Himachal Pradesh High Court
Vidya Devi & Others vs Shakuntla Devi & Others on 3 May, 2024
Author: M.S. Ramachandra Rao
Bench: M.S. Ramachandra Rao
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
RSA No.289 of 2018 alongwith
RSA Nos.295 & 309 of 2018
.
Reserved on: 22.03.2024
Pronounced on: 03.05.2024
RSA No.289 of 2018
Vidya Devi & Others ......Appellants
Versus
Shakuntla Devi & Others ...Respondents
_________________________________________________
RSA No.295 of 2018
Vidya Devi & Othersr ......Appellants
Versus
Jagir Singh & Others ...Respondents
_________________________________________________
RSA No.309 of 2018
Vidya Devi & Others ......Appellants
Versus
Shakuntla Devi & Others ...Respondents
__________________________________________________
Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Whether approved for reporting?
For the appellants : Mr. Ajay Chandel, Advocate, in all the
appeals.
For the respondents :
Mr. Ashwani K. Sharma, Sr. Advocate with
Mr. Ishan Sharma, Advocate, in all the
appeals.
_______________________________________________________
M.S. Ramachandra Rao, Chief Justice.
Heard learned counsel for the parties.
2) Since common issues arise between the parties in the above
.
appeals, the same are being disposed of by this common order.
3) The appellants in these three RSAs are the legal heirs of the
plaintiff Gian Singh.
4) The parties will henceforth be referred to as per their array in
the trial Court.
The relationship between the parties
5) Gian Singh is the son of Sh. Kishan Singh through his wife
Ramku Devi.
6) Kishan Singh had another wife by name Sairo Devi.
7) Kishan Singh had two sons through Sairo Devi by name Jagir
Singh & Bachitter Singh and two daughters by name Kartari
Devi & Sheelan Devi.
8) Kanta Devi is the wife of Jagir Singh and Shakuntla Devi is the
wife of Bachitter Singh.
9) Kishan Singh's father is Gopala and Kishan Singh had two
brothers by name Bishomber and Bansi Lal. The father of
Gopala is Ram Saran.
The case of the plaintiff
10) The case of the plaintiff Gian Singh (now deceased) is that
Kishan Singh inherited certain properties from his grand-father
.
Ram Saran and the same were ancestral properties; but treating
them as self acquired properties, Kishan Singh had executed
(a) on 27.2.2001 a registered will bequeathing certain
properties to Jagir Singh, Bachitter Singh & Sairo Devi;
(b) on 31.07.2001 two Gift Deeds and two Sale Deeds
gifting and transferring for consideration certain properties in
favour of Smt. Kanta Devi and Smt. Shakuntla Devi.
11) The plaintiff contended that since the property is an ancestral
property, Kishan Singh could not have executed either the
registered Will dt. 27.02.2001 or the two Gift Deeds
dt. 31.07.2001 or the two Sale Deeds dt. 31.07.2001.
12) He therefore filed on 26.12.2001 Civil Suit No.390 of 2001
before the Civil Judge (Sr. Division), Court No.1, District
Hamirpur, Himachal Pradesh, seeking possession of the lands
covered by the Gift Deeds and the two Sale Deeds.
13) The plaintiff also filed Civil Suit No.203 of 2003 on
01.08.2003 before the same Court seeking declaration that he is
the legal heir of Kishan Singh and the defendants have no right
over the properties, which are subject matter of the said suit,
and that Kishan Singh had no authority to execute the
registered Will on 27.02.2001.
.
14) He impleaded Jagir Singh, Bachitter Singh, Kartari Devi,
Sheelan Devi and Sairo Devi as defendants in the three suits.
The case of the defendants
15) The defendants contested the suits disputing the pleas of the
plaintiff and asserting that the property, in respect of which
Kishan Singh executed the above documents, was not an
ancestral property and but was his self acquired property.
16) Parties led oral and documentary evidence in support of their
respective pleadings.
The judgments of the trial court
17) On 31.08.2012, the trial Court decreed Civil Suit No.390 of
2001 and Civil Suit No.392 of 2001 and on 10.01.2013 decreed
Civil Suit No.203 of 2003 and gave findings in all the three
suits that the properties, which are subject matter of the Will,
the two Gift Deeds and the two Sale Deeds are ancestral/
coparcenery properties, which Kishan Singh inherited from his
father.
The First Appeals
18) Challenging the same, defendants filed Civil Appeal No.166/12
.
RBT No.41/13, 99/14; Civil Appeal No.167/12 RBT No.40/13,
100/14; & Civil Appeal No.52/13 RBT No.12/13, 146/14,
before the Additional District Judge, Hamirpur.
The judgment in the First Appeals
19) All these three First Appeals were allowed by the lower
Appellate Court setting aside the judgments of the trial Court
and dismissing the three civil suits filed by the plaintiff.
