Delhi High Court
Ashutosh Sharma & Ors vs Smt. Sita Devi & Ors. on 8 February, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 08.02.2011
+ R.S.A.No.138/2004 & C.M.Nos.7537/2004 & 13354/2009
ASHUTOSH SHARMA & ORS ...........Appellants
Through: Mr. Dharmendra Kumar Mishra,
Mr. Gunjan Sharma, Ms. Rakhi
Rawat & Mr. Sudhir Chaudhary,
Advocates.
Versus
SMT. SITA DEVI & ORS. ..........Respondents
Through: Mr. Ved Prakash Trikha,
Advocate for respondents No.
11 & 12.
Mr. Kunal Soni, Advocate for
respondent No. 13.
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
INDERMEET KAUR, J. (Oral)
1 This appeal has impugned the judgment and decree dated
24.01.2004 which has endorsed the findings of the trial Judge
dated 19.01.2002 whereby the suit filed by the plaintiffs (seeking a
declaration to the effect that they be declared the owners/heirs of
late Har Prasad Sharma in terms of his Will and the amount of
Rs.92,500/- having fallen to the share of the deceased be released
to them) had been dismissed.
2 The plaintiffs are the descendants of Hira Lal. Hira Lal had
four sons namely (i) Chhuttan Lal, (ii) Kanwal Lal, (iii) Bala Prasad
& (iv) Har Prasad Sharma. Admittedly Kanwar Lal & Chhuttan Lal
had predeceased Har Prasad Sharma. Har Prasad Sharma had died
on 13.12.1983. As per the plaintiffs, he had left a Will dated
20.08.1973 in favour of sons of Bala Prasad who was the only
surviving brother of Har Prasad Sharma at the time of his death.
The contention of the appellants/ plaintiffs is that at the time of
death of Har Prasad Sharma, their father Bala Prasad was the only
surviving heir of Har Prasad Sharma; he fell in Entry II of Class II
of the Schedule of the class of heirs under the Hindu Succession
Act, 1956 (hereinafter referred to as the „said Act‟). Attention has
been drawn to the provisions of Sections 8 & 9 of the said Act. It is
pointed out that when Har Prasad died, he was not having any
other legal heir except his brother Bala Prasad. The order of
succession as per Section 9 postulates that the heirs in the first
entry shall be preferred to those in the second entry and so on.
Contention is that on the death of Har Prasad Sharma, Bala Prasad
was the only surviving heir of Har Prasad Sharma and after the
death of Bala Prasad the property would have fallen to the share of
his sons who are the appellants/ plaintiffs. It is submitted that
defendants No. 2 & 3 who are from the families of Kanwar Lal and
Chhuttan Lal (other predeceased brothers of Har Prasad Sharma)
had no right to object to the Will left by Har Prasad Sharma as they
had fallen in the subsequent entry i.e. entry IV of the class II heirs
in the Schedule. In these circumstances the judgments of the two
courts below holding that it was incumbent upon the plaintiffs/
appellants to have proved the Will of Har Prasad Sharma are illegal
findings and are liable to be set aside. It is pointed out that Bala
Prasad who was the only successor of Har Prasad Sharma at the
time of his death had filed his written statement wherein he had
given a no objection to the Will of Har Prasad Sharma. The second
written statement filed on behalf of the legal heirs of deceased
defendant No. 1 which was contrary to the earlier version of
defendant No. 1 could not have been read. It was in fact incumbent
upon the courts below to have adverted to the provisions of Order
XII Rule 6 of the Code of Civil Procedure (hereinafter referred to as
the „Code‟) and decreed the claim of the plaintiffs in terms of the
categorical admission of defendant No. 1 who had given a no
objection to the Will of Har Prasad Sharma. The legal heirs of
families of Chhuttan Lal and Kanwar Lal who were arrayed as
defendants No. 2 & 3 had no right to object to the Will; their
objections could not have been considered.
3 This is a second appeal. It had been admitted on 27.10.2010.
The following two substantial questions of law were formulated.
They read as under:-
1. Whether legal representatives of the deceased defendant
No. 1 could have adopted a stand different from their
deceased father, if so its effect?
2. Whether the defendants No. 2 & 3 have the locus standi to
challenge the will of the deceased Har Prasad Sharma ad
admittedly they fall in Class II entry-IV of the Schedule of
the Hindu Succession Act, 1956? If so, its effect.
4 Defendant No. 1 is Bala Prasad. His legal representatives are
the appellants/ plaintiffs. The remaining legal representatives of
Bala Prasad i.e. his daughters (arrayed as Defendant No. 1 (a), (b),
(c), (f), (g) & (h) had filed written statement wherein they had
contested the Will of Har Prasad. Learned counsel for the
appellants has rightly pointed out that a legal representative
cannot take a stand different from that of the deceased; he having
been impleaded as a legal representative only and in the same
capacity which was being occupied by the deceased. For this
proposition, reliance has been placed upon AIR (30) 1943 Calcutta
613 Surendra Narain Sarbadhikari Vs. Bholanath Roy Chowdhury
as also a judgment of the High Court of Punjab AIR (38) 1951
Punjab 389 Durga Dass Vs. Ram Rakha Mal. There is no dispute to
this proposition. A contrary plea cannot be set up by a legal
representative which is in conflict and opposed to what has been
taken up by the deceased; he is not permitted to set up a new case.
