Raju And 7 Ors. vs Haragun @ Hukma And 2 Ors.
2013 Latest Caselaw 1010 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 356 of 2013
 

 
Appellant :- Raju and seven others
 
Respondent :- Haragun @ Hukma and two others
 
Appellant Counsel :- Harish K. Yadav
 
Respondent Counsel :- Sujeet Kumar
 

 
Hon'ble Sudhir Agarwal,J.

1. Heard Sri H.K. Yadav, learned counsel for the appellants and Sri Sujeet Kumar, learned counsel for respondents.

2. Following two substantial questions of law are involved in this case:

"(1) Whether the courts below are justified in holding that the will dated 28.07.1993 was not proved?

(2) Whether the Lower Appellate Court (hereinafter referred to as the "LAC") has committed manifest error and illegality by applying Section 14(1) of Hindu Succession Act 1956 (hereinafter referred to as the "Act, 1956") and ignored the provisions of U.P. Z.A. and L.R. Act 1950 (hereinafter referred to as the "Act, 1950")while deciding the legal rights between Premwati (wife of testator) and Raju with respect to the disputed Bhumadhari land?"

3. The courts below have held that will dated 28.07.1993 was not proved since there were two attesting witnesses, namely, Samaliya and Ghanshyam but none of them were produced to prove execution and attestation of will and, therefore, the will was not proved in accordance with law.

4. However, the record shows that PW-3 who was examined on 23.03.2000, his name has been mentioned in the certified photocopy of statement produced before this Court as Ghansyam alias Mitthan son of Sri Kamla and he has stated clearly that he was attesting witness to the will and has put in his signatures on the will as also before Registrar at the time of its registration. He has also stated that another witness was Sri Samaliya. In the entire cross-examination made by defendants there is no discussion or even a suggestion that Mitthan is not Ghanshyam and he has wrongly stated his name as Ghanshyam alias Mitthan and he was not the attesting witness to the will. On the contrary in cross-examination also he has reiterated what he has said in the examination-in-chief and there is not even a suggestion that he is not the attesting witness Ghanshyam to the will.

5. Sri Sujeet Kumar, learned counsel for respondents, however, tried to show that the name of attesting witness was Ghanshyam son of Kamal Datt while the name of PW-3 is mentioned as Ghanshyam alias Mitthan son of Sri Kamla and, therefore, it cannot be said that both are same persons.

6. On this aspect I do not find that before courts below there was any case set up by defendants-respondents that PW-3 is not one of the attesting witness who has signed the will mentioning his name as Ghanshyam and his statement that he is attesting witness is false or incorrect. Neither there is any such suggestion nor this aspect has been considered, nor any finding has been recorded by both the courts below that PW-3 has falsely claimed himself to be the attesting witness as Ghanshyam though he is not the same person.

7. Another attempt was made to doubt the copy of statement of PW-3 by referring to typed copy wherein at the bottom, date has been mentioned as 23.09.2000 but I find from certified copy that the date is not 23.09.2000 but it is 23.03.2000, as is evident from the very first page of certified copy of statement of PW-3. Moreover, this statement was actually recorded by Trial Court before hearing and deciding the suit, as is evident from the fact that it has been referred to in the judgments of courts below that PW-3 was examined by plaintiffs-respondents.

8. I, therefore, find that the will in question, in fact, was proved regarding its execution and attestation by adducing one of the attesting witness and there was sufficient compliance of Section 63 of Indian Succession Act, 1925 (hereinafter referred to as the "Act, 1925") read with Section 68 of Evidence Act, 1872 (hereinafter referred to as the "Act, 1872") and, therefore, the question No. 1 is answered in affirmative. It is held that the findings recorded by courts below are clearly erroneous and illegal.

9. Now coming to the second question, I find that the courts below have misconstrued the relevant statutory provisions of Act, 1950 and Act, 1956 and that is how both have arrived at wrong inference and conclusion.

10. The plaint case set up by plaintiffs, Raju son of Ramji Lal and Badami wife of Ramji Lal, was that the disputed plot No. 715 area 0.886 hectare situate at Mauja Barot, Tehsil Manth, District Mathura was in the joint ownership of plaintiff no. 2 and Sri Charan Singh husband of defendant no. 3, i.e., Smt. Omwati who was elder brother of husband of plaintiff no. 2 and father of plaintiff no. 1. Sri Charan Singh executed a registered will on 28.07.1993 pursuant whereto the plaintiff no. 1 became owner of disputed property to the extent it was owned by Sri Charan Singh. The defendant no. 3 was neither lawfully wedded wife of Sri Charan Singh nor otherwise entitled to possess or own disputed property. She was only kept by Sri Charan Singh for rendering service to maintain him and in consideration thereof assigned a limited estate in her favour in the registered will dated 28.07.1993 without giving her right to sale or transfer of property to anyone else. It is not in dispute that Sri Charan Singh died in October, 1993. The defendants no. 1 and 2 have subsequently got a sale deed executed in respect of disputed land from defendant no. 1 which is patently illegal. Consequently the relief sought by plaintiffs-appellants that defendants be not declared owner of disputed property in entirety and defendant no. 3 had no right to sale or transfer the aforesaid property to defendants no. 1 and 2 or to anyone else. Injunction was also sought by plaintiffs against defendants from interfering in possession of disputed property.

