Delhi High Court
Shri Narinder (Through Lrs.) vs Shri Jai Lal (Through Lrs) & Ors. on 30 August, 2010
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 19.8.2010
Judgment Delivered on: 30.8.2010
+ RSA No.75/2008 & CM No.4555/2008
SHRI NARINDER (Through LRs.) ..........Appellant
Through: Mr.Som Dutt Sharma, Advocate
Versus
SHRI JAI LAL (Through LRs) & ORS. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates
AND
RSA No.84/2008 & CM No.5138/2008
SHRI KISHAN CHAND SHARMA ...........Appellant
Through: Mr.Basant Kumar Gupta and
Mr.Bijender Singh, Advocates
Versus
GIAN PRAKASH SHARMA & ORS.
..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates
AND
RSA No. 90/2008 & CM No.5454/2008
SHRI RAM NIWAS SHARMA ............Appellant
Through: Mr.Sudhir Walia, Advocate.
Versus
SHRI JAI LAL (Through LRs) & Ors. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates.
AND
RSA No.108/2008 & CM Nos.7125/2008 & 14541/2010
SHRI SUBHASH BHARDWAJ & ORS. ...........Appellants
Through: Mr.Chander Shekhar, Advocate.
Versus
GIAN PRAKASH SHARMA & ORS. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates.
RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 1 of 26
AND
RSA No.130/2010 & CM No.11766/2010
SH. RAM NIWAS SHARMA ...........Appellant
Through: Mr.Sudhir Walia, Advocate
Versus
SHRI JAI LAL (Through LRs) & ORS. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates
AND
RSA No. 131/2010 & CM No.11769/2010
SHRI KISHAN CHAND SHARMA ...........Appellant
Through: Mr.Basant Kumar Gupta and
Mr.Bijender Singh, Advocates.
Versus
SHRI GIAN PRAKASH SHARMA & ORS. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates
AND
RSA No.142/2010
SHRI NARINDER KUMAR (Through LRs) ...........Appellants
Through: Mr.Som Dutt Sharma, Advocate.
Versus
SHRI JAI LAL (Through LRs) & ORS. ..........Respondents
Through: Mr.R.K. Bhardwaj and Mr. Dheeraj
Bhardwaj, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 2 of 26
INDERMEET KAUR, J.
C.M.Nos.7127/2008 (for exemption) & 14450/2010 (for
exemption) in RSA No.108/2008
Allowed subject to just exceptions.
RSA No.75/2008 & CM No.4555/2008 (for stay)
RSA No.84/2008 & CM No.5138/2008(for stay)
RSA No. 90/2008 & CM No.5454/2008 (for stay)
RSA No.108/2008 & CM Nos.7125/2008 (for stay)
RSA No.130/2010 & CM No.11766/2010 (for stay)
RSA No. 131/2010 & CM No.11769/2010(for stay)
RSA No.142/2010
1. These are seven second appeals preferred by four appellants.
They are (1) Ram Niwas, (2) Shri Kishan Chand Sharma, (3)
Narender Kumar and (4) Subhash Bhardwaj. The dispute in all
these cases relate to the right of inheritance of the four paisa share
of Smt. Anar Devi in the deity, offerings/puja sewa made at the
Kalkaji Temple; as also whether Smt.Anar Devi was competent to
transfer this right when she herself being a lady could not have
inherited the same.
2. Briefly stated the factual matrix of the case is as follows:
i. Suit proceedings (wherefrom these appeals have arisen)
had been initiated by Jai Lal S/o Ram Swaroop. He has filed a
suit for declaration and injunction seeking a decree of
declaration in his favour declaring him to be the sole legal
heir of Smt.Anar Devi in terms of a will dated 19.2.1972
executed by her in his favour, bequeathing all her immovable
and movable properties to him. This also included the puja
sewa which Smt.Anar Devi had allegedly inherited from her
deceased husband Chunni Lal. Subject matter of the suit is
these prayer offerings, deity puja sewa rights of Anar Devi in
the Kalkaji Temple.
(ii) Plaintiff Jai Lal is the son of Ram Swaroop, Ram Swaroop
is the brother of Chunni Lal, the deceased husband of Anar
Devi. Chunni Lal had two brothers namely Ram Swaroop and
Daulat Ram.
(iii) Ram Niwas subsequently impleaded in the suit
proceedings was arrayed as defendant no.7. He claimed
himself to be the grandson of the deceased Anar Devi. His
version is that his mother Niyadri was the daughter of Anar
Devi and Chunni Lal; Niyadri had pre-deceased her mother.
Ram Niwas is claiming title of the suit property through his
deceased mother.
(iv) Kishan Chand is the son of Nityanand. Nityanand is the
son of Daulat Ram. Daulat Ram is the brother of Chunni Lal.
Kishan Chand is thus grandson of Daulat Ram who is the
brother of deceased husband of Anar Devi.