20) The lower Appellate Court held that the evidence on record
was not sufficient to establish the plea of the plaintiff that the
suit property in the hands of Kishan Singh was ancestral
property.
The present RSAs
21) Challenging the same, these RSAs have been filed by the
plaintiff's legal heirs.
22) These appeals were admitted on 24.11.2023 to consider the
following substantial questions of law:
This appeal is admitted to consider the following substantial
questions of law:
1. Whether the learned First Appellate Court erred in not holding
the property in the hands of deceased Kishan Singh to be
ancestral and coparcenary property and thereby erred in
reversing the well reasoned findings returned by the learned
.
Trial Court? 2.
2. Whether the learned First Appellate Court erred in not holding
that the property being ancestral and coparcenary could not
have been gifted as per prevalent custom?
This appeal is admitted to consider the following substantial questions
of law:
1. Whether the learned First Appellate Court erred in not
holding the property in the hands of deceased Kishan Singh to
be the ancestral and coparcenary property and thereby erred
in reversing the well reasoned findings returned by the
Learned Trial Court?
2. Whether the learned Appellate Court below has failed to
appreciate the oral evidence on record as well as the
customary law prevalent in the area to come to the wrong
conclusion that the custom as alleged regarding Will in view
of the provisions of Section 30 read with Section 4 of the
Hindu Succession Act, 1956 stands abrogated?
3. Whether the learned First Appellate Court below erred in
not holding that the property being ancestral and coparcenary
cannot be disposed of by way of Will as per prevalent custom
as well as Hindu Succession Act?
4. Whether the Lower Appellate Court's finding regarding
validity of the Will executed by deceased Kishan Singh is
perverse?
This appeal is admitted to consider the following substantial questions
of law:
1. Whether the learned First Appellate Court erred in not
holding the property in the hands of deceased Kishan Singh to
be the ancestral and coparcenary property and thereby erred
in reversing the well reasoned findings returned by the
.
Learned Trial Court?
2. Whether the learned First Appellate Court should have held
that the property being ancestral and coparcenary, if sale is
not permissible as per law?"
The applications for additional evidence
23) The appellants/plaintiffs have filed CMP No.14788 of 2019 in
RSA No.289 of 2018, CMP No.2508 of 2020 in RSA No.295
of 2018 & CMP No.14794 of 2019 in RSA No.309 of 2018,
under Order 41 Rule 27 CPC.
24) They contend that they wish to produce as additional evidence
the documents annexed to the said applications which support
their plea that the properties in question are ancestral properties
in the hands of Kishan Singh; that the properties had been
inherited by Gopala from his father Ram Saran and were thus
ancestral in nature in the hands of Kishan Singh, the son of
Gopala and his three sons; and so he could not have disposed of
the same by way of a Will, Sale or Gift.
25) It is also contended that these documents would enable this
Court to pronounce judgment and to do full, complete and
effectual justice to the parties; that the additional evidence was
required to answer the subject matter and to pronounce the
judgment on the material issue as to the nature of the property.
.
26) It is also contended that the documents are essential for
deciding the rights of parties and they are public documents,
which do not require any proof.
27) According to the appellants, the trial Court as well as the lower
Appellate Court had never asked the plaintiff to bring the said
documents and the appellants were not aware of the procedural
technicalities as to what documents were required to be
produced on record to prove that the nature of the land is
ancestral property.
28) It is stated that the appellants could not produce the same
previously as they were not well versed with the intricacies of
the law and despite due diligence, they could not produce the
said documents.
29) Counsel for the appellants also contended that the said
documents would enable this Court to pronounce the judgment
and to do full, complete and effectual justice to the parties and
so, these applications ought to be allowed.
30) The counsel for the respondents/defendants opposed the said
application and contended that the plaintiffs/appellants cannot
be allowed to fill up the lacunae in their evidence; that they had
.
not shown any due diligence in producing the same when the
case was pending in the trial Court or lower appellate Court;
and the applications therefore should be dismissed.
31) We shall first deal with these applications.
32) Order 41 Rule 27 CPC, states as under:-
"27. Production of additional evidence in Appellate Court-(1)
The parties to an appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the Appellate
Court. But if-
(a) The Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been
admitted, or
(aa) the party seeking to produce additional evidence,
establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or
could not, after the exercise of due diligence, be produced
by him at the time when the decree appealed against was
passed,
or]
(b) the Appellate Court requires any document to be produced
or any witness to be examined to enable it to pronounce
judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be
produced, or witness to be examined.
(2) Whether additional evidence is allowed to be produced by
an Appellate Court, the Court shall record the reason for its
admission."
