Punjab-Haryana High Court
(O&M) Budh Ram And Others vs Kishan Singh &Others on 12 November, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:146181
RSA-2518-1985 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
***
RSA-2518-1985
Reserved on: 06.11.2024
Date of Pronouncement:- 12.11.2024
Budh Ram (since deceased) through his LRs and others
... Appellants
Versus
Kishan Singh (since deceased) through his LRs and others
... Respondents
CORAM: HON'BLE MR.JUSTICE VIKAS BAHL
Present: Ms.Ashish Aggarwal, Senior Advocate with
Ms.Pooja Sareen, Advocate and
Mr.Karan Singla, Advocate
for the appellants.
Mr.Amit Jain, Senior Advocate with
Mr.Anupam Mathur, Advocate and
Mr.Aryaman Thakur, Advocate
for respondent no.1/plaintiff.
VIKAS BAHL, J.
1. Table of contents:-
Title Paras Pages
Facts of the case 3-9 2-6
Arguments on behalf of the appellants 10-19 6-13
Arguments on behalf of contesting respondent 20-35 14-28
No.1/plaintiff
Rebuttal arguments on behalf of the appellants 36-37 28-29
Findings 38-88 29-76
Three substantial issues arising in the present 39 29-30
RSA
Findings with respect to substantial issue No.(i) 41-53 30-44
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Findings with respect to substantial issue No. 54-81 44-63
(ii)
Findings with respect to substantial issue No. 82-88 63-76
(iii) and conclusions
CHALLENGE IN THE PRESENT APPEAL:-
2. Defendants no.1 to 4 (presently represented by their legal
representatives) have filed the present appeal challenging the judgment and
decree dated 30.09.1978 passed by the Senior Sub-Judge, Ambala, vide
which the suit for declaration filed by the plaintiff-respondent no.1-Kishan
Singh (now represented by his LRs) has been decreed. Challenge is also to
the judgment and decree dated 30.01.1985 passed by the Additional District
Judge, Ambala, vide which the first appeal filed by the present appellants
has been dismissed.
FACTS OF THE CASE:-
3. Brief facts of the present case are that plaintiff/respondent no.1-
Kishan Singh (hereinafter to be referred as the 'plaintiff') had filed a suit for
declaration to the effect that he was the owner of the agricultural land
measuring 259 Kanals and 17 Marlas and also the agricultural land
measuring 7 kanals and 10 marlas situated in Village Anandpur Jalbera,
Tehsil Ambala, as per the jamabandi for the year 1963-64. A prayer was
also made for possession of the bara and house in dispute, which was also
situated in Village Anandpur Jalbera Tehsil Ambala as per the site plan
which was attached along with the plaint. Other prayers were also made in
the said suit.
4. It was averred in the plaint that Nathu Ram son of Hira was the
last male holder of the property in dispute and he had died issueless on
23.08.1964 and had left behind no other relatives except the plaintiff-
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Kishan Singh, who was his father's sister's son. It was further pleaded that
Smt. Nandan was the father's sister of the deceased Nathu Ram and was
married to one Tilak Ram of Village Rampur Kalan, District Patiala and that
the plaintiff, his sister Bishni and one brother Chajju were the children of
Nandan and Tilak Ram and that Nandan had died and even Chajju had died
issueless and Bishni was married in Village Ambala to Harbans but the said
Bishni and her husband had also died. It was averred that according to The
Hindu Succession Act, 1956, the plaintiff alone was the legal heir of Nathu
Ram son of Hira and nobody else had any right to the inheritance of the said
Nathu Ram deceased and that defendants no.1 to 4 had entered into the
possession of the bara and the house in dispute illegally. It was further
averred that defendants no.1 to 4 were claiming their right to possession of
the agricultural land but however they did not have any right and that on the
intervention of the village panchayat, the Tehsildar was receiving the batai
of the land in dispute and had deposited the same in the Government
treasury to be paid to the person, who would be ultimately entitled to the
same. It was further specifically pleaded that none of the defendants were in
possession of the agricultural land and that defendants no.1 to 4 had set up a
Will in their favour and defendant no.5 had also set up a Will in her favour
but it was averred therein that the factum of execution of the said alleged
Wills was strongly refuted and the alleged Wills were un-natural and
forged. On the basis of the said averments, the suit was filed.
5. Defendants no.1 to 4/present appellants had filed a written
statement in which it was stated that defendants no.1 to 4 were in
possession of the land, bara and house belonging to the deceased and were
entitled to the said property on the basis of the last Will executed by the
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deceased Nathu Ram in favour of the defendants no.1 to 4 on 20.08.1964. It
was averred that certain alleged tenants had filed false claims before the
Revenue Officer to harass the answering defendants with respect to
possession of the suit property and that as far as the Will setup by defendant
no.5 was concerned, the same was forged and fabricated. An additional plea
was taken to the effect that the present suit was not maintainable in the
present form as the plaintiff was not in possession of the suit land.
Defendant no.5 had filed her own independent written statement and in para
5 of the written statement, it had been stated that the property which was
left by the deceased was under attachment under the orders of the
Magistrate First Class in criminal proceedings. Defendant no.5 relied upon
a Will dated 19.04.1964 allegedly executed by the deceased in favour of
defendant no.5.
6. Replication was filed by the plaintiff to both the said written
statements. In the replication filed to the written statement on behalf of
defendant Nos.1 to 4, all the averments made in the written statement were
stated to be incorrect and it was further stated that the alleged will was
unnatural and forged and that the deceased did not execute any such Will
and the factum of both the execution and validity of the Will was strongly
refuted.
7. The trial Court vide order dated 13.05.1965 framed the
following issues:-
"1. Whether the suit is maintainable in the present form?
2. Whether the plaintiff has locus-standi to file the present
suit and is related to the deceased as alleged?
3. Whether the deceased Nathu Ram executed any Will in
favour of the defendants no.1 to 4 while in sound and disposing
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mind?
4. Whether Nathu Ram deceased executed a valid Will in
favour of defendant no.5 while in sound and disposing mind?
5. Whether Pal Singh son of Hira Singh is a proper party to
the suit?
6. Whether the suit is collusive?
7. Relief."
8. With respect to issue no.1, the trial Court observed that the suit
was maintainable in the present form and the arguments raised on behalf of
the present appellants/defendant Nos.1 to 4 to the effect that the same was
not maintainable was rejected. Under Issue no.2, the trial Court, after
considering the entire evidence on record observed that the plaintiff had
locus standi to file the suit and he was related to the deceased and
accordingly, decided the said issue also in favour of the plaintiff and against
the defendants. Under Issue no.3, the trial Court again after considering the
entire evidence on record, came to the conclusion that there were numerous
suspicious circumstances in the execution of the Will and thus, the Will
propounded by defendant Nos.1 to 4 could not be stated to be a valid Will
and accordingly, the issue was decided in favour of the plaintiff and against
defendant Nos.1 to 4. Issue no.4 was also decided in favour of the plaintiff
and against defendant no.5 and thus, the plea of defendant no.5 on the basis
of Will dated 19.04.1964 was also rejected. It would be relevant to note that
against the said finding, neither any appeal was filed by defendant no.5
before the Ist Appellate Court nor any appeal has been filed before this
Court. Issue Nos.5 and 6 were also decided in favour of the plaintiff and
against the defendants and accordingly, under Issue no.7, the suit of the
plaintiff was decreed.
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9. Aggrieved against the said judgment and decree, the present
appellants filed an appeal before the First Appellate Court. Vide judgment
dated 30.01.1985, the Ist Appellate Court dismissed the said appeal and
rejected all the arguments which were raised before the Ist Appellate Court
by passing a detailed judgment. The entire evidence, both oral and
documentary was re-examined by the Ist Appellate Court before dismissing
the said appeal. It is the said judgments of the trial Court as well as Ist
Appellate Court which are under challenge before this Court.
ARGUMENTS ON BEHALF OF THE APPELLANTS:-
10. Learned senior counsel for the appellants has submitted that the
judgments of the Ist Appellate Court as well as of the trial Court deserve to
be set aside and the suit filed by the plaintiff deserves to be dismissed solely
on the ground that the suit is not maintainable qua the agricultural land in
view of the provisions of Section 34 of the Specific Relief Act. It is
submitted that a perusal of the plaint would show that no relief of
possession has been sought with respect to the agricultural land and
possession has been sought only with respect to one bara and one house in
question. It is submitted that a perusal of the plaint would further show that
it has been pleaded by the plaintiff that the agricultural land was in the
possession of the tenants. It is stated that in the written statement filed on
behalf of the present appellants-defendants no.1 to 4, it has been specifically
pleaded that the suit is not maintainable in the present form as the plaintiff
is not in possession of the land in question and thus, on the said ground, the
suit was not maintainable.
11. Learned senior counsel for the appellants has referred to the
examination-in-chief of PW-1 Kartara son of Kalli Ram to show that he had
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stated on 23.05.1966, that the deceased Budh Ram at that time was
cultivating the suit land on Chakota and thus, from the above said
statement, it is apparent that it is Budh Ram-present appellant no.1, who
was admittedly in cultivating possession on 23.05.1966. Reference has also
been made to Ex.P1, which is jamabandi for the year 1963-64 to show that
in the cultivation column, the name of Nathu son of Heera has been
mentioned. Ex.D5, which is an order dated 24.11.1996 passed in Criminal
Revision no.783 of 1966 in a petition between the present appellants and
Puran etc. (who were stated to be tenants in the suit property), has been
highlighted by learned senior counsel for the appellants to show that in the
proceedings under Section 145 Cr.P.C., the observations were made in
favour of the appellants and the matter was remanded for fresh decision.
Further orders passed in the said proceedings have also been referred to by
learned senior counsel for the appellants which include the order dated
18.12.1967 which is Mark C. Learned senior counsel for the appellants has
also referred to Ex.PW4/1 in which it has been mentioned that on
17.10.1964, the land which was under the ownership of Nathu son of Heera
measuring 259 kanals 17 marlas had been taken into possession / custody
under Section 145 Cr.P.C. and the receiver had been appointed for the same.
Learned senior counsel has further relied upon the application for additional
evidence filed by the appellants i.e., CM-9136-C-2014 as well as CM-2007-
C-2014 to highlight that mutation no.3 was ordered on 07.04.1967 with
respect to ownership in favour of the present appellants and the jamabandi
for the year 1985-86 also carried the name of the present appellants in
pursuance to the said mutation. It is further argued that a part of the suit
land, to the extent of 2 kanals was also acquired and the compensation
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regarding the same was also taken by the appellants and with respect to the
same, a notice under Section 9 of the Land Acquisition Act, 1894 which
was issued on 05.10.1983 and subsequent documents thereto have also been
referred to. Reliance has also been placed upon the order Ex.D2 dated
10.10.1966 as well as Ex.D3 which were passed in the application for
correction of khasra girdawari to highlight the fact that the tenants were
held to be not in possession.
12. Learned senior counsel for the appellants has submitted that on
the basis of the above said documents, it is apparent that the plea raised by
the plaintiff in the plaint to the effect that the tenants were in possession of
the suit property was false and in fact it was Nathu who was earlier in
possession and after his death, the possession was of the present appellants-
defendants. It is submitted that in such a situation, the non-claiming of relief
of possession from the present appellants calls for dismissal of the suit in
view of the provisions of Section 34 of the Specific Relief Act, 1963. In
support of his arguments, learned senior counsel for the appellants has
relied upon the judgment of Allahabad High Court in the case of Lachhimi
Nath Pathak and another vs. Bholanath Pathak and others reported as
1964 AIR (Allahabad) 383. Learned senior Counsel for the appellants has
further submitted that once the plea under Section 34 of the Specific Relief
Act had been raised, it was incumbent upon the Court to give a finding as to
whether the plaintiff or the defendant was in possession of the property on
the date of the suit and in the present case, neither the trial Court nor the Ist
Appellate Court has given any finding regarding the same. It is submitted
that in paragraph 12, the trial Court while rejecting the objection raised on
behalf of the present appellants has apart from other aspects also observed
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that after the death of the deceased-Nathu, the property remained with the
tenant and the said finding is perverse. It is further submitted that in
paragraph 24 of the judgment of the trial Court, a decree has been passed in
favour of the plaintiff to the effect that the plaintiff is owner of the
agricultural land as detailed in the head note and is also in possession of the
land as per the entries in the revenue record. It is stated that the plaintiff is
not shown to be in possession in the revenue record and thus, the said
finding is perverse. Learned senior counsel for the appellants in support of
his argument has further relied upon the judgments of the Hon'ble Supreme
Court in the case of Venkataraja and others vs. Vidyane
Doureradjaperumal (D) Thr. Lrs. and others reported as 2014(14) SCC
502, Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust
Virudhunagar vs. Chandran & Ors. reported as 2017(2) RCR (Civil) 1
and the judgment of Jharkhand High Court in the case of Basuki Devi and
Ors. vs. Smt. Kunti Devi and Ors. reported 2023(2) JCR 245 as also the
judgment of this Court in the case of Bali Ram vs. Harinderpal Singh and
others, reported as 1982 PLR 740.
13. Learned senior Counsel for the appellants has next argued that
there is no document to establish that Nandan is daughter of Hait Ram or is
sister of Hira and that there is further no document to establish that Kishan
Singh-plaintiff is son of Nandan and Tilak Ram. In the said regard, learned
senior Counsel for the appellants has referred to Ex.P7 which is stated to be
the Kursinama in which the name of Nandan does not figure and that the
said Kursinama had not been considered by both the trial Court as well as
the First Appellate Court. It is further submitted that the plaintiff is resident
of Rajpura, District Patiala whereas the land in dispute is situated in District
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Ambala and that even as per Ex.P5 which is the copy of register of birth
produced by the plaintiff, the name of the plaintiff had been mentioned and
date of birth had been given but it was nowhere stated as to who was the
father or mother of the said Kishan Singh and in the said register, reference
had been made to "Police Station Banur" which is in District Patiala.
14. Learned senior Counsel has further referred to cross-
examination of PW3-Bakhshi son of Chhajju and has highlighted that in his
cross-examination, the said witness had submitted that it was Budh Ram-
defendant/present appellant who had performed ceremony of setting fire to
the dead body of Nathu and that from the same, it is apparent that it was the
present appellant who had performed the last rites of the said Nathu.