Such a contrary plea is not tenable. This position is only however
qua the written statement of defendant No. 1.
5 Substantial question of law No. 1 is answered accordingly.
6 This Court shall now advert to substantial question of law
No. 2. Defendants No. 2 & 3 have specifically in their written
statements stated that the Will of Har Prasad Sharma is forged and
fabricated; no such Will had been made by him. The question which
has to be answered as to whether defendants No. 2 & 3 had the
locus standi to challenge this Will of Har Prasad Sharma.
7 Counsel for the appellant has placed reliance upon AIR 1928
Madras 803 M.K. Sowbhagiammal & Anr Vs. Komalangi Ammal &
Anr as also another judgment of the Calcutta Bench reported in
AIR 1932 Calcutta 734 Nabin Chandra Guha Vs. Nibaran Chandra
Biswas & Others to support his submission that only a person who
has some interest in the estate of the deceased and is prejudicially
affected by the Will can oppose the grant of probate/letter of
administration. Both these judgments, which have been relied upon
by the counsel for the appellant, were in probate petitions which
were pending before the concerned Court; it was in this context
that persons who could be objectors had been gone into. In AIR
1923 Madras 131 L.S. Rajamanikam Vs. W.H. Farraru another
judgment relied upon by the learned counsel, the Court while
dealing the objections in a probate petition had held that before a
person can be permitted to contest a Will, he must show that he
has some interest in the property of the deceased, the possibility of
having an interest in the result of Will being set aside would be
sufficient.
8 Admittedly, defendants No. 2 & 3 are from the families of
Chhuttan Lal and Kanwar Lal; they fall in entry IV of Class of
Schedule of the said Act. Section 8 of the Hindu Succession Act
lays down the general rule of succession in the case of males.
Schedule attached to the said Act has specified the heirs in Class I
and Class II. In Class II, there are nine entries. A brother of a
deceased falls in entry No. 2. Admittedly Bala Prasad was the only
surviving brother of Har Prasad Sharma at the time of death of Har
Prasad Sharma. Applying the order of succession, Bala Prasad
would have succeeded to the estate of Har Prasad Sharma if Har
Prasad Sharma had died inte-state. However, this is only in the
case of intestacy . The plaintiffs are relying upon the Will dated
20.08.1973 of the deceased Har Prasad Sharma; they claim their
rights in terms of the aforenoted Will. Defendants No. 2 & 3 who
are from the families of Chhuttan Lal and Kanwar Lal fall in entry
IV of class II being sons of the brother of the deceased. They had
contested the Will. Nothing in law prevented them from doing so.
Section 8 of the said Act has laid down the general rule of
succession in the case of males and Section 9 has laid down the
order of succession amongst heirs in the Schedule. These
provisions are to be adhered to only when the estate devolves by
succession. This order of succession would not apply in the case of
a testamentary dispute. There is no legal hurdle or bar for the heirs
falling in entry IV of the Class II of the Schedule to contest the Will
of Har Prasad Sharma. They could legally have done so.
9 Judgments relied upon by the learned counsel for the
appellants were proceedings in a probate petition. The present is
simplicitor a suit for declaration; the plaintiffs had based their
claim on a Will; in the written statement, the defence taken was
that the Will was forged and fabricated; nothing prevented the
defendants No. 2 & 3 from raising this defence. The judgments
relied upon by learned counsel for the appellant have no
application to this proposition.
10 Substantial question of law No. 2 is answered accordingly.
11 The impugned judgment has endorsed the findings of the
trial Judge. It has non-suited the plaintiffs for the reason that the
plaintiffs were not able to prove the Will of Har Prasad Sharma.
This was while dealing with issue No. 4. Issue No. 4 reads as
follows:-
"Whether late Shri Har Prasad had ever executed any Will? OPP"
12 Both the fact finding courts had held that the Will Ex. PW-1/1
has not been proved in accordance with law; the attesting
witnesses PW-1 & PW-3 were not credible. Testimony of PW-1, the
attesting witness had been discarded, not being trustworthy.
Requirement of Section 63 of the Indian Succession Act, 1925 and
Section 63 of the Indian Evidence Act, 1872 had not been
established. There were fact findings endorsed by the two courts
which cannot be gone into by the second appellate Court. Even
otherwise, the substantial questions of law which have been
formulated by this Court have been answered. They are against the
appellants and in favour of the respondents as aforenoted. There is
no merit in this appeal.
Appeal as also pending applications are dismissed.
INDERMEET KAUR, J.
FEBRUARY 08, 2011
A