(v) Narender is the son of Tula Ram. Tula Ram is the son
of Ram Swaroop who is the brother of deceased Chunni Lal
and the husband of Anar Devi. Narender is thus the
grandson of Ram Swaroop the brother of deceased Chunni
Lal.
(vi) Subhash Bhardwaj is also the grandson of Daulat Ram.
Daulat Ram as aforenoted is the brother of deceased Chunni
Lal who was the husband of Anar Devi.
3. The present suit had been filed in the year 1974. The Trial
Judge had disposed of the suit vide judgment and decree dated
16.8.1985. Five issues were framed initially, which read as follows:
1.Whether Anar Devi executed a will dated 18.2.72 in favour of the
plaintiff, if so, was she competent to bequeath the property in suit?
2.Whether defendant no.1,2,5 and 6 are the Lrs of Smt. Anar Devi?
3.Whether the suit is barred by the principle of resjudicata in view
of Sh.S.N.Kpoor, Sub Judge, Ist Class, Delhi?
4.Whether the suit is not maintainable as alleged by defendants in
para No.1 of the W.S.?
5.Relief.
4. On 2.5.1977, Ram Niwas was impleaded as a party on his
application under Order 1 Rule 10 CPC (hereinafter referred to as
„the Code‟). He was arrayed as defendant no.7.
5. On 19.9.1977 two additional issues were framed. They inter
alia reads as follows:
i.Whether Ram Niwas Sharma is the grand son ( Dhewta) of Anar
Devi? If so to what effect?
ii.Whether the defendant No.2 is entitled to inherit the property in
suit?
6. On 16.10.1985 the suit was decreed. While disposing of
issue no.1 the Trial Court had relied upon the testimony of PW-1
Yogender Pal, the person who was present at the time of execution
of the will, PW-2 Mool Shanker, attesting witness to the will. The
will was proved as Ex.PW-1/A. Deed writer PW-4 Deen Dayal has
also been examined. The will had been challenged by the
defendants on the ground that it was executed in suspicious
circumstances. Trial Judge disbelieved this version. Statement of
PW-3 Jai Lal, the plaintiff was also examined in this context. Trial
Judge noted that no suggestion had been given to PW-1 or to PW-2
that the will had been executed by Anar Devi either under coercion
or duress. Provisions of Section 63 of the Indian Succession Act
were held to be duly complied with. Contention of the defendant
that the will was a typed document showing that it was prepared
prior in point of time and Anar Devi had not understood its
contents was considered and discarded. The opinion of the
handwriting expert who had come into the witness box as a
defence witness DW-7 was gone into in detail; he had filed his
report in Suit No.61/69; in view of the categorical ocular evidence
i.e. testimony of the eye witnesses who had seen the executant
execute the will was given weightage over and above the report of
DW-7. In this context the testimony of the witnesses of the plaintiff
in whose presence the will had been executed by Anar Devi had
been upheld; the will was held to be duly executed. While disposing
of this issue, the Court had also relied upon provisions of Section
14 and 30 of the Hindu Succession Act, 1956 to draw a conclusion
that the property held by a female after the commencement of the
Act would be held by her as a full owner and not as a limited
owner. After the death of Chunni Lal on 4.12.1971 Anar Devi had
become the absolute owner of all the properties both movable and
immovable inherited by her from her husband. The Court had
further held that the offerings in the temple were her absolute
property which she had validly and legally bequeathed in favour of
the plaintiff.
7. While deciding additional issues no.1 and 2, it was held that
defendant no.7 is not the son of Niyadri i.e. he is not grandson of
Anar Devi; he has no right or title in the suit property.
8. This judgment dated 16.8.1985 was assailed in first appeal.
On 9.4.1994 the first Appellate Court decided the three appeals
filed by Ram Niwas, Nihal Chand, Krishan Chand. Vide this
judgment, appeals were allowed; matter was remanded back to the
Trial Court with a direction that the evidence sought to be led by
Ram Niwas i.e. the statement of Ram Niwas as also the statement
of Kamla Sharma be recorded. To that extent the judgment and
decree dated 16.8.1985 was modified. Fresh findings on issue no.1
and 2 were ordered to be recorded. The findings on the remaining
issues, however, remained undisturbed.
9. On 31.5.2000, the Court of the Civil Judge decided these
additional issues. Suit of the plaintiff Jail Lal was decreed.
Plaintiff was held to be the sole legal heir of Anar Devi and entitled
to succeed to the properties both immovable and movable
including the share of Anar Devi in the income of temple Kalkaji
and also to perform puja sewa. Ram Niwas not being the grandson
of Anar Devi was not entitled to any relief.
10. This judgment and decree dated 31.5.2000 was the subject
matter of a fresh round of litigation. On 1.12.2007 the Additional
District Judge dismissed the appeals filed by Ram Niwas,
Narender, Subhash Bhardwaj and Kishan Chand Sharma, they had
impugned the judgment dated 31.5.2000.