Learned senior Counsel for the appellants has further submitted that the
evidence of none of the witnesses examined by the plaintiff in order to
prove his relationship with Nathu meets the requirement of Section 50 of
the Indian Evidence Act, 1872. By placing reliance upon the judgment
passed by the Hon'ble Supreme Court in the case of Dolgobinda Paricha
Vs. Nimai Charan Misra and others reported as AIR 1959 SC 914, it has
been argued that in order to prove the relationship between the parties, a
person who has direct knowledge and is personally acquainted with the
facts is required to give evidence so as to make it relevant for consideration
and the person giving evidence only on the basis of hearsay could not be
considered as tendering any relevant piece of evidence for the purpose of
proving the relationship. Reference is made to the evidence of PW1 to
highlight the fact that in his evidence, he had stated that he was not related
to Nathu and that he never visited the Village where Nandan had been
married and it was his parents who used to tell him that Nandan was his Bua
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just like she was the bua of Nathu and that is why he says that she was bua
of Nathu. It is further submitted that PW1 had stated in his examination-in-
chief that it was his parents who used to tell him that Hira was son of Hait
Ram and Nandan was the daughter of Hait Ram. Learned senior Counsel for
the appellants has then referred to the evidence of PW2 and has stated that
said PW2-Inder Singh is father-in-law of plaintiff and in his evidence, he
had not stated anything about the relationship of Nandan with Nathu or
Hira.
15. With respect to evidence of PW3 i.e. Bakshi son of Chhajju,
learned senior Counsel for the appellants has submitted that in his cross-
examination, he had stated that he had no relationship with Nandan or his
husband and that he had not seen the father of Nathu as both the parents of
Nathu had died before he became major and that it had been stated that he
had heard from another person that Nathu had become unconscious about
10-12 days before his death. It is submitted that there is nothing on record
to show that he had any direct knowledge so as to specifically depose with
respect to the relationship of Nandan with Nathu or Hira. With respect to
PW5, it has been argued that the said witness in his examination-in-chief
has stated that he does not know the name of Nathu's father and in his
cross-examination, has stated that he has no information about relationship
of Kishan with Nathu and that he never visited Jalbera and at the end, he has
stated that it could not be said whether Nandan was real sister of Nathu's
father.
16. With respect to PW6, learned senior counsel for the appellant
has submitted that in his cross-examination, he could not tell the name of
any person who told him that Nandan and Nathu belonged to village Jalbera
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and that he did not join the marriage of son of the plaintiff. It is submitted
that in response to an answer to a Court question, the Court was pleased to
make a note to the effect that the witness could not give any explanation as
to why he remembered the Neonda of Nathu and not of any other person.
With respect to evidence of PW7, it has been argued that he is the real
nephew of the plaintiff and is an interested witness and he has not stated in
his evidence as to what is the source of his information and thus, cannot be
relied upon. With respect to evidence of PW8, it is argued that in the cross-
examination, the said witness had stated that he had no relationship with
Kishan Singh and he does not know the father's name of Nathu and in the
first place, he had stated that he never visited Jalbera, whereas, in the later
part of cross-examination, he had stated that he saw his father Nathu in
village Jalbera.
17. With respect to evidence of PW9, learned senior counsel for the
appellant has highlighted that the said person is from a different village i.e.
Rampura and had stated that he visited the house of Kishan Singh only once
at the time of marriage of Khushal Singh and he does not know the women
folk of his house and thus, the said witness cannot be relied upon. With
respect to evidence of PW10, it has been argued that he is known to plaintiff
Kishan Singh as is apparent from the examination-in-chief and had further
in his cross-examination stated that he did not see Nandi in the marriage of
Khushal Singh and Nathu never addressed Nandi as Bua in his presence.
With respect to PW11, learned senior counsel for the appellant has
submitted that the said witness is an interested witness as the plaintiff is the
brother of his wife. Similarly, with respect to PW12, it has been stated that
he is also an interested witness, inasmuch as, in his examination-in-chief he
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had stated that the plaintiff is his sister's husband.
18. Learned senior counsel for the appellants has argued that in the
present case, from the evidence of PW3, it has come about that Nathu had
performed three marriages and two of his wives had died during his life
time, whereas, the third had been turned out of the house by Nathu about 20
years back and that her name was Bhulli. It is submitted that in case Nathu
had a third wife then the plaintiff could raise no claim to the property and
thus, the finding of the 1st Appellate Court in para 33 would be without any
basis. It is stated that there was no plea raised by the plaintiff to the effect
that the said Bhulli had died and thus, no finding could have been returned
with respect to the same under Sections 107 and 108 of the Evidence Act.
19. It is next submitted that the Will dated 20.08.1964, which as
per their case, had been executed by deceased Nathu in favour of defendants
no.1 to 4, had been duly proved on the record. It is submitted that to prove
the said Will, the appellant had produced three attesting witnesses i.e. DW2
Ram Gopal, who was member panchayat, DW-3 Ram Kishan of village
Jalbera and DW6 Dr. Sat Pal Soni in whose presence the Will (Ex.D1) was
subscribed. It is further submitted that even DW21-Shanti Sarup Jain, who
was the handwriting expert, had duly proved his handwriting report. It is
stated that a perusal of evidence of the said witnesses shows that the Will
had been duly proved. It is further stated that the last rites of the deceased
were performed by the appellants, which fact shows that it is the appellants
who were taking care of Nathu. It is further submitted that the trial Court as
well as the Ist Appellate Court have rejected the will in an illegal manner
and have taken into consideration the points which are not relevant. It is
submitted that the will was duly proved as per Section 68 of the Evidence
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Act.
ARGUMENTS ON BEHALF OF CONTESTING RESPONDENT
NO.1-PLAINTIFF:-
20. Learned senior counsel for respondent no.1-plaintiff has
submitted that the present appeal is not maintainable and the objection
raised on behalf of the appellants with respect to Section 34 of the Specific
Relief Act, 1963 is completely misconceived. It is submitted that in the
present case, it is not in dispute that Nathu, the admitted owner of the
property, had died on 23.08.1964 and the proceedings under Section 145
Cr.P.C. were initiated on 16.10.1964 i.e., within two months of the death of
Nathu as is apparent from a perusal of Ex.PW4/1. It is further submitted that
the possession was also taken by the receiver on 17.10.1964 and thus, when
the plaintiff had filed the suit on 11.02.1965, on that day, the defendants
were not in possession and thus, the question of seeking possession from
the defendants does not arise. It is argued that a perusal of Section 34 of the
Specific Relief Act 1963 would show that a person is entitled to institute a
suit against any person denying his title etc. and in such a situation, the
Court can grant declaration with respect to the right of the plaintiff and in
such a suit, he need not claim any further relief. It is submitted that in the
present case, it was only the defendants, who were denying the title of the
plaintiff by setting up an unregistered Will which was subsequently
registered after the death of Nathu and thus, the declaration was to be
sought against the defendants. It is submitted that the question of seeking
possession from the defendants does not arise as the defendants were not in
possession on the date of the suit and thus, the case is not hit by the proviso
to Section 34 of the Specific Relief Act. It is also submitted that since
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neither the Tehsildar who was appointed as a receiver nor the State was a
party to the suit, thus, the question of claiming possession against a person
who was not a party thereto, does not arise.
21. It is submitted that with respect to the averments made in the
plaint to the effect that the tenants were in possession, it is stated that it is
not in dispute that as per the khasra girdawari with respect to the year 1964,
it was the tenants, who were shown to be in possession and the said khasra
girdawari had not been corrected till the date of filing of the instant suit i.e.
11.02.1965 and thus, the averment with respect to the tenants being in
possession was on the basis of the said revenue record i.e., khasra girdwari.
It is submitted that a reading of the entire plaint moreso paragraph 6 would
show that it is pleaded that the Tehsildar received Batai of the land in
dispute and deposited the same in the government treasury declaring that
whosoever is ultimately found entitled to the same, it would be paid to the
said person. It is further submitted that in the documents which were
produced by the defendants, there is no finding that the defendants were in
possession of the suit property on the date of filing of the suit, nor there is
any revenue record showing that the possession was there of the defendants
immediately prior to the institution of the suit and it is the date of the
institution of the suit which is the relevant date for determining the
entitlement for seeking the relevant relief. It is further stated that even the
correction of the khasra girdawari which was earlier in the name of the
tenants, was only done in the name of Nathu, who has been held to be the
predecessor-in-interest of the present plaintiff. It is also argued that there is
no order on record to show that even in the proceedings under Section 145
Cr.P.C., the defendants were held to be in possession and thus, the
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defendants-appellants cannot even take the plea that the subsequent alleged
possession of the defendants could relate back to the date of initiation of
proceedings under Section 145 Cr.P.C. Learned senior counsel for the
respondent-plaintiff has further argued that the proceedings under Section
145 Cr.P.C. have culminated in view of the statement made on behalf of the
appellants herein and in the said proceedings, there is no finding that the
present appellants-defendants herein were in possession of the property at
the time of initiation of proceedings under Section 145 Cr.P.C. It is further
highlighted that in the said order dated 18.12.1967, it is nowhere
said/directed that the possession is being handed over to the defendants. It is
submitted that even in case as an interim measure, the Tehsildar had leased
out the property to the defendants, the same would not show that on the date
of initiation of proceedings under Section 145 Cr.P.C., the defendants were
in possession, moreso in the absence of any specific finding regarding the
same and thus, the defendants cannot take the plea that they were in
possession of the property at the time of initiation of said proceedings under
Section 145 Cr.P.C. and at the time of filing of the suit. In support of his
arguments, learned senior counsel for the respondent has relied upon the
judgments of the Hon'ble Supreme Court of India in the case of Deo Kuer
and another vs. Sheo Prasad Singh and others reported as 1966 AIR
(Supreme Court) 359 and in the case of Akkamma & Ors. vs. Vemavathi &
Ors. reported as 2022 (1) R.C.R. (Civil) 299 and judgment of Allahabad
High Court in the case of Jagdish vs. Rajendra reported as 1975 AIR
(Allahabad) 395.
22. Learned senior counsel for respondent no.1 has submitted that
with respect to Smt. Nandan being the sister of Hira and the plaintiff Kishan
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being son of Nandan, the pleadings and the evidence on record fully
establish the relationship. Reference in this regard has been made to para 3
of the plaint where specific averments have been made by the plaintiff to
the effect that Smt. Nandan was the father's sister of the deceased and was
married to Tilak Ram of village Rampur Kalan, district Patiala and that the
plaintiff was one of the children of Nandan and even the details of the other
children were also given and the said specific averments in plaint were not
specifically denied as were required to be denied in view of the provisions
under Order 8 Rule 3 & 5 of CPC and were only vaguely denied, amounting
to an evasive denial. It is further submitted that the reason for Nandan to be
residing in District Patiala was that she was married to Tilak Ram, who was
a resident of village Rampur Kalan in district Patiala and the said aspect has
not been specifically denied.
23. Learned senior counsel for respondent no.1 has further
highlighted that a perusal of the evidence of DW-11 Budh Ram, who is
defendant no.1 in the suit, would show that he has specifically admitted that
he is not related to Nathu and that Nathu used to tell him that his father had
a sister. It is argued that from the said cross-examination the stand taken by
the appellant stands falsified as it had been the case of the appellant that the
said Nathu had no sister. It is further submitted that reliance upon the
Kursinama by the appellant to state that there is no sister of Nathu stands
falsified from the abovesaid admission made by DW-11 and that a perusal
of the Kursinama (Ex.P7) would show that the same is only showing the
male lineal descendents and no female has been shown in the said chart.
24. The first piece of oral evidence which has been highlighted by
learned senior counsel for the respondent-plaintiff to prove the relationship
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in question is the evidence of PW-1, Kartara son of Kalli Ram, who is stated
to be 70 years of age as on 23.05.1966 and thus on the date of death of
Nathu, which took place in the year 1964, was around 68 years of age. It is
further submitted that the said Kartara was the resident of village Jalbera,
which is the same place where Nathu used to reside and it has come in the
cross-examination of the said witness that the house of Nathu was about one
furlong from his house and, thus, the said Kartara had specific knowledge
about the relationship of Nathu and the plaintiff and also Nandan. It is
submitted that the said witness has specifically stated in his examination-in-
chief that Nathu son of Hira, was of his village and he died about 1¾ years
ago and that the said Hira had a sister, which was named as Nandan and that
Hait Ram was the father of Hira and Nandan and had further stated that the
plaintiff Kishan Singh and Nandan used to visit their village at the house of
Nathu and that Nathu used to address Nandan as his Bua and even the said
PW-1 used to address her as Bua. It is further stated by him in his cross-
examination that Hait Ram had only one daughter named Nandan, and
Nandan had only one son i.e. Kishan Singh plaintiff and that he saw Kishan
Singh plaintiff in village Jalbera, where he used to come frequently. It has
been submitted that the said evidence has rightly been relied upon by both
the Courts to establish their relationship.
25. It is further submitted that even PW-2 Inder Singh son of Garja
Singh has specifically stated that he had seen Nathu Ram at the time of
marriage of his son and that his daughter was married to the son of the
plaintiff Kishan Singh and that he had visited the house of the plaintiff at
Rampur about 2 or 4 times and there he had met Nathu. It is submitted that
counsel for defendant no.4 had not put any question to said Inder Singh and
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thus the examination-in-chief of said Inder Singh had gone unrebutted.
26. Learned senior counsel for the respondent has next referred to
the evidence of PW-3 Bakhshi son of Chhajju, who was stated to be 65
years of age as on 16.06.1966 and who was also the resident of village
Jalbera, which is the same village where the said Nathu resided and even in
the examination-in-chief he had specifically stated that he knew Nathu ,
who was of his village and that his father's name was Hira and that Hira had
a sister, whose name was Nandan and that Hira and Nandan's father's name
was Hait Ram and Nandan was married at village Rampur to one Tilak
Ram. It is further specifically stated by him that Kishan Singh along with
Nandan used to visit their village and stay with Nathu and Kishan Singh
used to address Nathu as Bhai and Nathu also used to address Nandan as
Bua.
