Himachal Pradesh High Court
Bhagwan Dass Deceased Through Lrs vs Tulu @ Tula Ram & Another on 19 December, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
RSA No. 244 of 2007
.
Reserved on: 4.12.2019
Date of Decision: 19.12.2019
Bhagwan Dass deceased through LRs. .....Appellant
Versus
Tulu @ Tula Ram & another ....Respondents.
Coram: r
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes
For the appellant: Mr. Neeraj Gupta, Sr.
Advocate with Ms. Rinki
Kashmiri, Advocate.
For the respondents: Mr. G. D. Verma, Sr. Advocate
with B. C. Verma, Advocate.
Sureshwar Thakur, Judge:
The original plaintiff, one Beli Ram, since deceased hence expired, during, the pendency of Civil Suit, bearing No. 265 of 1998, hence, before the learned trial Judge concerned, and, upon, his demise, his legatee 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -2-one Bhagwan Dass, become permitted to be substituted in his place, through, an order recorded on 14.5.2002, by, the learned trial Judge concerned. The afore orders, .
became assailed, by the nonapplicant, through, the latter instituting, a, Civil Revision Petition, bearing No. 445 of 2002, before this Court, and, thereon, this Court, through an order, made, on 7.5.2003, terminated the afore revision petition, through its making a direction, for, also impleading, one Jhanji Devi, the, widow of afore Beli Ram, in the array, of, the defendants, rather, as a proforma defendant. However, during, the pendency of the instant RSA, before this Court, the afore Jhanji Devi also, died issueless, and, given hers not becoming succeeded, by her LRs, excepting, the, LRs of deceased Bhagwan Dass, latterwhereof become substituted, in, place, of, the afore deceased Beli Ram, hence, this Court through an order, made, on 18.9.2019, upon, CMP No. 8914 of 2018, allowed the espoused therein prayer, vis ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -3- avis, the name of the afore Jhanji Devi, becoming deleted, from, the array, of, proforma respondents.
2. The afore Beli Ram, during, his lifetime, .
instituted a declaratory suit, seeking therethrough annulment, of, the gift deed, (a) made by him, visavis, the suit property, and, therethrough he strived, for, rendition, of, a decree of possession, visavis, the suit a decree, rof, to land, and besides thereto also strived, for, rendition, of, perpetual injunction, becoming pronounced, qua the defendant, and, both the learned courts below rather declined, to, make, the, afore relief(s), qua him, (b) and, becoming aggrieved therefrom, his, afore legatee, one Bhagwan Dass, now substituted by his LRs, strived to impugn, the, concurrently recorded verdicts, initially made, upon, Civil Suit No. 2651 of 1998, by, the learned trial Judge, and, latter by the learned first appellate Court, upon, Civil Appeal No. ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -4- 61S/13, through his constituting, the, extant Second Appeal before this Court.
3. When, the, extant appeal came for hearing, .
before this Court, on 19.5.2014, this Court, had, admitted the appeal, instituted by the defendant/ appellant, against, the judgment, and, decree, rendered, by the learned first Appellate Court, upon, the hereinafter extracted, substantial questions of law, for, its hence making, an adjudication thereon:
1. When the suit was instituted by the donor himself seeking to revoke the Gift Deed ext. PW2/A by invoking the clause of revocation, have not both the courts below wrongly proceeded to dismiss the same by recording the findings that the donee has never refused to maintain the deceased plaintiff without there being any oral and documentary evidence, cogent and satisfactory so as to sustain such findings?
::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -5-2. When Smt. Jhanji widow of deceased plaintiff was arrayed as proforma defendant in the suit land appellant Sh.
.
Bhagwan Dass was substituted as a legal representative of the deceased beli Ram after his death, has not the Trial Court acted in an erroneous and perverse manner in dismissing the suit by holding that the pleadings after the death of Sh. Beli Ram were not amended?
3. Whether the Lower Appellate Court has committed grave procedural illegality and committed grave error of law in refusing the application for amendment filed by plaintiffappellant to meet the objections raised by the Trial Court to dismiss the suit? Has not the Lower Appellate Court committed grave illegality in dismissing the application on such grounds which are not legally sustainable?
Substantial questions of Law No.1 to 3:
::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -6-4. The learned First Appellate Court, has, declined the afore espoused relief, to the aggrieved plaintiff, as strived, rather, visavis, the suit khasra .
numbers, espousal(s) whereof, were, made dependent, upon, an, imperative contingent condition borne in Ext.
PW3/A, rather, becoming breached (i) and, hence, a, declaratory decree, for, annulling thereof became therein, to claimed, given, the, apt imperative condition borne becoming evidently breached, and, hence thereupon Ext. PW3/A ipsoofacto rather begetting rescission, (ii) condition whereof appertains, to the donor, becoming enjoined to serve, the, donee, as well as his wife, and, upon proven disservice, visavis, both rather, the, gift terminating, (iii) the afore imperative condition, as, embodied therein, became construable, as, operating as an apt contingent condition, and, also hence its subsisting only, during the lifetime(s), of, the donor, and, not thereafter, (iv) and, thereupon, Bhagwan ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -7- Dass, who, became substituted in place of the donor, rather holding no locus standi, to, cast any valid challenge, visavis, the afore condition, as, embodied in .