11. Against this judgment and decree dated 01.12.2007: Four
second appeals i.e.
(a) RSA No.75/2008 was preferred by appellant Narender.
(b)RSA No.85/2008 was preferred by appellant Kishan Chand
Sharma
(c) RSA No.90/2008 was preferred by appellant Ram Niwas
(d) RSA No.108/2008 was preferred by appellant Subhash
Bhardwaj
12. In the course of the hearing of these appeals on 13.8.2009
with the consent of the parties, the case was remanded back to the
Additional District Judge to hear the appeals afresh on the grounds
raised by them on all other issues except the grounds relating to
issues no.1 and 2.
13. On 19.2.2010 the Court of the Additional District Judge
decided these appeals in terms of the direction of this Court dated
13.8.2009. All the issues i.e. issue no.1 to 5 were decided in favour
of the plaintiff and against the defendant. Appeals were dismissed.
14. Assailing the order dated 19.2.2010:
(a) RSA No.130/2010 had been preferred by appellant Ram Niwas
(b) RSA No.131/2010 had been preferred by appellant Kishan
Chand Sharma
(c) RSA No.142/2010 had been preferred by appellant Narender.
(d) Objections had been filed by appellant Subhash Bhardwaj on
25.5.2010 against his judgment and decree dated 19.2.2000.
These objections were contained in CM No.14541/2010.
15. Before this Court arguments have been urged by each of the
appellants. Arguments by and large are common and overlap one
another; they have all assailed the will dated 19.2.1972 executed
by Anar Devi. It is contended that Anar Devi being a female could
not have inherited the puja sewa rights from her deceased husband
Chunni Lal. She herself having no title to this puja sewa she could
not have bequeathed any such right in favour of Jai Lal. Attention
has been drawn to the replication filed by Jai Lal in the
proceedings before the Trial Court which was the replication to the
written statement of Subhash Bhardwaj wherein the plaintiff had
stated that there is a custom prevailing that women can also
perform puja/sewa. It is submitted that no such evidence has been
led by the plaintiff before the Trial Court to substantiate his
version that as on date there was a prevailing custom which
enabled women also to participate in puja/sewa. Attention has
been drawn to para 4 of the plaint wherein there is a reference to
the will purported to have been executed by Anar Devi in favour of
Jai Lal but a perusal of this document show that there is no
mention of the puja sewa/offerings having been bequeathed to Jai
Lal; the will is absolutely silent on this aspect. It is contended that
this document has not been correctly interpreted by both the
Courts below. These are substantial questions of law.
16. On behalf of Kishan Chand Sharma in addition, it is
submitted that Jai Lal (through his legal representatives) had filed
a suit i.e. Suit No.146/2005. Attention has been drawn to the
plaint filed therein; reference has been made to paras no.9 and 13.
It is stated that in the plaint LRs of Jai Lal had made an admission
that after the judgment of Sh.S.N.Kapoor passed on 01.2.1974 in
Civil Suit No.61/69 wherein it had been held that no will could be
executed of the offerings of the Kalkaji Temple; this judgment
dated 1.2.1974 has become final. It is submitted that this
averment was made by the plaintiff (Jai Lal though his LRs) himself
in the aforenoted pleadings on which he cannot retreat. It is
further submitted that Jai Lal had filed proceedings seeking a
succession certificate in the year 1973 which were contested
proceedings; Jai Lal had not raised any plea that he is entitled to
the puja offerings of the Kalkaji Temple; this was a regular civil
suit under Section 295 of the Indian Succession Act and the said
proceedings are binding.
17. Arguments have been countered by learned counsel for the
respondents. It is pointed out that this Court is sitting in second
appeal and can only examine substantial questions of law if they
have arisen. The memos of appeal filed by the appellants in each
of the RSAs before this Court have not raised any substantial
question of law. It is submitted that the question of authenticity of
the will has already been gone into by the Trial Court; this is a fact
finding enquiry. Attention has been drawn to the written
statement filed by Narender in the Trial Court where in para no.3,
it has been admitted that Anar Devi had executed a will in favour of
Jail Lal and he would entitled to inherit her estate. It is submitted
that Narender has made a clear and categorical admission before
the Trial Court about the authenticity of the will; he cannot now
challenge it. Even otherwise the question as to whether the puja
offerings are the subject matter of a bequeath or not has also been
gone into in detail by both the fact finding Courts. The document
i.e. the will Ex.PW-1/A dated 19.2.1972 has been scrutinized in
detail. None of these issues can now be re-agitated in a second
appeal. The appeals are liable to be dismissed in limine.
18. Additional arguments propounded by the learned counsels
for the appellants in rebuttal have been dealt with in the
subsequent paragraphs. Arguments have been heard in depth and
in detail. The memos of appeal containing the questions of law as
enumerated by each of the appellants have also been perused.
