Punjab-Haryana High Court
Meena Sharma vs Rama Sharma And Ors. on 11 July, 2007
Equivalent citations: (2008)2PLR149, AIR 2007 (NOC) 2671 (P. & H.)
JUDGMENT Vinod K. Sharma, J.
1. This order will dispose of R.S.A. No. 1278 of 2005 titled Meena Sharma v. Rama Sharma R.S.A. No. 1370 of 2005 titled Meena Sharma v. Rama Sharma and R.S.A. No. 1376 of 2005 titled Om Parkash v. Rama Sharma, as all these three appeals arise out of the judgment and decree passed by the learned Additional District Judge, Jalandhar vide which three appeals filed against the judgment and decrees passed by the learned trial Court accepted by way of common judgment.
2. Meena Sharma had filed a suit for declaration claiming ownership and possession of House No. 31-A Chandan Nagar, Jalandhar with a consequential relief of permanent injunction restraining the defendants from interfering in her peaceful possession. The suit for declaration was filed through her father Om Parkash as her natural guardian and next friend. In the suit it was claimed that Swaran Lata alias Swaran Devi was handicapped and unmarried. Meena Sharma along with her father and other family members lived with Swaran Lata alias Swaran Devi in the house in question. She was served by them during her life time and in lieu of the said services Swaran Lata alias Swaran Devi executed a Will dated 19.4.1984 in her sound disposing mind regarding the house in dispute. The original Will was claimed to be in possession of the defendants who were said to have illegally misappropriated it at the time of the death of Swaran Lata alias Swaran Devi who died on 7.4.1985 and after her death the plaintiff continued to enjoy the house in dispute peacefully. It was claimed that the defendants have got no right, title or interest in the house in dispute and they were wrongly claiming to be the owners. It was claimed that an attempt was made to dispossess her but they could not succeed; hence the suit was filed. The suit was contested by raising a preliminary objection that the suit was not properly valued for the purpose of court-fee and jurisdiction as it was claimed that the market value of the property in question was Rs. 40,000/-. It was claimed that the plaintiff had no locus standi to file this suit. The validity of the site plan was also challenged. However, it was admitted that one Swaran Lata alias Swaran Devi was unmarried and handicapped but it was denied that she was looked after by the plaintiff and other family members in the house in question. The defendants claimed Swaran Lata alias Swaran Devi to be the real sister of defendant Nos. l and 2 and deceased Om Parkash whose legal representatives were brought on record. The defendants claimed themselves to be the legal heirs of Swaran Lata alias Swaran Devi. The Will was said to be forged and fabricated document and not binding on the rights of the defendants in the suit. The allegation of Will having been misappropriated at the time of death of Swaran Lata alias Swaran Devi was also denied. It was claimed that the Will was surrounded by suspicious circumstances. It was claimed that Swaran Lata alias Swaran Devi was looked after by the defendants and in fact, she was staying with them. The will was said to be unnatural document. It was claimed that the plaintiff was tresspasser and a suit had already been filed against them.
3. On the pleadings of the parties following issues were framed in this suit:
1. Whether the plaintiff is the owner in possession of the property in dispute? OPP
2. Whether Miss Swaran Lata alias Swaran Devi executed a valid Will dated 19.4.1984 in favour of the plaintiff? OPP
3. Whether the plaintiff has no locus standi to file the suit? OPD
4. Whether the suit is not properly valued for the purpose of court-fee and jurisdiction? OPD
5. Whether the site plan filed with the plaintiff is not correct? If so its effect? OPD
6. Relief.
4. Ashok Kumar and others also filed suit No. 26 against Meena Sharma and others for declaration that they are owners of half share of House No. 310-A situated at Chan-dan Nagar, Jalandhar with a consequential relief of possession and for the recovery of Rs. 13,875/- as mesne profits for unauthorized use and occupation of this property. The plaintiffs in the said suit had claimed that Swaran Lata alias Swaran Devi was exclusive owner in possession of the property and that she was unmarried. She was said to be real sister of plaintiff Nos. l and 2 and of late Om Parkash represented through plaintiff Nos. 3 to 8. Om Parkash was said to have died on 30.6.1986. It was claimed that Swaran Lata alias Swaran Devi who was handicapped used to live with the plaintiffs. Plaintiffs in the said suit claimed themselves to be the only legal heirs of deceased. After the death of Swaran Lata alias Swaran Devi the plaintiffs were owners of the property by way of inheritance.