the gift, rather becoming infringed, nor his becoming construed, to, hold any befitting locus, to, hence seek, the, annulment, of, Ext. PW3/A. However, the afore assigned reasons, by the learned trial Judge, is, a gross overloking, by, him, (a), visavis during, his lifetime, the donor Beli Ram rather instituting Civil Suit No.265 of 1998, before the learned trial Judge, and, thereafter, though during, the, phase, of, the afore civil suit being subjudice, though he expired, yet, hence his legatee one Bhagwan Dass, became substituted, in his place,(b) and, also visavis, the impact, of, the aforestated order, as made, by this Court, upon, the afore Civil Revision Petition, wherethrough, his widow, one Jhanji Devi became ordered, to, become hence impleaded, as a proforma defendant, in, the afore civil suit. The effects, ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -8- visavis, the donor one Beli Ram, during his lifetime, casting, a, challenge, upon, Ext. PW3/A, and, his challenge becoming epicentered, upon, rather the afore .
imperative contingent condition, as, borne therein, and, appertaining, to, the defendant hence rendering service to him, and, to his wife, rather, becoming breached, (i) thereupon the apposite rescinding action, as became nullifying Ext.
r to initiated, during his lifetime, by the donor, for, hence PW3/A, and, challenge whereof, becoming rested, upon, the afore alluded imperative contingent condition, becoming breached, hence became well constituted. (ii) Whereupons hence even upon his demise, rather upon, his LRs, upon, theirs' proving qua the afore factum probandum, becoming breached, hence all the, right(s), ethic(s), and, interest(s), visavis, the suit property, rather would become devolved, visavis, him/them, (iii) thereupon, unless, evidence became adduced, hence negating, the afore cast averments, in ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -9- the suit, as, became strived by the afore donor Beli Ram, or, evidence became adduced, visavis, during, his lifetime or even during, the, lifetime, of, his widow, both .
hence becoming meted satisfactory service, by, the donee, (iv) thereupon, given, breach becoming visited, upon, the afore imperative condition, condition whereof, hence, is, a condition, in, perpetuity, rather would render, the apposite gift deed, becoming amenable, for, becoming annulled, (v) as, the afore condition, rather is a covenant, hence running, along with the land, and, upon, proven breach thereof, the, gift deed, becomes entailed, with, the ill consequence, visavis, its begetting termination.
5. Even though, Jhanji Devi, the widow, of, donor one Beli Ram, in her crossexamination, has, acquiesced, to, a affirmative suggestions, as, became meted to her, visavis, hers belonging, to, a scheduled caste community, (a) and, besides thereto, when she ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -10- has also acquiesced, visavis, hers rather not cooking meals, for, her deceased husband, (b) contrarily, when she makes echoing(s), in her crossexamination, visa .
vis, the defendant rendering service, to, the deceased donor Beli Ram. Moreso, (c) further when, she, in her crossexamination, also made articulations, visavis, the defendant, Tulu Ram hence staying along with her, house. to and, with her deceased husband, rather in the latters Consequently, even though, therefrom it may become possible, to, make a conclusion, visavis, the afore condition, as, borne, in Ext. PW3/A, hence, enjoining, upon, the donee, to, throughout the donors' lifetime, render service qua him, rather becoming not proven, to, become breached. However, therefrom it may yet be impossible, to, also infer, visavis, the afore imperative condition, as, embodied therein, visavis, the defendant, also during the lifetime, of, Jhanji Devi, hence serving, the, latter, and, thereupon, the, afore ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -11- condition, as embodied in Ext. PW3/A, also becoming not breached.
6. PW2 Jhanji Devi, though, stepped into the .
witness box, for, proving, visavis, the defendant Tulu Ram, hence breaching, the, afore condition, as, borne in Ext. PW3/A, yet, the defendants' counsel rather failed, to, mete any suggestion, to her, hence during, her crossexamination, striving, to, r for, rebut, to the hence therethrough, efficacy, of, the his, afore articulations, embodied, in, her examinationinchief.
The effect, of, the afore lack, of, any suggestion becoming meted, to, PW2,the widow, of, the deceased donor, and, appertaining to the defendant, during, her lifetime, rendering service to her. (a) Consequently, the afore condition, as, borne in Ext. PW3/A, hence making, it, incumbent, upon him, to also render service to her, rather becoming hence acquiesced, to, become rather breached, (b) thereupon it would be befitting to ::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -12- conclude, visavis, dehors, the defendant proving, visa vis, his rendering service, to, the donor, during, the latters' lifetime, yet, his failing to prove the afore .
condition, as, embodied in Ext. PW3/A, hence enjoining him, to also, render service, to the widow, of, the deceased donor. The consequence thereof is, visavis, the declaratory decree, as, strived to become rendered, plaintiff.
r to becoming amenable, to, become granted, visavis, the
7. The above discussion, unfolds, qua the conclusion(s), as, arrived by the learned Courts below, being not based, upon a proper, and, mature appreciation, of, evidence, on, record. The substantial questions, of law, are, answered, accordingly.
8. In view of the above discussion, the instant appeal, is, allowed, and, the judgments, and, decrees impugned, before this Court, are, set aside.
Consequently, the suit of the plaintiff, is, decreed.
::: Downloaded on - 21/12/2019 20:25:49 :::HCHP -13-Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.
.
(Sureshwar Thakur)
Judge
19th December, 2019
(kck)
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