19. (i) Appeals filed by Narender are RSA No.75/2008 and RSA
No.142/2010. Substantial question of law raised in the first appeal
relate to the findings of the first Appellate Court dated 9.4.1994.
These findings of the first Appellate Court dated 9.4.1994 had been
modified by an order of this Court dated 13.8.2009 whereby the
Additional District Judge had been directed to rehear the appeals
on all issues except additional issues no.1 and
2 on which a finding had already been returned on 31.5.2000 and
reaffirmed on 1.12.2007. The first five issues framed in the suit
were decided vide the judgment dated 19.2.2010. The substantial
questions of law raised in RSA No.142/2010 have also been
perused. They lay a challenge to the authenticity of the will dated
19.2.1972. As pointed out by the learned counsel for the
respondent, in the written statement appellant Narender has in
fact admitted the execution of the will by Anar Devi in favour of Jai
Lal with the further submission that Jai Lal is entitled to succeed to
the estate of Anar Devi including the puja sewa of the Kalkaji
temple. It does not now lie in the mouth of the present appellant to
assail the authenticity of the will. He has however challenged the
interpretation of the document; his submission being that the
entire document i.e. the will is silent on the bequeath of the puja
sewa/offerings; there is no whisper of the same.
(ii) The memo of appeal and the substantial questions of law
raised by Kishan Chand Sharma are contained in RSA No.82/2008
and RSA No.131/2010; they relate to the applicability of the
provisions of Order II Rule 2 of the Code. In this second appeal, it
has been contended that the right of worship and to receive
offerings of the deity is not transferable. Further the provisions of
XII Rule 6 of the Code had not been adhered to and the Courts
below had disregarded the order dated 1.7.2005 which was an
order passed by Additional District Judge on this application.
(iii) The third set of appeals has been filed by Ram Niwas which
are RSA No.90/2008 and RSA No.130/2010. The substantial
questions of law enumerated in the body of the first appeal relate
to the authenticity of the will; whether a mere registration of the
will satisfies the test of Section 68 of the Indian Evidence Act and
would be a sufficient proof for its due execution. It is submitted
that where the defence raised is that the will has been executed
under suspicious circumstances, it is for the propounder of the will
to discharge this burden. The same substantial questions of law
have been raised in the second appeal.
(iv) The last set of appeals have been preferred by Subhash
Bhardwaj i.e. RSA No.108/2008. It is contended that the will has
purported to bequeath a property which is unbequeathable (a
woman is not entitled to inherit puja/sewa rights); Anar Devi
thereby could not have acquired any such right by way of
inheritance from Chunni Lal; she herself not having any title to the
subject matter of the suit, could not have passed any better title to
Jai Lal. Provisions of Order II Rule 2 CPC had also not been
considered by the two fact findings Courts below; a suit for
declaration without any consequential relief was also not
maintainable. In this appeal on 25.5.2010, objections have been
filed which are contained in CM No.14541/2010. Learned counsel
for the appellant Subhash Bhardwaj has placed reliance upon a
judgment reported in [1975] 1 SCR 728 K.K.Ganguly Vs.
P.Banerjee to substantiate his submission that under Hindu Law
although shebaiti rights are inheritable like any other property, yet
it lacks the other incident of proprietary rights i.e. the capacity of
being freely transferred by the person in whom it is vested. It is
stated that there are three exceptions to this rule; the third of
which speaks of a custom which is the contention of the plaintiff in
his replication yet he has chosen not to lead any evidence on this
score to establish that custom had permitted Anar Devi to inherit
the puja sewa rights. Puja sewa offering rights could not have
been transferred to a woman; yet the finding of the Court that the
Will had bequeathed these rights in favour of Jail Lal is an
illegality. Reliance has been placed upon another judgment
reported in [1985] 3 SCR Shambhu Charan Shukla Vs. Thakur Ladli
Radha Chandra Madan Gopalji Maharaj & Anr. to support this
submission.
20. This Court is sitting in second appeal. Section 100 of the
Code was amended in 1976 to curtail second appeals with the
laudable object of not increasing arrears in High Courts. As
recently as in 2009 RLR 27(NSC) Koppi Setty V.Ratnam Vs.
Pamarti Venka Supreme Court has held that the High Court in
their anxiety to do justice is unnecessarily interfering with
concurrent findings of fact and are ignoring the mandate of the
amendment that second appeals should be only be on a question of
law which again must be a substantial question of law. The object
of this amendment as per the report of the Law Commission was
that any rational system of law should have only hearings on
questions of facts; one by the Trial Court and other by the first
Appellate Court as a search for the absolute truth. Thereafter
there must be reasonable restraint to reconcile which is based on
the doctrine of finality. Finality is absolutely necessary to give
certainty to law. At some stage the questions of fact must be
allowed to rest without re-agitating them again. This legislative
intent was clear at the time when Section 100 was amended; the
second Appellate Court cannot be a third trial of facts.