5. It was claimed that the Will was null and void and was fake document. It was claimed that the said Will was manipulated with the assistance of her father Om Parkash, Deed Writer and alleged witnesses. It was claimed that the Will was sui-rounded by suspicious circumstances. Other objections regarding the Will were also taken. It was claimed that the possession of the defendant was unauthorized and therefore, they claimed mesne profits. The said suit was contested by defendant No. l in which it was claimed that the plaintiffs had no right, title or interest in the property. The Will dated 19.4.1984 was set up to have been executed in sound disposing mind in favour of Meena Sharma. It was claimed that after the death she had become the exclusive owner of the property. However, relationship of plaintiff with late Swaran Lata alias Swaran Devi was admitted. However, a stand was taken that she never resided with the plaintiff. It was claimed that original Will was not returned in spite of repeated demands. It was claimed that defendant No. l was exclusive owner of he property under the Will dated 19.4.1984. Dismissal of the suit was prayed. Replication was also filed by the plaintiff and on the pleadings of the parties the following issues were framed in this suit:
1. Whether the plaintiffs are owner of the property to the extend(extent?) of 1/2 portion as alleged in the plaint? OPP
2. Whether Miss Swaran Lata alias Swaran Devi executed a valid Will dated 19.4.1984 in favour of Miss Meena Sharma defendant? OPD
3. Relief.
6. Another suit was filed by Ashok Kumar against Meena Sharma for declaration that they are owners of half share of House No. 310-A situated at Chandan Nagar, Jalandhar with a consequential relief of possession and for the recovery of Rs. 13,875/-as mesne profits for unauthorized use and occupation of said portion. In the said suit besides making assertions similar to the one made in Suit No. 26 it was stated that after the death of Swaran Lata alias Swaran Devi an ejectment application was filed against Om Parkash on the ground of non-payment of rent wherein he claimed the ownership regarding the portion of said house on the basis of decree passed in Civil Suit No. 359 of 1983. However, as the relationship was denied, the plaintiff filed suit seeking declaration regarding title. It was claimed that the suit was not filed against Swaran Lata alias Swaran Devi by defendant in order to get the decree of declaration regarding half portion of the house in dispute. It was also claimed that the said decree for declaration was null and void, illegal, unlawful and not binding upon the plaintiff. It was claimed that the decree dated 8.12.1983 did not confer any right in the suit property in favour of the defendants. It was also claimed that the said judgment and decree was liable to be set aside. It was claimed that Swaran Lata alias Swaran Devi was never served in the said case nor she appeared. She did not give her statement nor she appointed any Advocate for herself. It was pleaded that it was a case of impersonation, it was claimed that Swaran Lata alias Swaran Devi had purchased the property and thereafter raised construction of he house. It was also claimed that the said property could not be transferred on the basis of alleged statement. The decree was claimed to be non est. It was claimed that the defendants were only trespassers.
7. The said suit was contested in which an objection was raised that the plaintiffs had no right, title or interest in the property in question. Swaran Lata alias Swaran Devi had executed a valid Will on 19.4.1984 in her sound disposing mind vide which she bequeathed her entire interest in favour of Meena Sharma daughter of Om Parkash deceased. It was claimed that after the death of Swaran Lata alias Swaran Devi, Meena Sharma became owner of the property to the extent of half share and he became owner of the property regarding remaining half share on the basis of the decree passed in Civil Suit No. 359 of 1983. The suit was said to be bad for non-joinder of necessary parties. It was claimed that in the absence of Meena Sharma the suit could not proceed. The relationship of Swaran Lata alias Swaran Devi with the plaintiff was, however, admitted. It was claimed that they never looked after Swaran Lata alias Swaran Devi and further that she never lived along with the plaintiff. The factum of execution of Will as well as transfer by decree was asserted. It was further claimed that the decree did not require registration and factum of fraud or misrepresentation having been played was denied. The claim to compensation was also disputed. After replication was filed the following issues were framed in this suit:
1. Whether the decree dated 8.12.1983 is illegal, null and void? If so to what effect? OPP
2. Whether the plaintiffs are the owners of the property to the extent of one half portion as alleged in the plaint? OPP
3. Whether Swaran Lata alias Swaran Devi executed a valid Will dated 19.4.1984 in favour of Ms. Meena Sharma daughter of Sh. Om Parkash defendant? If so to what effect? OPD
5. Relief.
8. The suit titled as Meena Sharma v. Ashok Kumar and Ors. where the claim was raised on the basis of Will and suit No. 26 of 1997 titled Ashok Kumar v. Meena Sharma for declaration regarding the half portion of house challenging the Will in favour of Meena Sharma were consolidated by the learned trial Court vide order dated 28.9.1998 and accordingly evidence was led in Suit No. 27 of 1996 titled Meena Sharma v. Ashok Kumar. On 8.1.1998 it was ordered that the evidence led by the plaintiff recorded in Civil Suit No. 25 of 1996 titled Ashok Kumar v. Om Parkash will be read as defendants' evidence in consolidated cases.