27. Learned senior Counsel for the respondent has next referred to
the evidence of PW5-Mal Singh son of Dasaunda Singh, who was stated to
be 70 years of age as on 07.07.1966 and was a resident of Rampur which is
the matrimonial home of Nandan and has highlighted that he had
specifically stated that he knew the plaintiff and his mother Nandan and her
brother's son Nathu and that the said Nathu came to Kishan Singh-plaintiff
on the occasion of the marriage of his son and he used to stay there for 10-
12 days and he used to call Nandan as his Bua and used to address Krishan-
plaintiff as his brother. It was further pointed out that it was specifically
stated in his evidence that on the marriage of Khushal Singh son of plaintiff,
Nathu gave Rs.21/- as Nankay (shagun from maternal side) and that Nandan
also used to visit Jalbera and stay there for one month or so with Nathu. It is
also pointed out that PW6-Allah Dia was also 65 years of age and was
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resident of Village Rampur and his evidence is also on similar lines as that
of PW5 and thus, is relevant. Reference has also been made to the evidence
of PW7-Pritam son of Harbans who was related to the plaintiff as plaintiff
was his real maternal uncle and he in his examination-in-chief had
specifically stated that Nathu used to visit Nandan on the occasion of
marriages etc. and also used to stay with her for a month or so and that
Nathu used to address Nandan as his Bua.
28. It is submitted that even PW8 Arjan son of Mansa, who is
stated to be a resident of village Azizpur which is situated at a distance of
1¼ miles from Rampur, had also given specific evidence with respect to the
relationship of the plaintiff with Nathu and Nandan, which is also relevant
to prove their relationship. It has been pointed out that to a similar effect is
the evidence of PW9, who was a resident of a village adjacent to the Village
Rampur and had also specifically stated that he attended the marriage of
Khushal Singh, son of the plaintiff and that Nathu son of maternal uncle of
Kishan Singh had also attended the marriage. It is argued that even PW10
Babu Singh had given evidence in the same manner as PW8 and PW9 and
the said Babu Singh was a resident of Bohori and he had attended the
marriage of Chhatero daughter of Kishan Singh (plaintiff), which was also
attended by Nathu. It is submitted that evidence of PW11 Jamiayat Singh is
relevant for proving the relationship, inasmuch as, he was 70 years of age as
on 06.10.1966 and had specifically stated that the plaintiff's mother was
Nandan, who belonged to village Jalbera and that Nathu was Nandan's
brother's son and that he met Nathu in Kishan Singh's house and that Nathu
addressed Kishan Singh as his brother and that he attended the wedding of
daughter of Kishan Singh which was also attended by Nathu, who
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contributed Rs.35/- by way of "Neonda" in her marriage and the entries
regarding the same were written by him and the original bahi was duly
exhibited as PW11/1 and the true translation of the same has been exhibited
as Ex.PW11/T. It is further submitted that PW12 Jiwa Singh son of
Bhagwana had also proved the relationship of the parties and he was also a
relative of the plaintiff Kishan Singh and thus, had personal knowledge
about the relationship of the parties and in addition to other aspects, he had
further stated that Nathu had left behind no other relative except the
plaintiff.
29. Learned senior Counsel for the respondents has further stated
that PW13-Kishan Singh-plaintiff had given elaborate evidence with respect
to the relationship of the parties and also on all other relevant aspects and
no question in the cross-examination has been put to the plaintiff with
respect to the relationship between Nandan and Nathu or the plaintiff's
relationship with Nandan and thus, the said fact along with pleadings as
well as other evidence would clinchingly show that the plaintiff was the son
of Nandan and Nandan was the sister of Hira and was Bua of Nathu as
Nathu was son of Hira and thus, the relationship of the parties was duly
established.
30. Learned senior Counsel for the respondents has submitted that
a perusal of Section 50 of the Indian Evidence Act, 1872 would show that
the phrase used in the said Section is to the effect that "any person", who
either "as a member of the family" or "otherwise", has special means of
knowledge as to the existence of the relationship, can give evidence with
respect to the said relationship and the said provision does not restrict that
the evidence only of the members of the family is relevant. It is further
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submitted that even Illustration (a) to Section 50 of the Indian Evidence Act
would clearly show that even in case friends have received and treated two
persons as husband and wife then the same would be a relevant fact and
thus, even the evidence of the said friends would be relevant to prove the
relationship. It is submitted that in the present case, the present plaintiff has
produced several witnesses from both the villages where the deceased
Nathu was residing and where Nandan his Bua was married and the said
witnesses had clearly deposed that they had seen the said Nathu calling
Nandan as his Bua and thus, the said witnesses who had witnessed the said
conduct had special means of knowledge to give evidence with respect to
the said relevant fact. It is submitted that both the Courts have concurrently
found on the basis of the said evidence that the relationship between the
said parties is proved and that there is no perversity or illegality in the said
finding so as to call for interference in the present Regular Second Appeal.
In support of his arguments, learned senior Counsel for the respondents has
relied upon the judgment of the Coordinate Bench of this Court passed in
RSA-619-1968 decided on 22.11.1978 titled as Baljit Kaur Vs. Tara Singh
reported as 1979 CLJ (Civil), 416 to contend that the finding of relationship
is a finding of fact and the same is not to be interfered with by the Court in
the Regular Second Appeal.
31. Further reliance has also been placed upon the judgment of the
Full Bench of this Court in RSA-444-1965 decided on 31.01.1972 titled as
Amar Singh etc. Vs. Chhajju Singh etc. reported as 1972 PLR 625 in
support of his arguments to the effect that a witness could appear in the
Court to make a statement in order to prove the conduct of another, in case
he has special means of knowledge about the disputed relationship of one
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person to another.
32. Learned senior Counsel for the respondent no.1 has further
submitted that apart from the fact that due execution of the Will has not
been proved, there were several suspicious circumstances calling for
rejection of the Will. It is submitted that the said circumstances are as
follows:-
i) None of the beneficiaries under the Will are related to the
testator. In this regard, it is submitted that the said fact is not a
disputed fact and even DW11-Budh Ram in his cross-examination
has reiterated the said fact.
ii) It is stated that there is nothing on record to even remotely
show that defendant no.4 is related to defendant Nos.1 to 3 and thus,
the question of execution of the Will in favour of different persons,
not related to each other, casts a very serious suspicion on the
execution of the Will.
iii) It is pointed out that there is no plea taken in the written
statement filed by defendant Nos.1 to 4/present appellants to the
effect that they were rendering any service to the deceased-Nathu in
lieu of which the deceased might have executed a Will in their favour.
The sole defendant (i.e., defendant no.1-Budh Ram) who appeared in
the witness-box as DW11 also did not give any evidence with respect
to any service rendered by defendant Nos.1 to 4 to the said deceased.
iv) As per the record, the deceased was not keeping good health
and had died within three days of the execution of the alleged Will,
inasmuch as the alleged Will is stated to have been executed on
20.08.1964 whereas the death of the deceased had taken place on
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23.08.1964. It is further pointed out that as per Ex.P3 which is a copy
of the register of death, the date of death of deceased Nathu son of
Hira Ram was mentioned as 23.08.1964 and it was stated that he had
been sick for the last 6 years.
v) The beneficiaries i.e., defendants no.1 to 4 have actively
participated in the execution of the Will. The said fact is apparent
from the evidence of witnesses. Reference has been made to the
evidence of DW-1 Bodh Parkash, Scribe, in which he had specifically
stated that defendants no.1 to 4 were also present at the time when the
Will was scribed and the same was done at the shop of Dr.Satpal. A
further reference to the evidence of DW-11 Budh Ram shows that in
his cross-examination, the said witness had stated that he was present
at the time of execution of the Will.
vi) DW-1 Bodh Parkash, deed writer, who had scribed the Will
Ex.D1, had specifically stated in his cross-examination that the
attesting witnesses had not put their attestation mark in his register
nor they were asked to do so.
vii) The deceased-Nathu was admittedly a resident of Jalbera and
Jalbera is at a distance of 4 miles from Ambala city and yet the Will
was scribed at Ambala City at the shop of Dr.Satpal. In the said
regard, evidence of DW-1 scribe has been highlighted where he had
stated that Jalbera is 4 miles from Ambala City. Reference has also
been made to the evidence of DW-11 Budh Ram defendant no.1, who
in his cross-examination had stated that when a person starts from
Anantpur Jalbera, the Court falls in the way before one reaches to Dr.
Satpal Soni's Clinic.
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viii) PW-14 Agya Ram Sharma, Inspector of Police (retired), who
had worked in the Fingerprint Bureau, Phillaur for 32 years, had
proved on record the report of the Bureau as Ex.PW14/2 in which it
has been stated that the thumb impression Mark X could not be
compared on account of being ink smudged and fade. (page 535/336
of the record of the trial Court).
ix) DW-11 Budh Ram in his cross-examination had stated that no
rough Will was written and the scribe went on writing what was
stated by Nathu and had further admitted that Nathu was illiterate. It
is submitted that a perusal of the Will, would show that certain
technical words have been used in the said Will which could not have
been dictated by an illiterate person. Reference in this regard has been
made to paragraph 26 of the judgment of the Appellate Court which
observations have not been rebutted or disputed on behalf of the
appellants.
x) DW-11 Budh Ram defendant had further in his cross-
examination stated that he did not suggest on the said date that the
Will should be registered before the Sub Registrar. It is to be noted
that once as per the case of defendants no.1 to 4, such an effort was
made to take everybody from village Jalbera to Ambala City, then it
is surprising that the Will was not got registered during the life time
of the deceased and thus, the registration of the Will after the death of
the deceased would not in any way further the case of defendants no.1
to 4.
xi) It is further submitted that DW-11 in his cross examination had
stated that the Will was scribed in the consulting room of Dr.Satpal
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and while the Will was being scribed, the doctor was attending his
clients also and was also watching the scribing of the Will. It is stated
that on the other hand, DW-6 Dr.Satpal Soni had stated that the Will
was executed in his consulting room and that he had reached the
room after the Will had been scribed and that he did not know the
name of the person, who had scribed the Will and had further stated
that in between the consulting room and in the sitting room, there was
a door and a curtain had been hung behind the door and the person
sitting in the consulting room was not visible from the outside.
33. It has been pointed out that DW6 Dr.Satpal Soni had stated that
he had signed the Will (Ex.D1) with his blue ink and had further admitted
that in the other proceedings he had stated that he had signed with black ink
and that further he did not know as to who had paid the fees to the scribe
and that he did not see any jamabandi and further he did not notice whether
other witnesses had put their thumb marks or signatures and that his
signatures were not obtained by the scribe in his register. It is further
highlighted that the said witness had stated that it was defendant no.1 Budh
Ram who had told him that Nathu was to be given some medicine and also
wanted to execute a Will and that he attested the Will as a medical expert
but did not issue any certificate of medical fitness to Nathu or Budh Ram
and that that he did not know the meaning of the word "Miker" and did not
follow what was written in the said Will nor made any effort to know its
contents. It is argued that DW2 Ram Gopal son of Mangal Singh, who was
stated to be one of the attesting witnesses of the Will, had been found to be
a very clever witness and the said fact had been recorded by the Court after
putting questions to him. In response to the Court question, the said witness
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had stated that Nathu had died in the village on the 3rd/4th day of the
execution of the Will (Ex.D1) on account of illness and thereafter had
immediately stated that he cannot say that he died on account of illness and
that Nathu was brought to Ambala City in a Tonga and that it is thereafter
that the said observations had been made by the Court. It is further stated
that DW2 had stated that his house was at a distance from the house of
Nathu and that he belonged to a different Patti.
34. It is argued that DW3 Ram Kishan son of Chetu, who is stated
to be an attesting witness to the Will Ex.D1, had stated in his cross-
examination that Nathu was ill with Asthma for about 2 or 3 months before
his death and that he was an old man of 75 years of age and was rather spent
up and had been suffering from Asthma since long and thus, he had also
proved that said Nathu was not well. It has been pointed out that the said
DW3 had stated in his cross-examination that he did not know any relation
of Nathu and that he did not see Nathu's father and did not know where
Nathu was married and had further stated that all the persons including the
scribe had reached the shop of Dr. Satpal together, which evidence was
contrary to the evidence of DW2 Ram Gopal, who had specifically stated
that the scribe had come to the shop of Dr. Satpal after his reaching there. It
is submitted that the abovesaid witnesses produced by the defendant Nos.1
to 4 are not trustworthy and do not prove the due execution of the Will, nor
explain the various suspicious circumstances.
35. Learned senior counsel for respondent no.1 has relied upon the
judgment of the Hon'ble Supreme Court in case titled as "B. Venkatamuni
Vs. C.J. Ayodhya Ram Singh and others:, reported as 2007 AIR (Supreme
Court) 311 in support of his argument to the effect that the Will does not
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stand proved by proof of legal formalities without looking into the
suspicious circumstances surrounding the Will. Reliance has also been
placed upon the judgment of the Hon'ble Supreme Court in case titled as
"Thangam and another Vs. Navamani Ammal", reported as 2024 INSC
164 and upon the judgment of the Hon'ble Supreme Court in case titled as
"Rur Singh (D) Th. LRS. & Ors. Vs. Bachan Kaur, reported as 2009(11)
SCC 1 to argue that the finding on a Will is a finding of fact and calls for no
interference. It would be relevant to note that the only contesting respondent
in the present case is respondent No.1 who is the plaintiff. Respondent No.2
was co-defendant as she was defendant No.5 in the main suit and she had
setup her own Will allegedly executed by deceased Nathu in her favour and
the trial Court had rejected her claim and no further appeal was filed by her
before the First Appellate Court nor any appeal has been filed before this
Court and thus, apparently she is not a necessary party. Respondent Nos.3
and 4 in the present case are widow and son of Ram Partap and the said
Ram Partap was defendant No.3 in the main suit and Bant Singh son of Ram
Partap through his legal representatives as well as Bant Kaur daughter of
Ram Partap who are appellant Nos.4 and 5 in the present appeal and Mewa
son of Ram Partap through his legal representatives, represented the estate
of the said Ram Partap and thus, even the other LRs of defendant No.3 i.e.,
respondent Nos.3 and 4 are not necessary parties.
REBUTTAL ARGUMENTS ON BEHALF OF THE APPELLANTS:-
36. Learned senior counsel for the appellant in rebuttal has
submitted that the statement of PW13 had been recorded in vernacular as
well as in English language and a perusal of the statement of PW13
recorded in vernacular which appears at page 231-232 of the record shows
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that his age has been recorded as 85 years, whereas, in the birth certificate
produced (Ex.P5), his date of birth has been recorded as 27.04.1988. It is
further submitted that as per the respondents, the said Kishan Singh/plaintiff
had died on 13.01.1991, as is apparent from CM-1062-C-1999, which was
filed for bringing on record LRs. of the deceased Kishan Singh. It is argued
that in the said circumstances, the plaintiff would have died at an age of
more than 110 years.