21. It is in this background and backdrop that the arguments
addressed before this Court have to be appreciated. The impugned
judgment has drawn out the chequered history between the
parties. It has been a long drawn litigation between the parties
spanning over several generations; it had started in 1974 and even
after more than three and a half decades the parties are still
litigating.
22. The dispute between the parties relate to the devolution of
the rights of late Anar Devi to perform puja/sewa and the income of
the Kalkaji Temple. Anar Devi was the wife of Chunni Lal. Chunni
Lal as a pujari was having a share in the puja/sewa which was the
income of the Kalkaji Temple to the extent of four pies in a rupee.
Chunni Lal and Anar Devi had a daughter namely Niyadri. Niyadri
was married to Sohan Lal. Niyadri had pre-deceased her mother.
As per the plaintiff, she had died issueless. As per the defendants
she had died leaving behind her son Ram Niwas who had
subsequently been impleaded in the present suit as defendant no.7.
Chunni Lal died on 04.12.1971. Anar Devi died on 20.8.1973.
After his death Anar Devi succeeded to his estate. In suit
No.61/1969 which was a suit under Order I Rule 8 of the Code
relating to the puja/sewa rights of the Kalkaji Temple; Anar Devi
was one amongst other widows; being the widow of Chunni Lal she
had also got share of the puja/sewa amounting to Rs.20,833/-.
DW-1 Kishan Chand has admitted all these facts in his cross-
examination. There is no dispute to this fact.
23. Anar Devi had purportedly left a will dated 19.2.1972
(registered on 9.3.1972) in favour of Jai Lal who was her nephew
being the son of her brother-in-law i.e. the son of Ram Swaroop.
Present suit was filed by Jai Lal seeking a declaration that he was
the sole legal heir of Anar Devi in terms of the will dated 19.2.1972
and was entitled to succeed to her estate both immovable and
moveable which included the share of Anar Devi in the puja/sewa
of the Kalkaji Temple. There were six defendants originally of
whom Kishan Chand, Narender, Subhash Bhardwaj were all
arrayed as defendants. Kishan Chand was defendant no.1;
Narender was defendant no.6; Subhash Bhardwaj is claiming
through Nihal Chand defendant no.3; Ram Niwas claiming to the
grandson of Anar Devi had moved an application under Order 1
Rule 10 of the Code pursuant thereto he had been impleaded as
defendant no.7.
24. The suit was contested by defendants no.4 to 6 which
included the present appellant Narender (defendant no.6) before
this Court. In his written statement he had admitted that Anar
Devi had executed a will dated 19.2.1972 in favour of Jai Lal; she
was competent to do so; further her puja/sewa offerings were a
part of her properties; this estate has devolved upon Jai Lal.
These admissions are contained in paras 3,4,8,10 and 11 of the
said written statement.
25. Kishan Chand (defendant no.1) another appellant had also
contested the suit; he had filed his written statement jointly along
with defendants no.2 and 3. Kishan Chand had moved an
application before the first Appellate Court under Order 12 Rule 6
of the Code seeking a decree on admission; the said application
had been rejected by the Court on 01.7.2005 holding it to be an
abuse of process of the court, which order had attained a finality.
It has not been challenged. Question of an incorrect appreciation of
the said order does not now arise. Submission of the learned
counsel for the appellant that the provisions of Order II Rule 2 of
the Code would be applicable is misconceived; submission being
based on the plea that since Jai Lal had applied for a succession
certificate in proceeding no.146 of 1974 which had been granted to
him, he had not made any specific averments about the puja/sewa
offerings; he cannot now raise this plea. This argument has to be
noted only to be rejected. The proceedings for the grant of
succession certificate under Part X of the Indian Succession Act
1925 are a summary proceeding. The cause of action in a
proceeding seeking a succession certificate is distinct and different
from the cause of action in a suit for declaration as filed by Jai Lal.
26. Section 387 of the Indian Succession Act inter alia reads as
follows:
"387.Effect of decisions under this Act, and liability of holder of
certificate thereunder.- No decision under this Part upon any question of
right between any parties shall be held to bar the trial of the same
question in any suit or in any other proceeding between the same parties,
and nothing in this Part shall be construed to affect the liability of any
person who may receive the whole or any part of any debt or security, or
any interest of dividend on any security, to account therefor to the person
lawfully entitled thereto."
This provision clearly states that a decision under this part
upon any question of right between any parties will not bar the
trial of the same question in any suit or proceedings between the
same parties. Further the averments in Suit o.146/2005 were
based on an order dated 1.2.1974 passed in Suit No.61/69 which
again was an order passed on an interim application under Order
XXII Rule 4 of the Code; it was not a conclusive finding. These
averments do not in any manner amount to an admission.