11. The defendants no. 1 and 2 filed their written statement claiming that property came to be devolved upon defendant no. 3 after death of Badami who died intestate and alleged will dated 28.07.1993 is clearly forged, fictitious and manipulated.

12. The Trial Court (hereinafter referred to as the "T.C.") while deciding issue no. 1 did not consider or held that PW-3, Mitthan claimed himself to be the attesting witness to the will in dispute was actually not so. In respect to the knowledge of PW-3, as to whether defendant no. 3 is legally wedded wife of late Sri Charan Singh or not, he found some contravention therein and thereupon only ignored his evidence and thereafter proceeded to hold that one of the two attesting witnesses ought to have been examined by plaintiffs to prove the will which has not been done. It has ignored the fact that PW-3 himself was attesting witness as claimed by him. More so, no doubt about his identity was raised by defendants at any point of time and without looking into this aspect of the matter, T.C. proceeded to hold that attesting witnesses have not been examined as a result whereof the will in question has not been proved. Here it had committed a manifest error in fact and law and that is how has reached to an incorrect inference and conclusion. Further, having said so, the T.C. did not consider other aspect of the matter, i.e., whether defendant no. 3 could have rightly been given a limited estate or not. It has dismissed the suit only on the ground that very foundation of plaint case, i.e., the will, is not proved.

13. The LAC virtually has repeated what has been said by T.C. in respect to the question of proof of will and has committed a similar error with regard to question, whether PW-3 was one of the attesting witness or not. However, having said so and reiterating findings of T.C. on this aspect, the LAC has further proceeded to hold that even if will is taken to have been proved, in view of Section 14(2) of Act, 1956, the transfer of property to defendants cannot be said to be limited inasmuch as she would get absolute right over the property and for this purpose has referred to the Apex Court's decision in V. Tulasamma & Ors vs V. Sesha Reddi (Dead) By L. Rs., AIR 1977 SC 1944.

14. Here this Court finds that LAC has clearly misdirected itself and has not examined statutory provisions as well as well settled law on this aspect. Under Section 169 of Act, 1950 the right of Bhumidhar to transfer his holding by a will to a female is not restricted unless holding is one, governed by sub-section (2) of Section 169. In a holding governed by Section 169(1) of Act, 1950, the Bhumidhar was entitled to give a restricted interest in property to a female. So far as Section 14 of Act, 1956 is concerned, there also sub-section (2) creates an exception in respect to right to a property, came to be transferred, by way of gift or a will, and, in such case, sub-section (1) of Section 14 of act, 1956 has no application.

15. In Jagan Singh Vs. Dhanwanti, 2012(2) SCC 628 the Apex Court after referring to its earlier decisions in Navneet Lal Vs. Gokul and others, 1976(1) SCC 630; Amar Singh Vs. Assistant Director of Consolidation, 1988(4) SCC 143; and, Mst. Karmi Vs. Amru, AIR 1971 SC 745 said:

"As can be seen, the purport behind this sub-section is to prohibit a bhumidhar entitled to any holding in the right of a female Hindu from bequeathing such holding by a will. The learned Judge clearly erred in reading this sub-section (2), and the effect of its deletion. He ignored that the present case was one falling under sub-section (1) of Section 169 and not under sub-section (2) since in the present matter the appellant was asserting his right with respect to the land which he received by way of the will of Umrao Singh. Respondent No.1 was entitled to a share in the land on account of that will only, and not on the basis of her own independent right. The will giving her a share had restricted it to her life time which Umrao Singh was entitled to do under Section 169 (1) of the U.P. Act, and the same would remain restricted in view of Section 14 (2) of Hindu Succession Act, 1956."

"The present case is one of a bhumidhar bequeathing his land by a will, and as held in Amar Singh (supra) the same was clearly permissible. The bequest made under section 169 (1) in favour of a female Hindu, if it is a restricted one, shall remain a restricted one under sub-section (2) of section 14 of Hindu Succession Act, since the same will be governed by the terms of the will. The learned Single Judge of the High Court thus clearly erred in holding that the bequest in favour of Respondent No. 1 was not a restricted one. In view of what is stated above, the Courts below erred in dismissing the suit filed by the appellant. In the circumstances, the judgments rendered by the High Court as well as by the Additional District Judge and by the Civil Judge are clearly erroneous in law and on facts."

16. In view of the above exposition of law it cannot be said that the LAC has rightly held that even if it is held that defendant no. 3 got disputed property through will dated 28.07.1993, her right of property was absolute under Section 14(1) of Act, 1956. The above view taken by LAC is clearly incorrect and in the teeth of statutory provisions discussed above and also against law of the land, settled in various decisions of Apex Court as referred above including recent one in Jagan Singh Vs. Dhanwanti (supra).

17. In the circumstances, the impugned judgments cannot sustain. The appeal is allowed. However, instead of remanding the matter to T.C., in my view, the matter can be effectively looked into by LAC itself, afresh. Therefore, I confine myself to set aside the judgment and decree passed by LAC and remand the matter to it for re-deciding the appeal. The judgment and decree dated 15.01.2013 is hereby set aside. The matter is remanded to LAC to decide Civil Appeal No. 18 of 2002 afresh, in the light of above discussions and observations and in accordance with law. No costs.

Order Date :- 17.04.2013

AK