33) In Arjan Singh vs. Kartar Singh1, the Supreme Court held that
.
the true test for allowing an application, seeking to adduce
additional evidence, is "whether the appellate court was able
to pronounce judgment on the material before it without taking
into consideration the additional evidence sought to be
adduced."
34) In Union of India v. Ibrahim Uddin2, the Supreme Court
summed up the law on the aspect in the following terms:
"36. The general principle is that the appellate court should
not travel outside the record of the lower court and cannot
take any evidence in appeal. However, as an exception, Order
41 Rule 27 CPC enables the appellate court to take additional
evidence in exceptional circumstances. The appellate court
may permit additional evidence only and only if the conditions
laid down in this Rule are found to exist. The parties are not
entitled, as of right, to the admission of such evidence. Thus,
the provision does not apply, when on the basis of the
evidence on record, the appellate court can pronounce a
satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly. Such a
discretion is only a judicial discretion circumscribed by the
limitation specified in the Rule itself. (Vide K. Venkataramiah
v. A. Seetharama Reddy34, Municipal Corpn. of Greater
AIR 1951 SC 193
(2012) 8 SCC 148
Bombay v. Lala Pancham35, Soonda Ram v.
Rameshwarlal36 and Syed Abdul Khader v. Rami Reddy37.)
37. The appellate court should not ordinarily allow new
.
evidence to be adduced in order to enable a party to raise a
new point in appeal. Similarly, where a party on whom the
onus of proving a certain point lies fails to discharge the
onus, he is not entitled to a fresh opportunity to produce
evidence, as the court can, in such a case, pronounce
judgment against him and does not require any additional
evidence to enable it to pronounce judgment. (Vide Haji
Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and Co.38)
38. Under Order 41 Rule 27 CPC, the appellate court has the
power to allow a document to be produced and a witness to be
examined. But the requirement of the said court must be
limited to those cases where it found it necessary to obtain
such evidence for enabling it to pronounce judgment. This
provision does not entitle the appellate court to let in fresh
evidence at the appellate stage where even without such
evidence it can pronounce judgment in a case. It does not
entitle the appellate court to let in fresh evidence only for the
purpose of pronouncing judgment in a particular way. In
other words, it is only for removing a lacuna in the evidence
that the appellate court is empowered to admit additional
evidence. (Vide Lala Pancham35.)
39. It is not the business of the appellate court to supplement
the evidence adduced by one party or the other in the lower
court. Hence, in the absence of satisfactory reasons for the
non-production of the evidence in the trial court, additional
evidence should not be admitted in appeal as a party guilty of
remissness in the lower court is not entitled to the indulgence
of being allowed to give further evidence under this Rule. So a
party who had ample opportunity to produce certain evidence
in the lower court but failed to do so or elected not to do so,
cannot have it admitted in appeal. (Vide State of U.P. v.
Manbodhan Lal Srivastava39 and S. Rajagopal v. C.M.
Armugam40.)
.
40. The inadvertence of the party or his inability to
understand the legal issues involved or the wrong advice of a
pleader or the negligence of a pleader or that the party did
not realise the importance of a document does not constitute a
"substantial cause" within the meaning of this Rule. The mere
fact that certain evidence is important, is not in itself a
sufficient ground for admitting that evidence in appeal.
41. The words "for any other substantial cause" must be read
with the word "requires" in the beginning of the sentence, so
that it is only where, for any other substantial cause, the
appellate court requires additional evidence, that this Rule
will apply e.g. when evidence has been taken by the lower
court so imperfectly that the appellate court cannot pass a
satisfactory judgment.
42. Whenever the appellate court admits additional evidence
it should record its reasons for doing so (sub-rule (2)). It is a
salutary provision which operates as a check against a too
easy reception of evidence at a late stage of litigation and the
statement of reasons may inspire confidence and disarm
objection. Another reason of this requirement is that, where a
further appeal lies from the decision, the record of reasons
will be useful and necessary for the court of further appeal to
see, if the discretion under this Rule has been properly
exercised by the court below. The omission to record the
reasons must, therefore, be treated as a serious defect. But
this provision is only directory and not mandatory, if the
reception of such evidence can be justified under the Rule."
(emphasis supplied)
35) I may point out that these applications are moved to place on
record the documents for the first time after the appeals had
been filed in 2018 in relation to Civil Suits, which have been
.
instituted on 26.12.2001 and 01.08.2003, and no attempt had
been made prior to 2018 either in the trial Court or in the lower
Appellate Court to bring these documents on record.
36) I, therefore, do not accept the plea of the appellants that the
plaintiff had exercised due diligence, and in spite of that he
could not produce this evidence either in the trial Court or in
the lower Appellate Court.