27. Appellant Subhash Bhardwaj is claiming through defendant
no.3 Nihal Chand who had been proceeded ex parte on 2.9.1975
which order has not been set aside. Attention has been drawn to
para 28 and 29 of the impugned judgment wherein the submission
of the learned counsel for the appellant has been noted that Anar
Devi being a woman could not have bequeathed any share in the
puja offerings of the Kalkaji Temple and she had herself no title to
the same; the submission being that this argument although noted
had not been answered in the impugned judgment. This vehement
submission of the learned defence counsel is also without any
merit. This is evident from the discussion in the following
paragraphs.
28. In the first round of litigation before the Court of the Civil
Judge five issues have been framed on 10.2.1972. Two additional
issues were framed on 19.9.1977; all of which have been
reproduced hereinabove. Suspicious circumstances about the
execution of the will had been alleged by the defendants. These
have been gone into in detail by the Trial Judge.
29. Under Section 63 of the Indian Succession Act the will shall
be attested by two or more witnesses; each of whom has seen the
testator signing or fixing his mark to the will in the presence of and
direction of the testator; however, it shall not be necessary that
more than one witness be present at the same time; no particular
form of attestation is also necessary. To discharge this onus, the
plaintiff had examined two witnesses of whom PW-1 Yogender Pal,
PW-2 Mool Shanker are the attesting witnesses to the will. PW-4
Deen Dayal was the deed writer. PW-1 had on oath deposed that
he had signed the will Ex.PW-1/A as an attesting witness on the
request of Anar Devi in her presence. He has admitted that the
deed was not drafted in his presence; further Anar Devi had put
her thumb impression at points E and F in his presence. The points
E and F were the thumb impression of Anar Devi affixed by her
before the Sub-Registrar. PW-2 the second attesting witness had
deposed that Anar Devi had put her thumb impression on the will,
on page 2 and before the Sub-Registrar in his presence; the will
was not written in his presence; it was type written; the will had
been read over to Anar Devi before she put her thumb impression;
she was in healthy statement of mind. PW-4, deed writer, had
made an entry regarding the will in his register; the thumb
impressions were obtained by him of Anar Devi in his presence;
the will was read over to her before she put her thumb impression.
30. Much emphasis has been laid by the learned counsel
appearing for Ram Niwas Sharma that this will has not been duly
executed as there are conflicting versions given by PW-1 and PW-
2.PW-1 has admitted that Anar Devi had not thumb-marked at point
B (which is the point of the execution of the will) in his presence;
further the deed writer in one part of the testimony describes the
colour of the ink of the thumb impression as black and in another
place as blue. Veracity and authenticity of the document not
having been established by clear and cogent evidence, a
substantial question of law has arisen on its interpretation. For
this proposition, the learned counsel has placed reliance upon the
judgments of Supreme Court reported in (1994) 2 SCC 135
Bhagwan Kaur Vs. Kartar Kaur; (1962) 3 SCR 195 Rani Purnima
Debi Vs. Kumar Khagendra Narayan Deb .
31. This submission of the learned counsel for the appellant is
completely devoid of the force. None of the judgments apply to the
facts of the instant case. In the first judgment there was clear
contradiction noted by the Supreme Court of the attesting
witnesses who had "turned turtle" in their cross-examination which
had led the Court to hold that the provisions of Section 63 of Indian
Succession Act and Section 68 of the Indian Evidence Act have not
been adhered to ; further a mere registration of the will by itself is
not sufficient to prove the will. So also were the facts in the
second judgment where also the Supreme Court had held that
mere registration of a will, would not discharge the onus of proving
this document.
32. In the instant case, both the Courts below i.e. the Trial Court
as also the first Appellate Court by cogent and coherent evidence
had held that the will was proved; the testimony of the two
attesting witnesses as also deed writer had been taken into
account. Merely because the plaintiff who was the beneficiary of
the will had propounded the will and had paid the stamp duty was
not sufficient to discard the document. The Trial Judge in its
judgment dated 16.3.1985 had given a detailed finding in this
regard while disposing of issue no.1. The suspicious circumstances
alleged by the defendant had been discussed at length and
rejected; they were held to be trivial in nature. It is worthy to note
that none of the witnesses of the plaintiff namely PW-1,PW-2 and
PW-4 had been given any suggestion by the learned defence
counsel that the will is forged or fabricated. In fact counsel for
Ram Niwas had not cross-examined any of these witnesses. The
version of DW-7 Ashok Kashyap, the handwriting expert, was
negatived; attention has also been drawn to the cross-examination
of DW-7 wherein it has been noted that although the positives of
the photographs i.e of the disputed and admitted signatures has
been filed yet there were no negatives on the court record. No
opinion was given by DW-7 on the thumb marks at points A, C, E
and F of Ex.PW-1/A. The Courts below had held that the will of
Anar Devi having been thumb marked by her in the presence of the
attesting witnesses; she having been read over and understood the
contents of the said document when she was in a sound disposing
mind, had proved the said document.