37. It is further pointed out by learned senior Counsel for the
appellants that PW13-Kishan Singh-plaintiff in his cross-examination, had
stated that a month before his death, Nathu had stayed with him and that he
was in perfect health for the last time he stayed with him and that Nathu
remained ill for only 2-3 days and thus, it could not be said that Nathu was
ill at the time of execution of the Will.
FINDINGS:-
38. This Court has heard the learned senior counsel for the
appellants and learned senior counsel for respondent no.1 and has perused
the paper book.
THREE SUBSTANTIAL ISSUES ARISING IN THE PRESENT RSA:-
39. On the basis of arguments raised on behalf of the appellants
and the contesting respondent no.1, the following three substantial issues
arise for consideration before this Court:-
i) Whether the suit of the plaintiff qua the agricultural land
was maintainable in the light of the provisions of Section 34 of
the Specific Relief Act, 1963.
ii) Whether the concurrent findings of the trial Court and
the Ist Appellate Court to the effect that Nandan is the sister of
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Hira and Kishan plaintiff is the son of Nandan, suffer from any
illegality / perversity so as to call for interference by this Court.
iii) Whether the findings of the trial Court and the Ist
Appellate Court on issue no.3, discarding the Will propounded
by defendants no.1 to 4 in their favour allegedly executed by
the deceased Nathu Ram, call for an interference in the present
appeal.
40. This Court would be adjudicating each of the above said three
substantial issues separately.
FINDING WITH RESPECT TO SUBSTANTIAL ISSUE NO.1:-
i) Whether the suit of the plaintiff qua agricultural land was
maintainable in the light of the provisions of Section 34 of the Specific
Relief Act, 1963.
41. The first plea raised on behalf of the appellants for setting aside
the judgment and the decree of the trial Court and the Ist Appellate Court is
to the effect that the suit of the plaintiff in the form, in which it was filed
was not maintainable qua the agricultural land in view of the provisions of
Section 34 of the Specific Relief Act. Before considering the said argument,
it would be relevant to refer to Section 34 of the Specific Relief Act, 1963
which is reproduced hereinbelow:-
"34. Discretion of court as to declaration of status or right.--
Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying,
or interested to deny, his title to such character or right, and
the court may in its discretion make therein a declaration that
he is so entitled, and the plaintiff need not in such suit ask for
any further relief:Provided that no court shall make any such
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declaration where the plaintiff, being able to seek further
relief than a mere declaration of title, omits to do so.
Explanation.--A trustee of property is a "person interested to
deny" a title adverse to the title of some one who is not in
existence, and for whom, if in existence, he would be a trustee.
"
A perusal of the above provision would show that any person
entitled to any legal character or to any right as to any property, has the
right to institute a suit against any person denying the same and the Court
in its discretion can make a declaration that he is so entitled and in such a
suit, the plaintiff is not required to seek any further relief. The emphasis of
the learned senior counsel for the appellants is on the proviso which
provides that no Court would make any declaration where the plaintiff,
being able to seek further relief than a mere declaration of title, omits to do
so. It is the case of the appellants that the plaintiff-respondents should have
filed the suit for possession with respect to the agricultural land also. The
said arguments have been vehemently opposed on behalf of the respondent-
plaintiff and have been rejected by the trial Court as well as the Ist
Appellate Court.
42. It is not in dispute in the present case that Nathu is the admitted
owner of the property and had died on 23.08.1964. It is also not in dispute
that vide order dated 17.10.1964, the suit land which was under the
ownership of the said Nathu son of Heera had been taken in possession /
custody by the Government in the proceedings under Section 145 Cr.P.C.,
and a receiver was appointed in the said proceedings. The said fact is
apparent from Ex.PW4/1, which is the document, which has been jointly
relied upon by learned senior counsel for the appellants and learned senior
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counsel for respondent no.1 and the same has been jointly submitted along
with its true translation, which has been taken on record as Mark X on
29.10.2024 by this Court. The translated copy as given by both the senior
counsels, reads as under:-
"18th October 1964, According to 6th Kartak Shaka Sammat
As per the order of Ld.Magistrate Ist Class, Ambala on
17.10.64 the land under the ownership (Bila Rahan) of Nathu
son of Hira r/o Anandpur Mabrah measuring 259K-17M. The
government has taken in its possession / custody u/s 145 /
Cr.P.C. of Police Station, Sadar, Ambala on which Mahall,
Ambala, has been appointed as Receiver.
SD/- In Eng.
Tehsildar
1. Note: As per application of applicant copy has been
prepared.
2. Copy is correct as per original.
3. Fee has been received under rule 0-40.
SD/- In Eng.
Tehsildar 1.3.66"
43. It is also not in dispute that the suit was filed on 11.02.1965, on
which date, the said proceedings under Section 145 Cr.P.C. were continuing
and thus, it could not be said that the defendants were in possession of the
suit land and rather the same was under the possession and control of the
receiver/State. The said receiver / State was not a party to the suit and thus,
the question of the plaintiff seeking possession with respect to the
agricultural land did not arise. As is apparent from Section 34 of the
Specific Relief Act, 1963 which has been reproduced hereinabove, a person
is entitled to institute a suit against any person denying his title and in such
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a situation, the court has power to grant the said declaration with respect to
the right of the plaintiff and in such a suit, no further relief is required to be
prayed for. In the present case, as per the case in the plaint, it is only the
defendants, who are denying the title of the plaintiff by setting up Wills in
their favour and thus, the declaration has been sought by impleading the
defendants as parties. Since it is proved beyond doubt that on the date of the
filing of the suit, the defendants were not in possession of the agricultural
land, thus, the question of the plaintiff seeking any relief of possession from
them does not arise and it cannot be said that in the said facts and
circumstances, the plaintiff was in a position to seek further relief of
possession from the defendants and thus, the suit would be maintainable in
the form and would not be barred in view of the provisions of Section 34 of
the Specific Relief Act.
44. In this regard, it would be relevant to take note of the judgment
of the Hon'ble Supreme Court in the case of Deo Kuer and another (supra)
in which the Hon'ble Supreme Court while considering a similar plea as has
been raised on behalf of the appellants herein, observed that the suit would
not be hit by the proviso to Section 42 of the Specific Relief Act, 1877,
(which was para materia to the proviso to Section 34 of the Specific Relief
Act, 1963) and had further observed that in a suit for declaration of title or
property which stands attached under Section 145 of the Cr.P.C., it was not
necessary to ask for further relief of delivery of possession as it is the
Magistrate who has the possession and not the defendant and the defendant
is not in a position to deliver the possession to the plaintiff. It was further
observed that relief claimed in the suit was against the defendant only and
when the property was "in custodia legis", it was not necessary to ask for
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possession. The relevant portion of the said judgment is reproduced
hereinebelow:-
"3. The only point argued in this appeal was whether in
view of the attachment, the appellants could have in their suit
asked for the relief for delivery of possession to them. If they
could not, the suit would not be hit by the proviso to Section
42. The parties seem not to dispute that in the case of an
attachment under Section 146 of the Code as it stood before its
amendment in 1955, a suit for a simple declaration of title
without a prayer for delivery of possession is competent. The
respondents contend that the position in the case of an
attachment under Section 145 of the Code is different, and in
such a case the magistrate holds possession for the party who
is ultimately found by him to have been in possession when the
first order under the section was made. It was said that a suit
for declaration of title pending such an attachment is
incompetent under the proviso to Section 42 unless recovery of
possession is also asked for. It appears that the attachment
under Section 145 in the present case is still continuing and no
decision has yet been given in the proceedings resulting in the
attachment.
4. In our view, in a suit for declaration of title to property
filed when it stands attached under s. 145 of the Code, it is not
necessary to ask for the further relief of delivery of
possession. The fact if it be so, that in the case of such an
attachment, the magistrate holds possession on behalf of the
party whom he ultimately finds to have been in possession is, in
our opinion, irrelevant. On the question however whether the
magistrate actually does so or not, it is unnecessary to express
any opinion in the present case.
5. The authorities clearly show that where the defendant
is not in possession and not in a position to deliver possession
to the plaintiff it is not necessary for the plaintiff in a suit for
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a declaration of title to property to claim possession:
see Sunder Singh Mallah Singh Sanatan Dharm High
School, Trust v. Managing Committee, Sunder Singh-Mallah
Singh Rajput High School, 65 Ind App 106. Now it is obvious
that in the present case, the respondents were not in
possession after the attachment and were not in a position to
deliver possession to the appellants. The magistrate was in
possession, for whomsoever, it does not matter, and he was
not of course a party to the suit. It is pertinent to observe that
in Humayun Begam v. Nawab Shah Mohammad Khan, AIR
1943 Privy Council 94 it has been held that the further relief
contemplated by the proviso to Section 42 of the Specific
Relief Act is relief against the defendant only. We may add
that in K. Sundaresa lyer v. Sarvajana Sowkiabil Virdhi Nidhi
Ltd., ILR (1939) Madras 986, it was held that it was not
necessary to ask for possession when property was in custodia
legis. There is no doubt that property under attachment under
Section 145 of the Code is in custodia legis. These cases
clearly establish that it was not necessary for the appellants to
have asked for possession.
6......The suit for a declaration without a claim for the relief
for possession would still be competent in the view taken in
the cases earlier referred to, which is, that it is not necessary
to ask for the relief of delivery of possession where the
defendant is not in possession and is not able to deliver
possession, which, it is not disputed, is the case when the
property is under attachment under Section 145 of the Code.
We think that Dukkan Ram's AIR 1961 Patna 425 case had not
been correctly decided. We may add that no other case taking
that view was brought to our notice.
7. For these reasons, we hold that the suit out of which
this appeal has arisen was competent. We, therefore, allow the
appeal but as the merits of the case had not been gone into by
the High Court, the matter must go back to that Court for
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decision on the merits. The appellant will get the costs here
and below."
45. The Hon'ble Supreme Court of India in the case of Akkamma
& Ors. (supra) had observed that once the ownership of the original
plaintiff was proved, then the plaintiff was entitled to a declaration to the
said effect and there was no bar in granting such a decree for declaration
and the same could not be denied on the reasoning that no purpose would be
served in giving such a declaration as the said declaratory decree would be
non-executable and the same being non-executable could not be the reason
alone for non grant of declaration. It has further been observed that grant of
the said declaratory decree cannot be refused solely on the ground that the
plaintiff has failed to establish his case for further consequential relief and
that there was no bar in the Specific Relief Act 1963 in granting a
standalone declaratory decree. The relevant portion of the said judgment is
reproduced hereinbelow:-
"17.......There is no bar in the Specific Relief Act, 1963 in
granting standalone declaratory decree. The Trial Court came
to a positive finding that the original plaintiff was the owner of
the suit property. But it held that in absence of declaration of
relief of possession by the plaintiff, declaration of title cannot
be granted. We have already expressed our disagreement with
this line of reasoning. It seems to be a misconstruction of the
provisions of Section 34 of the 1963 Act. The Trial Court and
the High Court have proceeded on the basis that the
expression "further relief" employed in that proviso must
include all the reliefs that ought to have been claimed or
might have been granted. But in our view, that is not the
requirement of the said proviso.....
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18. The High Court has proceeded on the footing that in the
subject-suit, the original plaintiff must have had asked for
relief for recovery of possession and not having asked so, they
became disentitled to decree for declaration and possession.
But as we have already observed, the proviso to Section 63 of
the 1963 Act requires making prayers for declaration as well
as consequential relief. In this case, if the relief on second
count fails on merit, for that reason alone the suit ought not to
fail in view of aforesaid prohibition incorporated in Section
34 of the 1963 Act.
19. .......But as the Trial Court found ownership of the
original plaintiff was proved, in our view the original plaintiff
was entitled to declaration that he was the absolute owner of
the suit property. There is no bar in granting such decree for
declaration and such declaration could not be denied on the
reasoning that no purpose would be served in giving such
declaration. May be such declaratory decree would be non-
executable in the facts of this case, but for that reason alone
such declaration cannot be denied to the plaintiff. Affirmative
finding has been given by the Trial Court as regards ownership
of the original plaintiff over the subject property. That finding
has not been negated by the High Court, being the Court of
First Appeal. In such circumstances, in our opinion, discretion
in granting declaratory decree on ownership cannot be
exercised by the Court to deny such relief on the sole ground
that the original plaintiff has failed to establish his case on
further or consequential relief.
20. In these circumstances, we sustain the judgment of the High
Court that the plaintiffs were not entitled to injunctive relief as
prayed for and also the rejection of the plaintiffs' plea for
introduction of relief for possession. But at the same time, we
set aside that part of the judgment by which it has been held
that the plaintiffs were disentitled to declaration of ownership
of the property. We accordingly hold that the plaintiffs are
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entitled to declaration that they are owners of the suit property
and there shall be a decree to that effect."
Thus, in view of the law laid down in the abovesaid judgment,
the arguments raised on behalf of learned counsel for the appellants to the
effect that the decree passed in favour of the plaintiff deserves to be set
aside on the ground that the same is not executable, is rejected.
46. To the similar effect, it is the judgment of the Allahabad High
Court in the case of Jagdish (supra) in which it was observed that on the
date when the suit was instituted by the plaintiff, the plaintiff was not
required to claim the relief of possession as the property was in the
possession of the Court.
