly goes on to show that plaintiffs have proved their case sufficiently and no error, warranting interference under Section 100 of the Code of Civil Procedure by this Court, has been committed.
Milkman- Sunder Lal (P.W.4) has proved that Kalawati resided in the Lucknow House. It has been proved by the evidence that Kalawati though lived and died at Lucknow, was cremated at Bhairavghat, Kanpur. Death certificate, which is more than thirty years old has to be treated to be valid one. It has been found to be bearing the signature of Babulal. Court does not find any reason to differ with the views taken by the courts below, which are based upon due analysis of oral as well as documentary evidence.
Substantial question (e) In view of the decision of this Court in the case of Km. Prema Devi and Ors. v. Raja Ram [2014 (32) LCD 2179], wherein it has been held that owing to amendment in Hindu Succession Act, now even a female heir can seek partition. This controversy now no more survives. Para 9 of the aforesaid judgment is being reproduced below :-
" 9. It is not disputed between the parties that by the Hindu Succession (Amendment) Act, 2005, the bar created by Section 23 of the Hindu Succession Act has been removed and now a female heir can also seek partition irrespective of the fact as to whether a male heir claims partition or not ? Although the bar of Section 23 was very much there when the appellants filed the suit for partition and thereafter filed the first appeal but during the pendency of second appeal, which was filed in the year 2002, the Amending Act no. 39 of 2003 came into effect and Section 23 was omitted. Thus, in view of above law laid down by the Hon'ble Apex Court as well as Hon'ble Bombay and Kerala High Courts, I am of the view that the benefit of the Amending Act should also be given to the appellants. The proceedings of partition are still pending in the form of second appeal and it is a settled law that second appeal is also considered as continuation of the suit and as such in view of the Amending Act, 2005 the matter deserves to be remitted back to the trial court for decision afresh in the light of Hindu Succession (Amendment) Act, 2005 and the observations made hereinabove in this judgment."
Sri Mohd. Arif Khan, learned Senior counsel candidly accepted this legal position and did not pursue the matter; although second appeal was admitted on this very question.
Substantial question (f) So far as Will is concerned, it will be relevant to state that it has come into light after a period of thirteen years. Such a delay is surrounded by suspicious circumstances. Suit was filed on 24.08.1984 for partition, wherein written statement was filed on 11.09.1985 by Bhaiyaji but he does not make a mention of any Will, allegedly executed in favour of his wife. Even at the time of framing of issues, on 09.11.1985, Will was not mentioned. In February 1993, this unregistered Will is pressed. Will is said to be dated 15.12.1980, much before the date of filing of suit but was pleaded for the first time in the year 1993. Twelve years after the death of testator and nine years after the filing of suit, when not only pleadings have been exchanged, but issues were also framed.
Delayed presentation of Will was itself a suspicious circumstance and its pro-pounder has to remove the clouds. It has been held in the case of Bharpur Singh and Ors. vs. Shamsher Singh [AIR 2009 SC 1766] that if the Will did not see the light for long, its a suspicious circumstance. It was further held that onus to remove the suspicious circumstance was upon the pro-pounder of the Will, which should be done by cogent, satisfactory and sufficient evidence. In paras 17 & 18, Hon'ble Apex Court has mentioned some of the suspicious circumstances. Relevant paras 17 & 18 are being reproduced below :
"17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will:
i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time.
iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
iv. The dispositions may not appear to be the result of the testator's free will and mind.
v. The propounder takes a prominent part in the execution of the Will.
vi. The testator used to sign blank papers.
vii. The Will did not see the light of the day for long.
viii. Incorrect recitals of essential facts."
18. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not.
It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with.
Reason that relations between husband and wife were strained is no reason for late appearance of Will. As such pro-pounder has failed to remove the clouds of suspicion.
Moreover, the Will was pleaded by Smt. Shanti Devi, wife of Bhaiyaji. Smt. Shanti Devi became party after death of her husband Bhaiyaji. This un-registered Will was not found proved by the trial court. Smt. Shanti Devi also filed appeal against the judgment given by the trial court being Appeal no. 219 of 1997 but She did not press the appeal, which was dismissed. No effort was made seeking the recall of the order. Moreover, she did not file any second appeal in this Court and the said order attained finality. Consequently, the case of Will stands closed.
From the above, it is apparent that none of these substantial questions of law framed are involved in this second appeal which is concluded by concurrent findings of fact recorded by the courts below.
This appeal has no force. Accordingly, appeal is dismissed with costs.
Order Date :- 23.12.2015 Nitesh