33. It is relevant to state that this issue was decided as issue no.1
along with the other issues on 16.8.1985. Thereafter the first
Appellate Court on 01.12.2007 had endorsed this finding. This
judgment was passed by the Court of Additional District Judge. On
13.8.2009 the predecessor of this court remanded the matter back
to Additional District Judge as it was held that the impugned
judgment which was passed by Additional District Judge had only
decided the two additional issues and the remaining five issues had
not been gone into. Pursuant to these directions the judgment
dated 19.2.2010 was passed by the Additional District Judge.
34. Vide the impugned judgment dated 19.2.2010, the Additional
District Judge had vide a detailed discussion in paras 10 to 35 held
that suspicious circumstances as alleged by the defendant stood
not proved. The cogent and coherent evidence through the versions
of PW-1, PW-2 and PW-4 had proved the will Ex.PW-1/A.
35. As already aforenoted, Anar Devi as widow of Chunni Lal in
suit no.61/1969 had received her share of puja offerings along with
other widows in the sum of Rs.20,833/-; this was in the year 1972.
This position stands admitted by DW-1 in his cross-examination.
The appellants before this Court were also parties in the
proceeding which was a representative suit under Order I Rule 8 of
the Code; no challenge had been made to the release of this money
which was none other than the share of puja offerings of Anar Devi
which had fallen to her share after the death of her husband.
These puja offerings were received by her i.e. in her capacity as a
woman.
36. It is not in dispute that the rights of shebiat offerings are
transferrable and is an inherited right. Contention of the
appellants is that Anar Devi being a woman could not have
inherited this right and since there was a custom which permitted
her to accept this share, there was no evidence led by the plaintiff
on this score showing her entitlement to do so.
37. In AIR 1984 SC 905 R.Palanimuthu Vs. Returning Officer &
Ors. Supreme Court had held that a widow is entitled to succeed to
the shebaiti rights left by her husband; on his death her limited
estate comes under her absolute ownership under Section 14(1) of
Hindu Succession Act 1956; such a right can be transferred by a
will. This answers the contention raised by the learned counsel for
the appellant. Anar Devi inherited this right of puja sewa from her
husband; she could validly transfer the same; she had done so by
virtue of the will executed by her in favour of Jai Lal. She was
competent to bequeath this share which was her absolute property.
It was for the appellants/defendants to have defied that there was
no such prevailing custom; in the absence of which her averments
had to be accepted.
38. Section 30 of the Hindu Succession Act 1956 enables a Hindu
to dispose of by a will his or her right in property. Section 14 of
the said Act specifically postulate that a property held by a hindu
woman after the commencement of the Act is no longer held by her
as a limited owner; she becomes a full owner of the said limited
right which includes both immovable and movable properties. The
impugned judgment had rightly endorsed the view of the Trial
Court that the will executed by her on 17.2.1972 was a valid will
wherein she was competent to bequeath her share in the puja sewa
in the Kalkaji Temple in favour of Jai Lal. This was her absolute
property.
39. The address on this finding more or less answers all the
queries raised by the learned counsels for the appellants. The
additional issues as aforenoted had been framed by the Court on
19.9.1977. They have been fact found not on one but on three
occasions. On 16.8.1985 they were disposed of by the Court of
Civil Judge wherein it was held that Ram Niwas Sharma was not
the grandson of Anar Devi and he was not entitled to inherit her
share. Evidence was scrutinized in detail. The onus to discharge
these issues was on defendant no.7 Ram Niwas Sharma. He had
claimed himself to be the grandson of Anar Devi. Testimony of
DW-1 Ram Niwas Sharma as also his father Sohan Lal Sharma DW-
7 had been delved into. It was not relied upon. The documentary
evidence produced by the defendant had been scrutinized. The
passport of Ram Niwas Sharma evidenced his date of birth as
1.10.1946 so also the affidavit Ex.DW-1/5 furnished by him. This
was contrary to the date of birth recorded in his birth certificate
Ex.DW-1/6 which had recorded his date of birth as 4.10.1946. The
school leaving certificate had yet recorded another birth date
which recorded the date of birth as 12.10.1946. On oath DW-1 had
again given a different version which did not match his
documentary evidence i.e. his passport and affidavit Ex. DW-1/5.
On oath in Court he had stated that he was born on 4.10.1946.
Provisions of Section 50 of the Evidence Act relied upon by learned
counsel for the appellants had been adverted to; the relationship of
DW-7 Sohan Lal Sharma with Ram Niwas Sharma had been
examined and so also the version of DW-5 and DW-6 the neighbour
and mausa of DW-7. These issues were decided against defendant
no.7 and in favour of the plaintiff. This was in the first round of
litigation which ended on 16.8.1985.
40. Thereafter an appeal was filed against the said judgment. On
9.4.1994, the Additional District Judge had remanded the case back
to the Civil Judge for a fresh decision on the additional issues after
permitting the parties to lead evidence.