47. In addition to the above, it would also be relevant to note that
there is no finding in the proceedings under Section 145 Cr.P.C. to the
effect that the present appellants-defendants no.1 to 4 were in possession of
the agricultural land in question on the date of institution of the said
proceedings or even on the date of the suit. A perusal of the orders Ex.D2,
D5 as well as Mark C which have been relied upon by the learned senior
counsel for the appellants would show that in none of the said orders, there
was any finding to the effect that the present appellants were in possession
of the suit property on the date of institution of the said proceedings or the
suit. Ex.D2 is an order dated 10.10.1966 passed by the Assistant Collector
2nd Grade, Ambala in a case which was instituted on 09.07.1965 i.e., after
the institution of the suit which was instituted on 11.02.1965. In the said
order, the plaintiff was not a party and the same pertains to an application
for correction of khasra girdawari relating to Khariff 1964 in respect of the
suit land, which was stated to be filed by the present appellants against one
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Puran, Inder, Nourata and Shantu. In the said application, the corrections of
the entries in the khasra girdawari relating to Khariff 1964 were sought and
it was observed by the Assistant Collector Ist Grade, Ambala that it was the
case of both the sides that the admitted owner of the land in dispute was
Nathu, who had died on 23.08.1964 when the crop had already been sown
and the earlier crops had also been sown by Nathu himself and thus, it was
observed that it was natural that crops in dispute were also cultivated by
him and thus, the girdawari should have been recorded in his name and not
in the name of the tenants and accordingly, it was ordered that girdawari for
the kharif 1964 harvest be recorded in the name of Nathu deceased, who
had actually sown the crop. In the said order, there is no finding that the
present appellants are or were in possession on the date of institution of the
proceedings or even the suit. A perusal of the said order also explains the
averments made in the plaint to the effect that prior to the Tehsildar having
been appointed, the agricultural land was in possession of the tenants
inasmuch as, it is not disputed that the khasra girdawari for Khariff 1964 on
the date of filing of the suit i.e., 11.02.1965 was in favour of the said tenants
and its correction was only carried out on 10.10.1966 i.e., after the filing of
the suit.
48. Even a perusal of Ex.D5, which was also relied upon on behalf
of the appellants would show that the same is an order dated 24.11.1966
passed in criminal revision by a Co-ordinate Bench of this Court, in which,
the plaintiff was not a party. The said revision arises from the proceedings
under Section 145 of Cr.P.C. and a perusal of the said order would show
that it was observed that the trial magistrate after recording the evidence of
the parties had observed that earlier the tenants were in possession of the
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property and while doing so, had primarily relied upon the khasra girdawri
relating to kharif 1964 and since the said khasra girdawari with respect to
kharif 1964 had been corrected vide Ex.D2, it was suggested by both the
parties that the matter be remanded to the trial Magistrate for recording the
evidence of the parties and to give a fresh finding regarding possession.
Even in the said proceeding, there was no finding that the present appellants
were in possession of the suit property at the time of institution of the suit
or at the time of institution of the proceedings under Section 145 CrPC.;
Mark 'C' which is the order dated 18.12.1967 passed by the Magistrate Ist
Class Ambala and which has been passed after the said remand order dated
24.11.1966 and has been relied upon on behalf of the appellants would also
show that in the said case, the respondent/plaintiff was not a party.
Moreover, even in the said proceedings no adjudication was done as the
counsel appearing for the present appellant/defendants, who were
respondents therein had stated that since the correction of khasra girdawari
had been carried out and the very purpose for which the proceedings had
been instituted had been lost, thus, it was contended on behalf of the said
counsel that there was no reason to keep the case pending and in view of
said statement made the case was filed. Even in the said order, there is no
finding that at the time of institution of the said proceedings or the present
suit the present appellants were in possession of the suit property.
49. Even the jamabandi (Ex.D1) for the year 1963-64 which has
been relied upon on behalf of the appellant would show that in the
cultivation column the name of Nathu son of Hira has been mentioned and
the same also does not show the possession of the present appellants. The
documents which are stated to be a part of the applications for additional
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evidence i.e. CM-9136-CI-2014 as well as CM-2007-CI-2014 and CM-
1662-C-2015 which shows that a very small part of the suit land i.e. 2 kanal
was acquired regarding which notice under Section 9 of the Land
Acquisition Act, 1894 was issued on 05.10.1983 and as per the case of the
appellants the compensation was received by the appellants and further
mutation was also entered into on 07.04.1967 after the institution of the
suit, would also not further case of the appellants as none of the said
documents even remotely show that the present appellants/defendants no.1
to 4 were in possession of the suit property on the date of the institution of
the suit or even on the date of institution of the proceedings under Section
145 CrPC. Thus, the documents attached with the abovesaid applications
have been considered by this Court and the same do not call for interfering
with the concurrent finding of fact of both the Courts.
50. From the evidence and documents on record, it is apparent that
immediately after the death of Nathu on 23.08.1964, there was a dispute and
the proceedings under Section 145 CrPC were initiated on 16.10.1964 and
the possession was taken over by the receiver/State on 17.10.1964 and there
is no finding in the proceedings under Section 145 CrPC or any evidence to
show that on the date of institution of the said proceedings under Section
145 CrPC or on the date of suit, the defendants were in possession and thus,
the question of seeking possession from the defendants in the suit does not
arise. It is also not disputed before this Court that the Tehsildar had as an
interim measure leased out the property to the defendants in pursuance of
auction conducted during the pendency of the suit and the said interim
possession of the defendants cannot be considered to be the possession of
defendants on the date of institution of suit or on the date when the
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proceedings under Section 145 CrPC were instituted. Since, it is proved
beyond doubt that on the date of the suit, it was the receiver who had the
possession, then, once the ownership of the plaintiff stands established by
the judgment of the Civil Court, then, as a necessary corollary, the
entitlement to the said possession would be of the plaintiff as the property
was "in custodia legis".
51. The trial Court in para 11 under Issue no.1 had correctly
observed that the documents as well as the orders passed by the Tehsildar
show that the deceased was in self cultivation of the land till the date of his
death and even the jamabandi (Ex.P1) indicated the possession of the
deceased and thereafter, the Batai was being deposited in the Government
Treasury and the same was to be given to the person who was entitled and
that the specific averments to the said effect in para 6 of the plaint had not
been specifically denied and that PW1-Kartara had also stated that the land
was being leased out by the Tehsildar. It has been further rightly observed
that after the death of the deceased there was a dispute among the parties
and the property became attached and once the plaintiffs have been found to
be entitled to inherit the property of the deceased, then, it is the plaintiff
who should be entitled to declaration and possession. Admittedly, the
jamabandi Ex.P1 for the year 1963-64 shows that Nathu son of Hira was
shown in the cultivation column with respect to the suit land and the said
jamabandi was the last jamabandi prepared prior to the filing of the suit and
since it has been held that the plaintiff is entitled to inherit his estate thus,
the jamabandi entries are also required to be rectified in the name of the
plaintiff and thus, the decree passed by the trial Court cannot be faulted
with. Even the 1st Appellate Court in paragraphs 9 to 13 rightly came to the
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conclusion that the defendants could not prove that they were in possession
of the suit land at the time of death of Nathu or at the time of institution of
the proceedings under Section 145 CrPC or at the time of filing of the suit
and thus, rightly upheld the findings of the trial Court.
52. The judgments relied upon by learned senior counsel for the
appellant on the said aspect are completely on different facts. In the case of
Lachhimi Nath Pathak and another (supra) passed by the Allahabad High
Court and relied upon by the appellants, a perusal of the factual matrix
would show that in the said case, prior to the filing of the suit for
declaration, the proceedings under Section 145 CrPC had culminated and
the possession had been delivered to the defendants and in spite of the said
fact, no prayer for possession was made and that the plaintiffs therein had
claimed ownership of the disputed land on the ground of adverse
possession. Even in the case of Venkataraja and others (supra), it would
be relevant to note that in the said case the respondents no.3 to 10 therein
who were tenants and residing in the suit property were parties and were in
a position to deliver the possession, whereas, admittedly in the present case,
it was the receiver who was in possession, who was not a party to the suit
and the defendants who were not in possession at the time of the institution
of the suit could not have possibly delivered possession. It is in the said
background, it was observed by the Hon'ble Supreme Court that since
respondents no.3 to 10 were admittedly in possession of the suit property
and they were parties in the case that the plaintiff should have sought the
consequential relief of possession also. Even the said case was on different
facts. The case of Basuki Devi and Ors (supra) which was a case decided
by the Jharkhand High Court, is also on completely different facts,
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inasmuch as, it was observed in para 13 that the plaintiffs were not found to
be in possession of the suit land and as far as the plea of "custodia legis"
was concerned, no evidence had been brought on record to show that the
suit land was in "custodia legis". On the other hand, in the present case it is
not in dispute that on the date of the suit, the property was in "custodia
legis". In the case of Executive Officer, Arulmigu Chokkanatha Swamy
Koil Trust Virudhunagar (supra), there was no issue with respect to
attachment of proceedings under Section 145 Cr.P.C. and thus, the peculiar
facts which arise in the present case had not arisen in the abovesaid case.
The judgment of the Co-ordinate Bench of this Court in the case of Bali
Ram (supra) was with respect to an aspect where the amendment was
allowed by the appellate Court and the plaintiff was permitted to amend the
suit so as to implead the prayer of possession. The said judgment is not even
remotely applicable to the present case.
53. In the said circumstances, the decree passed by the trial Court
and upheld by the 1st Appellate Court is absolutely in consonance with the
law and deserves to be upheld. The substantial issue no.1 is decided in
favour of the respondents and against the appellants.
FINDING WITH RESPECT TO SUBSTANTIAL ISSUE NO.2:-
ii) Whether the concurrent findings of the trial Court and the Ist
Appellate Court to the effect that Nandan is the sister of Hira and
Kishan plaintiff is the son of Nandan, suffer from any illegality /
perversity so as to call for interference before this Court.
54. On the basis of pleadings and the evidence on record, the
plaintiff had tried to establish his relationship with Nathu by averring that
Nathu was the son of Hira and Hira was brother of Nandan and Kishan-
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plaintiff was son of Nandan. The relationship sought to be pleaded by the
plaintiff can be best explained by the following pedigree table:-
PEDIGREE TABLE
HAIT RAM
/
/
/
--------------------------------------------------------------------------
/ /
/ /
TILAK RAM ---- Smt. Nandan HIRA
(husband) / /
/ /
/ NATHU
/ (admitted owner of the property)
----------------------------------------------------------------- (DOD: 23.08.1964)
/ / / (Issueless)
CHAJJU BISHNI KISHAN
(died issueless) (widow of Harbans, died) (plaintiff)
55. Before adjudicating the abovesaid substantial issue, it would be
necessary to refer to Section 50 of the Indian Evidence Act, 1872. Section
50 of the Indian Evidence Act, 1872 along with Illustration '(a)' and '(b)' is
reproduced hereinbelow:-
"50. Opinion on relationship, when relevant. --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:
Provided that such opinion shall not be sufficient to
prove a marriage in proceedings under the Indian Divorce Act,
1869 (4 of 1869), or in prosecutions under section 494, 495,
497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations
(a) The question is, whether A and B, were married.
The fact that they were usually received and treated by
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their friends as husband and wife, is relevant.
(b) The question is, whether A was the legitimate son of B. The
fact that A was always treated as such by members of the
family, is relevant."
A perusal of the above provision would show that when the
Court has to form an opinion as to the relationship of one person to another,
the opinion expressed by the conduct as to the existence of such relationship
of any person who could either be a member of the family or otherwise has
special means of knowledge on the subject, is a relevant fact and thus, as
per the said provision, evidence of even a person who is not a member of
the family but has special means of knowledge is also relevant and the said
aspect is further clarified by Illustration '(a)' which further enumerates that
where the question which is to be determined is as to whether A and B are
married then the fact that they were usually received and treated "by their
friends" as husband and wife would also be relevant.
56. In the present case, the trial Court as well as the Appellate
Court, after taking into consideration the oral evidence as well as
documentary evidence have concurrently found that the relationship stands
established. This Court has also gone through the evidence of both the
parties and is of the opinion for the reasons to be detailed hereinafter that
the said concurrent finding of fact is legal and is not required to be
interfered with in the present Regular Second Appeal. Some of the
pleadings and evidence which have been considered by the trial Court and
the Appellate Court are also being referred to by this Court in the
subsequent paragraphs.
57. The plaintiff in para 3 of the plaint had made specific pleadings
to the effect that Smt. Nandan was the father's sister of the deceased Nathu
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and was married to Tilak Ram of Village Rampur Kalan, District Patiala
and the plaintiff, his sister Bishni and one brother Chajju were the children
of Nandan wife of Tilak Ram and that Chajju had died issueless and Bishni
was married at Village Ambala to Harbans. Para 3 of the plaint in the said
regard is reproduced hereinbelow:-
"3. That Shrimati Nandan was the father's sister of the
deceased and was married to Tilak Ram of village Rampur
Kalan, District Patiala and the plff, his sister Bishni and one
brother Chhaju are the children by Smt.Nandan wife of Tilak
Ram. Smt. Nandan died on 6-9-91 and whereas Chhaju died
issuless. Smt. Bishni was married at village Ambala to
Harbans. Both Smt. Bishni and her husband died leaving
behind four sons and one daughter. Dila Ram one the sons of
Smt. Bishni died issuless while Teja and Dh Ram have also
died leaving behind Ajmer and Shera respectively. Prita son
and Chinto daughter of Smt. Bishni alive."
58. In the written statement filed by defendant Nos.1 to 4,
although, the averments made in para 3 of the plaint were stated to be not
correct and denied and it was also stated that relationship of the plaintiff or
other persons stated by him with the deceased was denied but there was no
specific denial with respect to specific averments made in the plaint, nor in
the written statement, it was pleaded that the plaintiff belongs to some other
family. Para 3 of the said written statement is reproduced hereinbelow:-
"3. Para No.3 of the plaint is not correct and denied. It is
false and frivolous to the knowledge of the plaintiff. The
relationship of the plaintiff or other persons stated by him with
the deceased, is denied."
59. Order VIII Rule 3 CPC provides that it shall not be sufficient
for a defendant in his written statement to deny generally the grounds
alleged by the plaintiff and the defendant is required to specifically deal
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with each allegation of fact which he does not admit to be true except all the
averments regarding damages.
60. Further defendant no.1-Budh Ram had appeared in the witness-
box as DW11 and in his cross-examination, had specifically stated that he is
not related to Nathu and that Nathu used to tell him that his father had a
sister but he did not disclose the name of the said sister. From the above
evidence, it is apparent that even as per DW11, Nathu had admitted the fact
that his father Hira had a sister although in the said evidence, it had been
stated by DW11 that the said sister was resident of Malikpur. The case thus
projected on behalf of the appellants to the effect that Hira father of Nathu
had no sister stands falsified from the said admission of defendant No.1.