9. The above Civil Suits were disposed of by way of separate judgments passed in each case. The suit filed by Meena Sharma claiming declaration of ownership on the basis of Will was dismissed whereas suits filed by Ashok Kumar against Meena Sharma and Om Parkash were decreed and decree fro possession with mesne profits was passed in their favour. As the evidence was recorded in consolidated case learned, lower Appellate Court disposed of all the three appeals by way of one judgment which has been challenged by way of three separate regular second appeals.
10. Learned trial court recorded a finding that the plaintiff Meena Sharma failed to prove the will even though she had got permission of the court for leading secondary evidence for proving the same. A finding was also recorded that she failed to prove the existence of Will and further that the plaintiff in spite of permission having been granted for leading secondary evidence failed to prove the same. In order to come to this conclusion the evidence led by Meena Sharma has been duly considered. Learned trial court also recorded a finding that the decree in favour Om Parkash was the outcome of misrepresentation and therefore, was null and void and not binding on the rights of the appellant. The judgment and decrees passed by the learned trial Court were challenged by way of three separate appeals as already observed. It was claimed that the existence of Will and its execution was duly proved in view of the evidence led by Om Parkash as PW6 who was the attorney of Meena Sharma. It was submitted that the Will was executed by Smt. Swaran Lata in favour of Meena Sharma out of love and affection as she was being looked after by her and other family members. Ram Sarup Deed Writer was also examined who claimed that on 19.4.1984 the Will was written at the instance of Swaran Lata alias Swaran Devi by him. It was claimed that the same was read over and explained to him (her?) and signed by the attesting witnesses. The Will was said to have been entered in his register at Serial No. 294 on which the signatures of Swaran Lata alias Swaran Devi were also obtained. The photo copy of the entry of the register was produced as Ex.Pl. Ramesh Chander one of the attesting witnesses was also examined. It was also claimed that Swaran Lata alias Swaran Devi had taken out a polity No. 146413/10 in her name from Pearless Finance and Investment Company in which Meena Sharma was made a nominee as her adopted daughter. It was claimed that after the death, money was released in favour of Meena Sharma. Copy of the policy was also placed on record and an Handwriting Expert was also examined to prove the signatures of Swaran Devi on the Vakalatnama in Civil Suit titled as Om Parkash v. Swaran Lata i.e. Civil Suit No. 359 of 1986. It was claimed that Swaran Lata alias Swaran Devi was an illiterate lady and did not know how to write and therefore, there was variation in her signatures from time to time which were, however, natural variations.
11. Learned lower Appellate Court affirmed the findings of the learned trial Court as regard to the validity of the Will by observing that the loss of Will as claimed by the plaintiff-appellant was doubtful. It was also held that the plaintiff Meena Sharma had miserably failed to prove the existence as well as the contents of the Will. Learned Lower Appellate Court came to the conclusion that in the absence of original Will and surrounding suspicious circumstances the Will in favour of Meena Sharma could not be relied upon therefore, findings of learned trial Court were affirmed. As regards the claim of Om Parkash that the decree in Civil Suit No. 359 of 1983 was wrongly set aside was also rejected. The finding of the learned trial Court in suit titled Ashok Kumar v. Om Parkash was challenged by contending that the passing of the decree by following procedure was duly proved on record. It was also claimed that the plaintiff had failed to establish any fraud or misrepresentation to challenge the decree passed by the court in favour of Om Parkash. It was claimed that in the suit, Swaran Lata alias Swaran Devi was personally served and she had filed written statement after engaging a counsel. It was claimed that Ashok Kumar and others had no right to challenge the said judgment and decree and further that it did not require any registration. However, the learned lower appellate Court observed that in the suit which was decreed in favour Om Parkash, Swaran Lata alias Swaran Devi had not appeared in the court arid the said suit was said to have been decreed On the basis of the statement made by her counsel. The evidence led by the expert was also taken note of and learned lower appellate court affirmed the finding recorded by the learned trial court by observing that through Om Parkash had taken a stand that construction on the plot was made by him no evidence was led in this regard. It was also noticed by the learned lower appellate court that Swaran Lata alias Swaran Devi deceased never came to the court to give statement in favour of Om Parkash and the said suit was decreed merely on the statement of her Advocate. It was also observed that no evidence was produced to prove the service on Swaran Lata alias Swaran Devi by producing any evidence. The learned lower Appellate Court especially took note of the fact that the signatures of Swaran Lata alias Swaran Devi on the written statement and verification were of a person who knew how to write Hindi as the same was written with a free hand whereas the signatures on Vakalatnama and summons were altogether different. The Court, therefore, recorded a finding that the signatures of Swaran Lata alias Swaran Devi did not tally and as she never appeared in the witness box a doubt is created with regard to the decree obtained by Om Parkash. The Court also observed that the decree required registration as there was no pre-existing right of Om Parkash in the property in question and in support of this finding reliance was placed on the judgment of this Court in. the case of Brij Lal v. Smt. Pari Devi (2004-2)137 P.L.R. 445 and thereby affirmed the decree passed by the learned trial Court.