41. On 31.5.2000 Civil Judge returned a fresh finding on the
additional issues. The detailed findings are contained in para 13
onwards in the said judgment. These additional issues were
decided after the statement of Ram Niwas Sharma was recorded as
DW-8. Kamla Sharma was examined by interrogatories but
thereafter she could not be cross-examined; her interrogatories
were not taken into account. The factual findings were again
detailed and delved into. The Court on 31.5.2000 again returned a
finding that Ram Niwas Sharma is not the grandson of Anar Devi
and he is not entitled to inherit her estate. Again these issues were
decided against defendant no.7.
42. This was the subject of an appeal before the Additional
District Judge who disposed it of on 01.12.2007. In this judgment
after a detailed finding the judgment dated 31.5.2000 was
reaffirmed.
43. These fact findings have since attained a finality and cannot
now be agitated afresh. This Court as already noted is not a third
fact finding court.
44. The judgments relied upon by learned counsel for the
appellant Ram Niwas Sharma reported in (2004) 9 SCC 468
Krishan Mohan Kul & Anr. Vs. Pratima Maity & Ors.; (2002) 6 SCC
404 Yadarao Dajiba Shrawane Vs. Nanilal Harakchand Shah & Ors.
and (2006) 5 SCC 545 Hero Vinoth Vs. Seshammal have been
perused. These judgments deal with the scope of the powers of the
second Appellate Court while hearing a second appeal. It is only
when the Courts below have recorded a completely erroneous
finding and ignored relevant documents which findings can be
termed as perverse, can the second Appellate Court interfere in the
findings of the Court below. In fact, what is a substantial question
of law has been discussed in detail in the last judgment i.e. the
judgment of Hero Vinoth (supra). The ratio of this judgment
recites as follows:
"23. To be "substantial" a question of law must be debatable, not
previously settled by law of the land or a binding precedent, and
must have a material bearing on the decision of the case, if
answered either way, insofar as the rights of the parties before it
are concerned. To be a question of law "involving in the case"
there must be first a foundation for it laid in the pleadings and the
question should emerge from the sustainable findings of fact
arrived at by court of facts and it must be necessary to decide that
question of law for a just and proper decision of the case. An
entirely new point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of the
matter. It will, therefore, depend on the facts and circumstance of
each case whether a question of law is a substantial one and
involved in the case, or not; the paramount overall consideration
being the need for striking a judicious balance between the
indispensable obligation to do justice at all stages and impelling
necessity of avoiding prolongation in the life of any lis. (See:
Santosh Hazari v. Purushottam Tiwari.)"
45. There is no such substantial question of law which has arisen
in this case. Findings of fact have been based on cogent and clear
evidence; Courts below have after an in depth detail of the oral and
documentary evidence concluded that the will had been validly
executed by Anar Devi in favour of Jai Lal; Ran Niwas Sharma was
not the grandson of Anar Devi; Ex. PW-1/A i.e. the will of Anar Devi
had validly bequeathed her properties movable and immovable in
favour of Jai Lal which included her right in the puja/sewa which
she was in fact competent to bequeath.
46. The judgment relied upon by learned counsel for the
appellant Narender reported in (2004) 5 SCC 551 Transmission
Corporation of A.P. Vs. Ch. Prabhakar & Ors. based on the
proposition that provision of Section 100 of the Code should not be
applied in the instant case after the amendment of 1976 and
should apply pre-amendment i.e. a right which has accrued to the
appellant from the date of institution of the suit is a misconceived
argument. The ratio of the judgment sought to be relied upon by
learned counsel for the appellant is an attempt to misguide the
Court. This was a writ petition where the amendment brought by
the Andhra Pradesh Legislation in the Indian Electricity Act had
been challenged with a direction that it be declared ultra vires
with a further direction to transfer the criminal cases to the Court
of the Special Metropolitan Magistrate for a trial in accordance
with law. In para 18 of the said judgment the Court had opined
that the right to appeal is a vested right which is to be governed by
the law prevailing on the date of the institution of the suit and not
by the law prevailing at the decision or at the date of filing of the
appeal. This proposition had been enunciated by the Apex Court
while dealing with the vires of a statute; whether it be declared
valid or invalid; it has no application in the context of the instant
situation.
47. The judgment relied upon by learned counsel for the
appellant Subhash Bhardwaj reported in AIR 1980 SC 707 Krishna
Singh Vs. Mathura Ahir states that succession to Mahantship of a
Math or a religious institution is ordered by a custom or usage of
that particular institution except where a rule of exception is laid
down by the founder who has created the endowment. How and in
what manner this judgment can be applied to the instant situation
has not been explained or argued by the learned counsel for the
appellant. Courts below had given concurrent findings that Anar
Devi was competent to bequeath her share of puja offering in
favour of Jai Lal; she had validly done so.
48. Fact findings cannot be interfered with at the second appeal
level. No question of law much less any substantial question of law
has arisen in the appeals. All the appeals as also the pending
applications are dismissed in limine.
INDERMEET KAUR, J.
AUGUST 30, 2010
nandan