Relevant portion of the said evidence of DW11 is reproduced hereinbelow:-
"DW11 on SA
Budh Ram defendant No.1 as his own witness on S.A.
xxx xxx
I am not related to Nathu. Nathu used to tell me that his
father's sister was at Malikpur, but he did not disclose his
name."
61. Several witnesses have been examined on behalf of the plaintiff
who have proved the relationship between the plaintiff and Nathu. PW11
Jamiayat Singh who on the date of his evidence i.e. on 06.10.1966 was
stated to be 70 years of age had specifically stated that he knew the
plaintiff-Kishan Singh as the said plaintiff-Kishan Singh was brother of his
wife and further i.e. his brother Inder Singh was married to the daughter of
Kishan Singh's father's sister. Since, the said Jamiayat Singh was related to
the plaintiff and his evidence was very inspiring also thus, he had special
means of knowledge with respect to the relationship and the said PW11
Jamiayat Singh had specifically stated in his evidence that the plaintiff's
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mother was Nandan who belonged to Jalbera and that Nathu was Nandan
brother's son and that he had met Nathu personally in Kishan Singh' house
and that it is the said Nathu who used to address Nandan as Bua and further
addressed the plaintiff-Kishan Singh as his brother and that he had joined
the marriage of Nachatro daughter of the plaintiff and even Nathu had also
attended that marriage and had further given evidence to the effect that
Nathu had contributed Rs.35/- by way of "Neonda" in her marriage and the
entries relating to the same were written by him and that he had seen the
original bahi which was duly produced and exhibited as Ex.PW11/1.
Counsel for the defendant Nos.1 to 4/present appellants did not conduct any
cross-examination of the said witness although cross-examination was
conducted by counsel for defendant no.5 which also could not shake the
evidence of the said witness. Relevant portion of the evidence of said
witness is reproduced hereinbelow:-
"PW11
Jamiayat Singh son of Harnam Singh, 70 years,
Zamindari, Manauli on S.A.
I know Kishan Singh of Rampur who is the bother of
my wife. My brother Inder Singh was married to the daughter
of Kishan Singh's father's sister, Kisshan Singh's mother
waw Nandan She belongs to village Jalbera. Her brother was
Nanda. Nathu was Nandans brother's son. I met Nathu in
Kishan Singh's house and he also visited the marriages and
thereto I met him- Nathu addressed as Bhua, and addressed
Kishan Singh as his brother. I Joined the marriage of
Nachhetro daughter of Kishan Singh, Nathu also attended
that marriage. Nathu contributed Rs.35/- in by way of
Naunda in her marriage. The entries were made relating to
that Naunda. I wrote those entries. I have seen the original
bahi in which Ex.P.W.11/1 is the entry relating to this
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Naunda. Its true transliteration is EX.P.W.11/1/T.
xxn:- by counsel for defendants Nos.1 to 4-Nil.
RO & AC
6/10/66 SSJ"
62. Even in the cross-examination conducted by counsel for
defendant no.5, the said witness PW11 had reiterated the fact that he had
met Nathu at the house of Kishan Singh and even the month of the said
meeting had been mentioned. A perusal of Ex.PW11/1 would show that
there are several entries which have been made indicating the amount given
by various relatives/guests at the time of marriage of Nachatro daughter of
Kishan Singh-plaintiff and an amount of Rs.35/- had been mentioned in
front of the name of Nathu. The said document had been produced by PW11
and had been duly exhibited and there is nothing to either disbelieve or
discredit the said witness. The said witness being 70 years of age and also
being her relative and having met Nathu when Nathu attended marriage in
the family of Kishan Singh is an important witness the evidence of whom
has been rightly considered by the Courts for the purpose of establishing
relationship between the plaintiff and the said Nathu.
63. Even PW7-Pritam son of Harbans Singh is the relative of
plaintiff-Kishan Singh as he is the son of Bishni and Harbans who is the
sister of Kishan-plaintiff. The said witness also has, apart from the fact of
describing his relationship, has also specifically stated that Kishan Singh's
mother was Nandan and Nandan was also his maternal grandmother and
that she belonged to Jalbera and that Nathu used to come to Nandan on the
occasion of marriages and even otherwise used to stay with her for months
at a stretch and he used to address her as Bua. Further in cross-examination
conducted by defendant no.5, the said PW7 had stated that he attended the
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marriage of Nathu which had taken place about 30 years prior to the date of
his testimony. Even to the said evidence in chief, no cross-examination was
conducted on behalf of counsel for defendant Nos.1 to 4. Relevant portion
of the evidence of PW7 is reproduced hereinbelow:-
"PW7
Pritam son of Harbans son of Bhagwan Das, 50 years,
Zamindari, of Umrala on S. A.
I know the plff: He is my real maternal uncle. My
mother was Bishni and she was the real sister of Kishan
Singh plaintiff. Kishan Singh's mother was Nandan and was
my maternal grand mother. She belonged to Jalbera, Nandan
was the daughter of Hira. Again said I do not know her
father's name. Hira was the father of Nathu, Nathu was her
brother's son. Nathu generally came to Nandan on the
occasions of marriage and other also used to stay with her for
month at a stretch. Nathu addressed Nandan as his Bhua
(Aunti)
Xxn:- by counsel for defets No.5:- I have not seen Hira. I
attended the marriage of Nathu in village Jalbera. I do not
know in which Village Nathu was married. Nathu was married
about 30 years back.
Xxn:- by counsel for defdt Nos.1 to 4. Nil
RO&AC
4/8/66 SSJ"
64. PW-12 Jiwa Singh was also relative of plaintiff Kishan Singh
as the said plaintiff was Jiwa Singh's sister's husband and the said witness
had also specifically stated that the plaintiff's mother was Nandan and she
was the daughter of Hait Ram and had a brother called Heera, whose son
was Nathu and that Nathu had left behind no other relation except the
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plaintiff and the said Nathu had been visiting the plaintiff and used to
address her as Bua. In the cross-examination conducted by defendants no.1
to 4, the said witness had specifically stated that he had gone to Nathu, 5 to
6 months prior to his death and he had gone to enquire about the prices of
sugarcane crusher at Ambala City and even stayed with him for the night.
The relevant portion of PW-12 Jiwa Singh is reproduced hereinbelow:-
"P.W.12.
Jiwa Singh son of Bhagwana, 50 years, Zamindari
resident of Alipur on S.A.
I know Kishan Singh. He is my sister's husband. My
sister was married to him about 40 or 45 years ago. The plff's
mother was Mst. Nandan. She belonged to Nandpur Jaiver.
She was the daughter of Hait Ram. Nandan had a brother
Hira. Hira's son was Nathu who died about 3 years ago.
Nathu left behind no other relation except the plaintiff.
Kishan Singh has two sons and 3 daughter alive
whereas the 4th daughter of Kishan Singh died. His two sons
and two daughters are married. Nathu had been visiting the
plaintiff. Nathu addressed Nandan as his Bhua (Anti) and
addressed Kishan Singh as Bai. Nathu attended the marriage
of Kishan Singh's sons and daughters and gave Naunda in
those marriages. Nathu left beind land, which was in the
cultivation possession of the tenants. I am also a Mukhtar of
the plaintiff. When Kishan Singh filed the suit the land had
been auctioned by the Tehsildar to the members of the
committee of village Jalvera. Naurata was the Sarpanch and
Bachna is a panch of that committee. At that time the tenants
were cultivating the land...........
xxn:- by Sh. Ram Sarup Counsel for defdt Nos.1 to 4.
I had gone to Nathu 5 or 6 months before he died. I had
come to enquire about the prices of Sugar Cane crusher at
ambala city and after making enquiries went to stay with him
for the night. ....."
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65. In addition to the above said relatives / family members, the
plaintiff had recorded the statements of several elderly persons who knew
Nathu personally.
66. PW-3 Bakhshi son of Chhajju, who was 65 years of age on the
date of his evidence i.e., 16.06.1966 and was resident of village Jalbera had
specifically stated that Nathu was of his village and that he knew him and
that the father's name of Nathu was Hira and that Hira had a sister, whose
name was Nandan and that the plaintiff was the son of Nandan and had
further stated that the plaintiff along with Nandan used to visit village
Jalbera and used to stay with Nathu and used to address Nathu as Bhai. The
relevant portion of his examination-in-chief is reproduced hereinbelow:-
"P.W.3.
Bakhshi son of Chhajju, 65 years, Zamindari, resident of
village Jalbera, on S.A.
I knew Nathu of my village. His father's name was
Hera. Nathu died about two years ago. Hera had a sister
whose name was Nandan. Hera and Nanda's father was Hait
Ram. Nandan was married at village Rampur to one Tilak
Ram. I know the plaintiff Kishan Singh. He is the son of Mst.
Nandan. Kishan Singh along with Nandan used to visit our
village and stay with Nathu. He used to address Nathu as
Bhai. Nathu used to address Nandan as Bhuha. The land in
dispute is being occupied by the Govt. and was leased out by
them during the last harvest."
67. Further in his cross-examination, the said PW-3 had stated that
Nathu was ill for about 12 months before his death and was even
unconscious for about 10 to 12 days before his death and that he had gone
to enquire about the health of Nathu about 3 days before his death. The
relevant portion of the said cross-examination is reproduced hereinbelow:-
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"XXXn- by Shri B.B. Gupta, counsel for defdt. No.5.
Nathu died of Asthama. He remained ill for about 12
months before his death. He was unconscious for about 10 or
12 days before his death. His tenant Puran used to take him in
tonga to the Doctor for the treatment during this period of 10
or 12 days when he was unconscious. I went to inquire of the
health of Nathu about 3 days before his death."
68. Even the evidence of the above said witness, who was
personally known to Nathu and had also visited Nathu when he was ill and
being resident of the same village, he also had special means of knowledge
with respect to the relationship of Nathu with the plaintiff.
69. Even PW-6 Allah Dia son of Attru, who was stated to be 65
years of age on the date of his evidence i.e., 07.07.1966, had specifically
stated that he knew the plaintiff Kishan Singh and that Kishan Singh's
mother was Nandan and that he had seen her and further that even he knew
Bishni, who was the sister of Kishan and that Nathu had attended the
marriage of the daughter of Kishan Singh from the maternal side and he
gave Rs.35/- as "Naunda". It was further stated by him that Nathu had even
attended the marriage of Kishan Singh's son Kushal Singh. The relevant
portion of evidence of PW-6 is reproduced hereinbelow:-
"P.W.6.
Allah Dia son of Attru, 65 years, Green Seller of Rampur on
S.A.
I know Kishan Singh of V. Rampur. Kishan Singh's
mother was Nandan. I have seen her. She belonged to village
Jalbera. I know Bishana of village Jalbera who was her
brother. Kishan Singh had a daughter Chhatroo/Batroo. She
was married. Nathu attended her marriage from her maternal
side. Nathu was the brother's son of Nandan. Neonda was
taken on the occasion of the marriage of the daughter of
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Kishan Singh. Nathu gave Neonda Rs.35/- or 36/-.
Kishan Singh's son Khushal Singh was married
about 8 or 9 years ago. Nathu attended this marriage also on
behalf of the maternal side. Neonda was taken on this
marriage also. Nathu gave Neonda at Rs.20 or Rs.21/-.
Whenever Nathu visited our village he stayed with Kishan
Singh Lambardar and addressed Nandan as Bhuha."
70. In the cross-examination, the said witness had stated that he
had given Rs.8/- as Naunda at the time of marriage of Chhataro and that
Jamiat had made the entries in the bahi regarding payment of Naunda at the
time of marriage of Chhataro.
71. Further PW-9 Sarwan Singh had stated that he knew the
plaintiff and had attended the marriage of Khushal Singh son of Kishan
Singh and had further stated that Nathu son of maternal uncle of Kishan
Singh had also attended the said marriage and that Nandan was the mother
of Kishan Singh and she was from village Jalbera and that Nathu used to
address Nandan as Bhua and Kishan Singh as Bhai. Importantly in the
cross-examination, he had stated that Nathu had passed from his village and
had stayed with him for one night.
72. PW-1 Kartara son of Kalli Ram was stated to be 70 years of
age on the date of his evidence i.e., 23.05.1966 and he was resident of
Jalbera and had specifically stated in his examination-in-chief that he knew
Nathu son of Hira, who was of his village and that said Hira had a sister
named Nandan and that Hait Ram was the father of Hira and Nandan and
that Nandan was married in village Rampur with Tilak Ram and that the
plaintiff is the son of Tilak Ram. It was further specifically stated that
Kishan Singh and Nandan used to visit their village Jalbera at the house of
Nathu and Nathu used to address Nandan as his Bua and that even he (PW1)
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also used to address her as his Bua. In the cross-examination, the said
witness had stated that the house of Nathu was about one furlong from his
house and Nathu was about his age and Nandan was older from Nathu by 20
years. The relevant portion of his evidence is reproduced hereinbelow:-
"P.W. 1.
Kartara son of Kalli Ram, 70 years, R/o Jalwehra, Zamindari,
on S.A.
I knew Nathu son of Hira of my village. He died about
1 ¾ years ago. Hira had a sister named Nandan. Hait Ram
was the father of Hira and Nandan. My parents used to tell me
that Hira was the son of Hait Ram and Nandan was the
daughter of Hait Ram. Nandan was married at village Rampur
with Tilak Ram. Nandan died about 30 or 35 years back. The
plaintiff is the son of Tilak Ram and Nandan. Kishan Singh
and Nandan used to visit our village at the house of Nathu.
Nathu used to address Nandan as his (Bhuha). I also used to
address her as Bhua.
73. Relevant portion of his cross-examination is reproduced
hereinbelow:-
"The house of Nathu is about one furlong from my
house. Nathu was of about my age. Nandan was older than
Nathu by 20 years."
74. The said witness was thus, apparently a neighbour of Nathu and
was residing in the same village and was an elderly person and thus, the
Courts have rightly relied upon the evidence of the said witness on the
aspect of proof with respect to the relationship.
75. PW-8 Arjan son of Mansa had also stated in his evidence that
he knew Kishan Singh and had been on visiting terms with the said Kishan
Singh and that Kishan Singh's mother was Nandan and she belonged to
village Jalbera and that he knew Nathu who came at the time of marriage
from the parents side and he addressed Nandan as Auntie (Bua). It was
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further stated by him that he had contributed 'Naunda' in the marriage of
Khushal who was the son of the plaintiff and Nathu also visited at the time
of marriage of Khushal Singh and gave Naunda at the time of the marriage.