37) Unless I find that I would not be able to pronounce the
judgment on the material before me without taking into
consideration the additional evidence sought to be adduced or
that I will not be able to pronounce the judgment in a more
satisfactory manner without looking into the additional
evidence, I cannot allow these applications.
38) I do not feel that, in the facts and circumstances of these
appeals, it is necessary for me to consider the additional
evidence now brought to the notice of this Court in these
applications for pronouncing judgment in the matter in a
satisfactory manner.
39) I am of the opinion that the appellants cannot be permitted to
fill up the lacuna in their evidence at this late point of time in
spite of having ample opportunity to bring this material on
.
record both in the trial Court as well as the lower Appellate
Court.
40) Therefore, these applications are dismissed.
Consideration by the Court of merits
41) Coming to the RSAs themselves, I may point out that in the
judgment rendered by the trial Court in Civil Suit No.203 of
2003 on 10.01.2013, it had relied upon the findings recorded in
Civil Suit No.390 of 2001 & Civil Suit No.392 of 2001, both
decided on 31.08.2012, and took a view that the said judgments
operate as res judicata and bind it.
42) It overlooked the obvious fact that by that time, the judgments
in both the Civil Suits had been appealed on 03.10.2012 itself
to the Additional District Judge, Hamirpur, and the same had
not attained finality. It cannot be disputed that the principle of
res judicata would be inapplicable if the judgment which is
sought to be relied upon had not attained finality. Section 11 of
the CPC, itself, states that no Court should try any suit or issue
in which matter directly or substantially in issue has been
directly and substantially in issue in a former suit between the
same parties in a Court competent to try such subsequent suit
and has been heard and finally decided by such Court.
.
43) It appears that this Principle of Law has not been noticed by the
trial Judge while delivering the judgment in Civil Suit No.203
of 2003.
44) The issue as to the nature of the property was undoubtedly a
common issue in all the three suits and they all came to be tried
by the same Court and the judgment was pronounced by the
same Judge.
45) Moreover, the trial Court while delivering the judgment in
Civil Suit No.390 of 2001 and Civil Suit No.392 of 2001
having rightly observed that the onus was on the plaintiff to
prove that the property was ancestral, came to the conclusion
on the basis of Jamabandies for the year 1954-55 that the suit
land in question had come into the hands of Kishan Singh by
way of partition from his father Gopala.
46) Admittedly the previous Jamabandies had not been filed by the
plaintiff showing inheritance by Gopala from his father Ram
Saran.
47) This in my opinion was not a correct finding of fact, since
Kishan Singh could have obtained the property by partition
with his brothers, if the property was the self acquired property
.
of his father Gopala also, and no evidence had been adduced by
the plaintiff to show as to how Gopala obtained the properties.
This was the view taken by the lower Appellate Court.
48) The lower Appellate Court on perusal of the evidence on
record, came to the conclusion that the property can be traced
to Gopala during 1910-11 and there was no document on
record showing as to how Gopala acquired the property.
49) In my opinion, it rightly came to the conclusion that in the
absence of evidence, the property in the hands of Gopala, has to
be taken his self acquired property. It therefore rightly
concluded that the self acquired property of Gopala devolved
on Kishan Singh and his two brothers and continued to be self
acquired property in their hands.
50) The lower Appellate Court had also considered Ex.D-9, which
is a Will executed by Gopala, whose translation is Ex.DW-9/1
was admittedly implemented in the revenue record long back
without any objections and that this established that the
intention of Gopala was that the legatees under the Will should
get the properties as self acquired properties only.
51) The lower Appellate Court also considered the evidence of the
.
plaintiff as PW-1 and noted that he was living separately since
1993 in Tika Karohta where his wife had inherited property
from her father and concluded that the plaintiff was unlikely to
have rendered any services to his father Kishan Singh. It
believed the evidence of the defendants that the plaintiff's
conduct was callous and full of hatred and since he never
bothered to look-after Kishan Singh nor provided any
maintenance and intentionally neglected him, Kishan Singh
executed the above documents and gave substantial properties
to the defendants and gave a meager portion only to the
plaintiff under the Will.
52) The findings recorded by the lower Appellate Court are based
on evidence on record and supported by reasons, which cannot
be said to be either perverse or based on no evidence.
53) Therefore I hold that the findings recorded by the 1st Appellate
Court are proper and that it rightly held that the property in the
hands of Kishan Singh was not ancestral or coparcenery
property and was self acquired property and he was competent
to execute the Will, the two Sale Deeds and the two Gift Deeds
in question.
54) The substantial questions of law are answered accordingly
.
against the appellants.
55) Therefore, these appeals are dismissed. No costs.
56) Pending miscellaneous application(s), if any, shall also stand
disposed of.
May 03, 2024
(Yashwant)
r to (M.S. Ramachandra Rao)
Chief Justice