12. Mr. R.C. Setia, learned senior counsel with Mr. Vishal Ranjan, Advocate appearing on behalf of the appellant has challenged the judgment and decrees passed by the courts below by contending that the following substantial questions of law arise for consideration in these appeals:
1. Whether Ashok Kumar and others could challenge the decree passed in favour of defendant Om Parkash in the absence of the same having been challenged by Swaran Lata alias Swaran Devi during her life time?
2. Whether it was open to the Court to consider the existence of the Will having not been proved in spite of the fact that the secondary evidence was allowed to be led?
3. Whether the judgments and decrees of the courts below dismissing the suit for declaration filed by Meena Sharma was the outcome of misreading of the evidence?
13. Mr. R.C. Setia, learned senior counsel appearing on behalf of the appellant vehemently argued that the decree under challenge was passed on 8.12.1983 whereas Swaran Lata alias Swaran Devi had died on 7.4.1985 i.e. almost after 2 years of passing of the decree. The contention of the learned senior counsel, therefore, was that once Swaran Lata alias Swaran Devi did not choose to challenge the decree, her legal heirs could not challenge the decree on the ground of fraud and misrepresentation. In support of this contention, learned senior counsel placed reliance on the judgment of this Court in the case of Hari Singh v. Gurcharan Singh 2003(3) R.C.R. (Civil) 632 (P&H) wherein this Court was pleased to hold as under:
10. Once it is held that the property in dispute was not ancestral in the hands of Inder Singh then apparently the claim of the present plaintiff Hari Singh who is son of Inder Singh and claims share in the property only on the basis of the same being ancestral in nature falls to the ground. If the property was not shown to be ancestral in the hands of Inder Singh then obviously Hari Singh being his on could have no interest in the property and could not make any grievance against the decree suffered by Inder Singh during his life time. It may be relevant to notice here that the judgment and decree impugned in the present suit was suffered by Inder Singh on February 4, 1987. The grievance was never made by Inder Singh against the aforesaid decree nor the same was ever challenged by him. In these circumstances, the plea that the said decree was suffered by Inder Singh because of a fraud played upon him is not sustainable. If the aforesaid decree would have been obtained by playing any fraud upon Inder Singh, then Inder Singh naturally would have challenged the said decree during his life time. He did not do so. After his death Hari Singh cannot be heard to make any grievance on that basis.
14. Mr. R.C. Dogra, learned senior counsel appearing with Shri S.K. Bawa, Advocate, on behalf of the respondents, however, disputed this argument primarily on the plea that the case set up by the plaintiff-respondent was not based on the plea that the fraud had been played on Swaran Lata alias Swaran Devi but the suit was based on the ground that Swaran Lata alias Swaran Devi had never appeared and it was a case of misrepresentation and impersonation.
15. I have considered the arguments raised by the learned Counsel for both the parties and find no force in the arguments raised by the learned senior counsel appearing on behalf of the appellant.
16. As observed earlier in the present case a positive finding on appreciation of evidence has been recorded to the effect that it was not proved on record that Swaran Lata alias Swaran Devi ever appeared in the court or filed any written statement. The Court further held that the transfer of the property in the name of Om Parkash was also not as per procedure of Municipal Committee. Once a finding of fact has been recorded that the judgment and decree was obtained by misrepresentation to the Court and further that the decree obtained was not with the consent of Swaran Lata alias Swaran Devi and was obtained by fraud and misrepresentation in the court the authority relied upon by the appellant would not be applicable to this case. Both the courts by way of concurrent finding of fact have recorded a concurrent finding of fact that the decree was obtained by fraud and misrepresentation/impersonation. The same, therefore, cannot be challenged in the regular second appeal. Thus, this first substantial question of law as framed is answered against the appellant and in favour of the respondent.