Thus, the said witness along with the other witnesses have specifically
stated that Nathu had been visiting the plaintiff at the time of marriage of
the son and daughter of the plaintiff and that the said witnesses had also
participated in the marriage ceremony and had also seen Nathu addressing
the plaintiff Kishan as brother and Nandan as his Bua and thus their
evidences have been rightly relied upon by the Courts. In addition to the
above, the plaintiff had also examined PW-2 Inder Singh, who was a
relative of the plaintiff Kishan Singh as his daughter was married to the son
of Kishan Singh and even he in his examination-in-chief had stated that he
saw Nathu Ram at the time of marriage of his son and that he had visited the
house of Kishan Singh at Rampur about 2/4 times and had met Nathu there.
It would be relevant to note that the counsel for defendant nos.1 to 4 had not
conducted any cross-examination of the said PW2.
76. Even PW-10 Babu Singh had stated that he knew Kishan Singh
and that he attended the marriage of daughter of Kishan Singh and that
Nathu son of Nandi's brother had also attended the said marriage and he
used to address Nandi as Bua. In his cross-examination conducted by
defendant no.5, he had further stated that he had attended the marriage of
Khushal Singh and in the said marriage also, Nathu was present. It would be
relevant to note that counsel for defendant nos.1 to 4 had not conducted any
cross-examination of the said witness in spite of opportunity. Even PW-5
Mal Singh who was 70 years of age on the date of his evidence i.e.,
07.07.1966, had specifically stated that he knew Kishan Singh and had
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reiterated the evidence given by the other witnesses. It has further been
stated by the said witness that he knew Nathu, who was the son of the
brother of Nandan and that Nathu used to come to Kishan Singh on the
occasion of marriages and used to stay with him for 10/12 days and that
said Nathu had come to the marriage of the daughter of Kishan Singh, as
well as his son. In the cross-examination he had stated that he knew Nathu
for the last 30 years. In addition to the above, the plaintiff had himself
appeared in the witness box as PW-13 and had reiterated the entire case and
had further specifically stated that his mother was Nandan and Tilak Ram
was his father and further that Hait Ram was the father of Nandan and
Nandan had one brother by the name of Hira, whose son was Nathu and
Nathu died issueless and Nathu used to come and to stay with him for
months in his village and the marriage of his children was also attended by
Nathu.
77. The evidence of the abovesaid witnesses when taken in totality,
clearly establishes the relationship between the plaintiff Kishan and Nathu.
It is further fortified from the fact that from the side of the appellants
nothing has been shown to this court to suggest that the said plaintiff
Kishan belonged to some other family and was not the son of Nandan or
that the said Nandan was not the sister of Hira. The fact that Nathu is the
son of Hira is not in dispute. In the said circumstances, the trial Court as
well as the Appellate Court have rightly decided issue no.2 in favour of the
plaintiff and against the defendant. The trial Court has further rightly
observed that since the relationship of the plaintiff and Nathu is established,
thus, the plaintiff would be the only surviving heir to inherent the property
in view of the provisions of The Hindu Succession Act. The evidence of the
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witnesses has been correctly appreciated by the trial Court. Even the Ist
Appellate Court has considered the evidence on record and has rightly come
to the conclusion that Kishan Singh was the son of Nandan who was the
father's sister of Nathu deceased and was a blood relation of the deceased
and was entitled to succeed to the estate of Nathu as provided for by the
provisions of The Hindu Succession Act.
78. With respect to the argument of learned senior counsel for the
appellants to the effect that in the Kursinama, the name of Nandan, being
sister of Hira has not been mentioned, the explanation offered on behalf of
the respondent/plaintiff to the effect that in Ex.P7, the name of only male
descendents has been mentioned, is apparently correct and a perusal of
Ex.P7 would show that there is no reference to any female member of the
family. The argument raised on behalf of the appellants to the effect that
certain witnesses were members of the family and were thus interested
witnesses, also does not call for excluding their evidence inasmuch as in
order to prove the relationship between the members in a family, the best
evidence would be given by the persons who are relatives and thus, it
cannot be said that the evidence of the said witnesses cannot be considered,
nor any law supporting the said contention has been referred to. In fact, a
perusal of Section 50 of the Indian Evidence Act which has been
highlighted on behalf of the appellants would show that the opinion as to
the existence of a relationship could be that of a member of the family.
Further the minor discrepancies pointed out on behalf of learned counsel for
the appellants also do not call for setting aside the concurrent findings of
fact which are based on due appreciation of evidence, which evidence has
also been considered by this Court.
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79. Reliance placed upon the judgment of the Hon'ble Supreme
Court in the case of Dolgobinda Paricha (supra) in the said regard also
does not further the case of the appellants. In the said case, the evidence of
one Dharanidhar Mishra, who was not directly related to the family of Loki
Nath and was a friend of Loki Nath and had lived in the neighborhood, was
under consideration which showed that he knew Loki Nath and had further
attended the marriage ceremonies of members of the family on account of
which it was found to be relevant under Section 50 of the Indian Evidence
Act and was taken into consideration for the purpose of proving the
relationship of the plaintiffs being the sons of the daughters of Loki Nath
Paricha by his first wife Satya Bhama. It would be relevant to note that on
the basis of the evidence of the two witnessess one being Dharanidhar
Mishra and the other being Janardan Mishra, the said findings had been
arrived at. The relevant portion of the said judgment is reproduced as
under:-
"xxx xxx xxx
We may in this connection refer to one of our own
decisions, Sitaji v. Bijendra Narain Choudhary wherein the
following observations were made:
" A member of the family can speak in the witness-box of
what he has been told and what he has learned about his own
ancestors, provided what he says is an expression of his own
independent opinion (even though it is based on hearsay derived
from deceased, not living, persons) and is not merely repetition of
the hearsay opinion of others, and provided the opinion is
expressed by conduct. His sources of information and the time at
which he acquired the knowledge (for example, whether before
the dispute or not) would affect its weight but not its
admissibility. This is therefore legally admissible evidence which,
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if believed, is legally sufficient to support the finding".
It is true that Dharanidhar Misra was not directly related
to the family of Lokenath. He was, however, distantly related to
Haripriya. He was a friend of Lokenath Parichha and lived in
the same neighbourhood. His evidence showed that he knew
him and the members of his family quite well. That being the
position, his evidence that he attended the marriage ceremonies
and the Upanayan ceremonies of several members of the family
undoubtedly showed his opinion as expressed by his conduct.
xxx xxx xxx"
80. It would be relevant to note that the Full Bench of this Court in
the case of Amar Singh (supra), had after considering the judgment of the
Hon'ble Supreme Court in the case of Dolgobinda Paricha framed two
questions. The two questions were initially framed by Hon'ble Justice Suri
in para 1 of the judgment and were also framed by Hon'ble Justice H.R.
Sodhi in para 15 of the judgment and were ultimately answered in para 54
of the judgment. The relevant portions of the said judgment is reproduced
herein-below: -
"C.G. Suri, J. An important question of law that keeps
arising in a large number of cases and which has also arisen in
this second' appeal is whether, in cases where it becomes
necessary to prove the relationship of one person to another, a
witness appearing in Court can make a statement to prove the
conduct of another having special means of knowledge about
the disputed relationship when that conduct expresses the
opinion of that person about the relationship. Is it necessary
that the statement of the witness is to be confined only to his
own conduct as expressive of his own opinion with regard to the
existence of the disputed relationship ?
xxx xxx xxx
H. R. Sodhi, J.
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(15) The following two questions of law have been referred
to Full Bench by my brother Suri, J : --
(1) Is it necessary that the statement of a witness is to
be confined only to his own conduct as expressive of his own
opinion with regard to the existence of the disputed relationship
?
(2) Whether in cases where it becomes necessary to
prove the relationship of one person to another, a witness
appearing in Court can make a statement to prove the conduct
of another having special means of knowledge about the
disputed relationship when that conduct expresses the opinion
of that person about the relationship ?
Xxx xxx xxx
ORDER OF THE FULL BENCH
(54) In accordance with the unanimous decision, the
second question, as framed by Sodhi J., and the first part of the
question, as framed by Suri J., are answered in the affirmative.
In accordance with the opinion of the majority, the answer to
the first question, as, framed by Sodhi J., and the second part of
the question as framed by Suri J., are answered in the
negative."
A perusal of the above-said judgment would show that as per
the unanimous decision of the Full Bench, the second question as framed by
Hon'ble Justice H.R. Sodhi which was to the effect that "Whether in cases
where it becomes necessary to prove the relationship of one person to
another, a witness appearing in Court can make a statement to prove the
conduct of another having special means of knowledge about the disputed
relationship when that conduct expresses the opinion of that person about
the relationship?", which question was also in fact the first part of the
question framed by Hon'ble Justice Suri, was answered in the affirmative
and thus, it was held that for proving the relationship of one person to
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another, a witness appearing in Court could make a statement to prove the
conduct of another having special means of knowledge about the disputed
relationship when the conduct expresses the opinion of that person about
the relationship. In the present case, as is apparent from the finding of the
trial Court and 1st Appellate Court as well as the evidence on record,
substantial part of which has been discussed in earlier part of the judgment,
it is apparent that the finding of fact arrived at by the Courts is in
accordance with law and deserves to be upheld.
81. Moreover, it has been observed in the case of Balbir Singh
(supra) by the Co-ordinate Bench of this Court that a finding proving
relationship, is a finding of fact and in a second appeal, it is not open to
reverse the concurrent finding of fact, especially when there is some
evidence in support of the said finding. The relevant portion of the said
judgment is reproduced herein-below: -
"In any event whether the appellant is proved to be the son of
Lachhman Singh, or not is a pure finding of fact. Sitting in second
appeal, it is not open to me to reverse a concurrent finding of fact,
especially when there is a some evidence in support of such a
finding."
FINDINGS WITH RESPECT TO ISSUE NO.3 AND
CONCLUSIONS:-
iii) Whether the findings of the trial Court and the Ist Appellate
Court on issue no.3, discarding the Will propounded by defendants no.1
to 4 in their favour allegedly executed by the deceased Nathu Ram call
for an interference in the present appeal.
82. Both the trial Court as well as the Ist Appellate Court had
concurrently discarded the Will propounded by the appellants/defendant
Nos.1 to 4 in their favour by the deceased Nathu Ram. It has been found
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that there were several suspicious circumstances which were not explained
calling for rejection of the Will. This Court has considered the entire
material on record and is also of the opinion that the concurrent finding of
the trial Court and the Appellate Court on the said aspect is in accordance
with law and does not call for any interference. In the said regard, following
circumstances are required to be noted:-
(i) It is not in dispute that the beneficiaries which are stated to be
four in number i.e., defendant Nos.1 to 4/present appellants are not
related to the testator. Apart from the fact that the said aspect is not
disputed before this Court, a perusal of evidence of DW11-Budh Ram
(defendant no.1) would also fortify the same. The said Budh Ram in
his cross-examination had stated that he was not related to Nathu.
(ii) There is nothing on record to show that defendant no.4 is
related to defendant Nos.1 to 3 and thus, the execution of the Will in
favour of different persons who are not related to each other without
there being any specific evidence to show any special service to the
deceased casts a serious suspicion on the execution of the Will.
Admittedly, defendant no.4 is the son of Munshi and defendant Nos.1
to 3 are sons of Nand Ram.
(iii) A perusal of the written statement filed by defendant Nos.1 to
4/present appellants would show that there are no averments of their
rendering any service to the deceased, in lieu of which deceased
might have executed a Will in their favour, in spite of the fact that he
was not related to the beneficiaries.
(iv) It has come on record that the deceased was not keeping good
health and had died within three days of the execution of the alleged
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Will dated 20.08.1964, as admittedly Nathu Ram had died on
23.08.1964. Moreover, a perusal of Ex.P3, which is the copy of the
register of death which shows that the information regarding his death
had been given on 15.09.1964, specifically record that the deceased
was sick for the last 6 years. PW-3 in his cross-examination, which
had been reproduced hereinabove, had stated that the deceased was
unconscious for 10 to 12 days before his death.
(v) It has come on record that defendants no.1 to 4 were present at
the time of the execution of the Will and had actively participated in
the execution of the Will. DW-6 Dr. Satpal Soni, who was a
registered medical practitioner of Ambala City, had been examined
by the defendants, who in his cross-examination had stated that Budh
Ram defendant no.1 had told him that Nathu was to be given some
medicine and also wanted to execute a Will. The relevant portion of
the said cross-examination of DW-6 is reproduced hereinbelow:-
"D.W.6 on S.A.
Dr. Satpal Soni, Regd: Medical Practitioner Ambala City
on S.A.
......Xxn:- by counsel for the plaintiff.
The parties to the will all of sudden dropped in
my clinic and there was no time or place fixed
previously. My consulting room is about 2 yards from my
sitting place. When they came to me, Budh Ram told me
that Nathy was to be given some medicine and also
wanted to executed a Will. I directed them to go inside
my consulting and write out the Will."
(vi) Reference can also be made to evidence of DW-1 Bodh
Parkash, Scribe as well as to the evidence of DW-11 Budh Ram who
had stated that defendants were present at the time of execution of the
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Will. The trial Court in paragraph 17 had while relying upon the
judgment of the Hon'ble Supreme Court in the case of H.
Venkatachala Iyengar vs. B.N. Thimmajamma and others, reported
as AIR 1959 Supreme Court 443 had observed that the Hon'ble
Supreme Court in the said judgment had held that where the
propounders themselves had taken a prominent part in the execution
of the Will which confers substantial benefits to the said propounders,
the same would be a suspicious circumstance required to be
satisfactorily explained. No explanation with respect to the aforesaid
suspicious circumstance has been given on behalf of the appellants.
vii) The deceased Nathu was admittedly a resident of Jalbera and
Jalbera is at a distance of 4 miles from Ambala City and yet the Will
was scribed at Ambala City at the shop of Dr. Satpal. Further DW-11
Budh Ram defendant no.1 had stated that when a person would start
from Jalbera and had to go to Dr. Soni's, Clinic, then the Court would
fall in the way before one reaches the said clinic. However, in spite of
the same, the Will was not executed either in Jalbera or even in the
Court but was executed in the clinic of Dr. Satpal Soni. The same was
done in spite of the fact that the deceased was not keeping good
health on the date of alleged execution of the Will. The relevant
portion of the evidence of DW-11 on the said aspect is reproduced
hereinbelow:-
"Xxn"- by the plaintiff's counsel:-
When we starts from Anandpur Jalbera, Courts falls in
the way if one goes to Dr. Soni's clinic. I did not know Bodh
Parkash earlier. I do not know the distance of Bodh
Parkash's house from the shop of Dr. Satpal. No rough Will
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was written. The scribe went on writing what was stated by
Nathu. Nathu was illiterate. Nathu died at the age of 70 or 80
years. Nathu died from the 4th day of the making of the Will. I
do not know Kishan Singh. It is wrong to suggest that the land
of Nathu was cultivated by the tenants. On the date when the
Will was executed, I did not suggest that the same be got
registered befor the Sub Registrar. I cannot tell as to how
many persons thumb marked and how many signed."
.... .... ....
Xxn:- by counsel for defendant no.5:-
I was present at the time of the execution of the Will. Nathy
deceased told the name of his father as also of his grand father
to the petitioner writer Bodh Parkash. Bodh Parkash
accordingly wrote those very names in the Will. My father died
when I was about 10 years of age. I do not know whether any
meals were served to the brahmin or the brotherhood. Nathu
brought us from Jalbera to Ambala in tongas. The name of that
Tongawalas I do not know. Ram Gopal, myself, Ram Kishan,
Ram Partap, Bakhshi Ram, Ram Chand, accompanied Nathu
deceased. Ajmer also was with us. All the aforesaid persons
except Nathu are alive. Nathu told us in the village that he
wanted to execute a Will in their favour. We all reached at the
shop of Sadhu Ram in Anaj Mandi Ambala City. Thereafter we
went to the shop of Dr.Satpal. Previous to the occasion I never
accompanied Nathu deceased to the shop of Dr. Satpal."
From the above said reproduced evidence of DW-11, it is
also apparent that Nathu was illiterate and that as per the case of DW-
11 Budh Ram, the scribe was writing what was stated by Nathu.
Reference to the Will as well as to the finding of the Ist Appellate
Court in paragraph 26, which has not been refuted before this Court
would show that several words were used in the Will which included
the words "Mikkar", "Haduld Jail" and "Malkiat wa Makbu Ja
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Billa Sarakat Giri" etc. and thus, it could not be stated that the said
Will was dictated by an illiterate person and thus, the Courts while
discarding the Will came to the conclusion that the same was written
at the instance of Budh Ram and others.
viii) DW-11 Budh Ram had further in his cross-examination stated
that he did not suggest that the Will should be registered before the
Sub Registrar and thus the Will was not registered before the death of
the deceased and it is surprising that once everyone including
defendants no.1 to 4 had made such an effort to take everybody from
village Jalbera to Ambala City, then also the Will was not got
registered till the life time of the deceased and subsequent registration
of the Will after the death of the deceased would not in any way
justify the non-registration of the Will prior to the death of the
deceased.
ix) DW1 Bodh Prakash, Deed Writer, who had scribed the Will
(Ex.D1), had specifically stated in his cross-examination that the
attesting witnesses had not put their attestation in his register nor they
were asked to do so. Moreover, as has been observed in para 18 of the
judgment of the trial Court, which fact has not been rebutted, DW1
had not scribed the document in place of his profession but had
scribed the same at a different place.
x) DW11 in his cross-examination had stated that the Will was
scribed in the consulting room of Dr. Satpal Soni and while the Will
was being scribed Dr. Satpal Soni had attended his clients and was
also watching the Will. The evidence on the said aspect has already
been reproduced herein above. On the other hand, DW6 Dr. Satpal
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Soni had stated that the Will was executed in his consulting room and
that he had reached the room after the Will had been scribed and he
did not know the name of person who had scribed the Will and had
further stated there was a door and a curtain behind the door and the
persons sitting in the consulting room were not visible from the
outside. Thus, the said evidence of DW6 is contrary to the evidence
of DW11. The relevant portion of his evidence on the said aspect is
reproduced herein below: -
"D.W.6 on S.A.
Dr. Satpal Soni Regd. Medical Practitioner Ambala City on
S.A."
xxx xxx xxx
Ex.D1 was executed in my consulting room. I reached that
room after the will had scribed. I did not see any rough draft of the
Will. I did not know the name of the petitioner writer who had
scribed the will. Nathy had come to me for taking medicine as
usual, because he was an asthmatic patient."
xxx xxx xxx
In between my consulting and sitting room there is a door.
Persons sitting in my consulting room are not visible from outside. I
do no remember whether. I administered the medicine to Nathu
before or after the execution of the Will.
xxx xxx xxx
Nathu had got my attestation on the Will lest a question may
arise later that he was not in proper senses at the time of the making
of the Will and I attested the Will as a Medical expert. I did not think
it proper to write on the will that Nathy was in proper senses to
make the will.
xxx xxx xxx
I do not know the meaning of the word 'Miker'. I did not
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follow what is written in the said Will nor did I make any effort to
know it is contents. I do not remember if any other person present
there asked the petitioner to explain the contents of the Will i.e. the
meaning of the words contained in the Will. I did not issue a
certificate of medical fitness to Nathu or Budh Ram."
Further a perusal of the above-said evidence would show that
the above-said witness did not issue any medical fitness certificate
certifying the fitness of Nathu on the date of the execution of the
Will.
xi) DW3 Ram Kishan son of Chetu, who is stated to be an attesting
witness had stated that in his cross-examination that Nathu was ill
with Asthma for about 2 or 3 months before his death and that he was
an old man of 75 years of age and was rather spent up and had been
suffering from Asthma since long and thus, he had also proved that
the said Nathu was not well. Further DW3 has also stated in his cross-
examination that he did not know any relation of Nathu and that he
did not see Nathu's father and did not know where Nathu was married
and had further stated that all the persons including the scribe had
reached the shop of Dr. Satpal together, which evidence was contrary
to the evidence of DW2 Ram Gopal, who had specifically stated that
the scribe had come to the shop of Dr. Satpal after his reaching there.
The relevant portion of the evidence of DW3 is reproduced herein
below:-
"Nathu was ill with asthma for about 2 or 3 months before
his death. He was an old man of 76 years of age and rather spent
up.
xxx xxx xxx
He died 8 days after the execution of Ex.D1. I did not know
any relation of Nathu."
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xxx xxx xxx
I did not see Nathu's father. I do not know where Nathu was
married.
xxx xxx xxx
The scribe was called by Nathu. In fact all of us including the
scribe had reached the shop of Dr. Satpal together."
xii) DW2 Ram Gopal son of Mangal Singh, who was also stated to
be one of the attesting witness of the Will, has been found to be a
very clever witness and the said fact has been recorded by the Court
after putting questions to him. In response to the Court question, the
said witness had stated that Nathu had died in the village on the 3rd/4th
day of the execution of the Will (Ex.D1) on account of illness and
thereafter had immediately stated that he cannot say that he died on
account of illness and that Nathu was brought to Ambala City in a
Tonga and that it is thereafter that the said observations had been
made by the Court. The relevant portion of evidence of DW2 is
reproduced herien below: -
"The scribe had come to the shop of Dr. Satpal after he
reaching there. I had put my signatures on Ex.D.1.
xxx xxx xxx
Q. by Court: - Nathu died in the village on the 3rd or 4th day of
the execution of the Will Ex.D1 died of illness. I cannot say if he
died of any illness. Nathu had been brought to Ambala City in a
Tonga. Defdts Nos.1 to 4 used to look after him. I never saw Nathu
ill. (N.B. The witness appears to me very clever."
It would be relevant to note that the argument raised on behalf
of the appellants is to the effect that the said note is not there in the
evidence which has been recorded in the vernacular, but it has not been
disputed that even the evidence which has been recorded in English, has
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also been signed by the trial Judge and a perusal of para 18 of the judgment
of the trial Court would show that the trial Court has also taken into
consideration the note which duly records that the witness appears to be
very clever.
83. The trial Court has taken into consideration the evidence of
both the parties and has found that the Will is surrounded by numerous
suspicious circumstances which have not been explained and that the said
Will could not be stated to be a valid Will. With respect to the handwriting
expert DW21, it has been observed that the genuineness of thumb
impression of the postal authorities which has been taken as the standard
thumb impression has not been proved. While observing the said fact, the
evidence of DW18 Chuni Lal Bhatia, who had stated that the thumb
impressions were not obtained in his presence and that he did not know
Nathu Ram, had been taken into consideration. Even the evidence of R.N.
Sharma who was the Town Inspector, to the effect that the thumb
impression of Nathu was never taken in his presence and that he did not
know the said Nathu Ram personally, had been taken into consideration. In
view of the same, the evidence of DW21 has been rightly excluded. The
said finding of the trial Court has not been shown to be illegal or perverse.
Further, in para 20, the trial Court has also taken into consideration the fact
that the plaintiff had got the thumb impressions examined from the Finger
Print Bureau, Phillaur and as per the report of the Director, the thumb
impressions are incapable of comparison and the report was duly exhibited
as Ex.PW14/1 and Ex.PW14/2 by the said Inspector, who had appeared as
PW14. The finding of the trial Court in para 20 has also not been shown to
be perverse or illegal.
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84. The trial Court had highlighted several suspicious
circumstances in addition to the suspicious circumstances which have been
highlighted in the preceding paragraphs in the present judgment and there is
no satisfactory explanation offered by the appellants even to the said
circumstances. The Ist Appellate Court had also considered the evidence of
the parties and had observed that the Will is not the result of a free, sound
and disposing mind and even the suspicious circumstances surrounding the
same have not been explained. It had been further observed that apparently
Nathu's one leg was in the grave and as per the case of the defendants, they
had taken him in tonga to the clinic of Dr. Satpal Soni, who cannot be stated
to be very close to the deceased and the same was done only apparently to
keep him alive for some time so as to procure the thumb impressions in
order to forge a Will. The finding of the Courts on the aspect of Will is also
in accordance with law and does not call for any interference by this court
and accordingly even the third substantial issue which arises in the present
case is decided against the appellants and in favour of the respondents.
85. Before parting with the judgment, it would be relevant to deal
with one more submission raised on behalf of the learned senior counsel for
the appellants on the aspect of PW-3 having stated in his cross-examination
that Nathu performed three marriages and that two of his wives had died
during his life time while the third wife was turned out by him 20 years
back, whose name was Bhulli and thus, in the presence of Bhulli, the
plaintiff did not have right to succeed to the estate of Nathu. In this regard,
it would be relevant to note that no such plea has been taken by defendants
no.1 to 4 in their written statement. No issue with respect to the fact of there
being a third legally married wife of Nathu who was living or of Nathu
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having any other legal representative, was framed by the Court. Neither the
said Bhulli nor any children of Bhulli have made any claim to the property
in question, nor have they moved any application before any revenue
authority for entering mutation in their favour nor have challenged the
mutation proceedings. The judgments of the trial Court or of the Ist
Appellate Court decreeing the suit of the plaintiff and declaring them to be
owners have not been challenged by any of them. Even the proceedings
under Section 145 Cr.P.C. have not been contested by them. The argument
is thus sought to be raised solely on the basis of two lines in the evidence of
PW-3 Bakhshi, who was not the plaintiff but one of the witness of the
plaintiff. The Ist Appellate Court in paragraph 33 of its judgment had
rightly observed that there is nothing on record to show that the said Bhulli
was legally married to Nathu, nor any evidence has been led as to whether
she is alive. It has further been rightly observed that even as per the
evidence of PW-3, on which reliance has been placed upon on behalf of the
appellants to raise the said plea, it is apparent that said PW-3 had stated that
even the said Bhulli was turned out of the house by Nathu 20 years back.
There is nothing on record to show that anyone has heard about the said
Bhulli in the last 20 years as on 16.06.1966, when the evidence of said PW-
3 was recorded or even further thereafter. In such a situation, the Ist
Appellate Court had rightly invoked the provision of Section 108 of the
Indian Evidence Act which requires that whenever there is a question as to
whether a man is alive or dead, and it has come about that he has not been
heard of for seven years by those who would naturally have heard of him if
he had been alive, the burden of proving that he is alive is on the person
who affirms it. In the present case, the sole evidence which has come on
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record of PW-3 shows that the said Bhulli was turned out 20 years back and
there is no evidence that she is alive, although several witnesses have been
examined by both the parties. At any rate, even the fact as to whether the
said Bhulli was legally wedded wife of Nathu, is not established.
Accordingly, the concurrent finding of the trial Court as well as the Ist
Appellate court does not deserve to be set aside on the said ground.
86. Even the plea raised on behalf of the appellants that in the
vernacular, the age of PW-13 is shown to be 85 years which would be in
contradiction to the birth certificate and also to the averments made in the
civil miscellaneous application does not call for setting aside the judgments
of the trial Court as well as the Ist Appellate Court and it would further be
relevant to mention that the evidence of PW-13 has also been recorded in
English language on 09.11.1966 which statement has been duly signed by
the trial Judge which does not record that the age of the plaintiff Kishan was
85 years at the time of giving the said evidence. Moreover, perusal of Ex.P5
which is the birth certificate of said Kishan Singh would show that the same
carries the term "Maghar" which would depict the relevant month and thus,
it is apparent that the said birth certificate is not in accordance with the
English Calendar but as per the "Hindu Samwat Calendar". Moreover,
learned senior counsel for respondent no.1 has also submitted that as per his
instructions, said Kishan Singh had died very old and was more than 100
years of age at the time of his death and thus, the circumstance highlighted
by the learned senior counsel for the appellants to suggest that the age of the
plaintiff in the said circumstances would be 110 years on his death, also
cannot be stated to be such a circumstance so as to call for setting aside the
judgments of the trial Court as well as the Ist Appellate Court.
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87. Keeping in view the above said facts and circumstances, this
Court is of the opinion that the judgments of the trial Court as well as the Ist
Appellate Court are in accordance with law and deserve to be upheld and
the present regular second appeal deserves to be dismissed and is
accordingly dismissed.
88. All the pending miscellaneous applications, if any, shall stand
disposed of in view of the abovesaid judgment.
(VIKAS BAHL)
JUDGE
November 12, 2024
Davinder Kumar/Pawan/Naresh
Whether speaking / reasoned Yes/No
Whether reportable Yes/No
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