17. Mr. R.C. Setia, learned senior counsel appearing on behalf of the appellant thereafter contended that the learned courts below have wrongly come to the conclusion that the Will was not in existence. It was vehemently contended by the learned senior counsel that in the present case the plaintiff-appellant was allowed to lead secondary evidence which could only be allowed after the loss of the original was proved. The contention of the learned senior counsel therefore was that as the secondary evidence was allowed to be led and the said order has obtained finality it was not open to the courts below to have doubted the existence of the Will. However, I find no force in this contention also.
18. In Phipson on Evidence, 9th Edition at page 544 occurs the following passage:
The rule requiring-production of the attesting witnesses provided their names are known holds, although the document is lost or destroyed...where both the documents is lost and the attesting witness is dead, proof of handwriting by someone who remembers having seen the document, although admissible is not indispensable.
Again at page 570 it is pointed out:
The party tendering secondary evidence must prove the existence and execution of the document directly if possible, or presumptively where not.
Again in Taylor on Evidence 11th Edition. Vol. 1 at page 326 it is pointed out:
In all cases before such evidence (meaning secondary evidence) will be admissible, it must be shown that the original instrument was duly executed and was otherwise genuine. If the instrument were of such a nature as to require attestation the attesting witness must, if known, be called, or in the event of his death his handwriting must be proved precisely in the same manner as if the deed itself has been produced, though, if it cannot be discovered who the attesting witness was this strictness of proof will, from necessity, be waived.
Thus, it has to be held that the existence of the document is required to be proved after the, parties lead evidence and for purpose of allowing secondary evidence the court has to only form opinion about the loss of the document and not with regard to its existence as the same is required to be proved by leading secondary evidence to prove the document. This view of mine also finds support from the judgment of this Court in the case of Amar Chand v. Smt. Kaushalya 1985(2) All India Land Laws Reporter 46 wherein it has been held as under:
2. Section 65 of the Indian Evidence Act deals with the case in which secondary evidence relating to documents can be given. The relevant part of this section reads:
Secondary evidence may be given (as to) the existence, condition or contents of document in the following cases:
(a)-
(b)-
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time:
3. According to the petitioner, Gokal was his maternal uncle. He claims the property of Gokal on the basis of the Will allegedly executed by the latter in his favour and registered on November 25, 1938. It is understood that such original Will, if any, ought to have been in possession of the petitioner. The plea of the petitioner is that the same has been lost. The petitioner thus, made out a case for leading secondary evidence about the Will under Section 65(c) of the Indian Evidence Act. The learned trial Judge misdirected himself by recording a finding that the original Will had not been executed and that it had not been lost, the stage when the petitioner sought permission to lead secondary evidence. The occasion for recording a finding on this point for or against the petitioner would arise after the parties have concluded evidence. The impugned order of the trial Court, therefore, cannot be sustained.
19. It may also be noticed that besides doubting the existence of the Will the courts below have also recorded a positive finding that the plaintiff-appellant has failed to prove the execution of the original Will. On appreciation of evidence, learned courts below have rejected the evidence led by the plaintiff-respondent to prove the Will. Thus, the second substantial question of law as framed is also answered against the appellant.
20. Mr. R.C. Setia, learned senior counsel appearing on behalf of the appellant challenged the finding of the courts below on the ground that the finding of the learned courts below cannot be sustained as the same are the outcome of misreading of evidence. The contention of the learned senior counsel was that the plaintiff-appellant had produced the scribe as well as marginal witnesses and therefore, the evidence has been misread to arrive to the conclusion that the Will was not proved on record. He made reference to the finding recorded by the learned lower appellate court wherein it has been mentioned that PW-3 the alleged marginal witness of the Will during his cross-examination has stated that though he had not seen the Will till date has been wrongly recorded. According to the learned senior counsel for the appellant he made no such statement and therefore, it was a case of misreading of evidence on record. However, this contention of the learned senior counsel appearing on behalf of the appellant cannot be accepted.
21. It may be noticed that in the cross-examination DW Ramesh Chander had categorically mentioned as under:
I did not see the Will about which I made statement on 5.10.1996, on that day, I did not see the Will ever.
Therefore, it cannot be said that the judgment is based on misreading of evidence as is sought to be projected. The learned courts below, therefore, on appreciation of evidence have recorded a concurrent finding of fact that the plaintiff-respondents have failed to prove the Will and therefore, dismissed the suit filed by Meena Sharma for declaration.
In view of what has been stated above, there no merit in these appeals which are accordingly dismissed in limine.