Himachal Pradesh High Court
______________________________________________________________________ vs Dhani Ram And Others on 8 July, 2016
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.: 102 of 2007
.
Reserved on: 03.06.2016
Date of Decision: 07.07.2016
______________________________________________________________________
Tilak Ram .....Appellant.
Vs.
Dhani Ram and others .....Respondents.
of
Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1 Yes.
rt
For the appellant: Mr. Vinod Gupta, Advocate.
For the respondents: Mr. G.R. Palsra, Adovocate.
Ajay Mohan Goel, J. :
The present appeal has been filed by the appellant-defendant against judgment passed by the Court of learned Additional District Judge, Mandi in Civil Appeal No. 47 of 2004 dated 28.12.2006 vide which, the appellate Court has dismissed the appeal filed by the present appellant and upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Chachiot at Gohar in Civil Suit No. 24 of 2002 dated 14.01.2004.
2. This appeal was admitted on the following substantial questions of law on 29.11.2010:
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 2
1. Whether the devolution of interest in coparcenary property on the death of a male Hindu having interest in such a property, having been survived by the family relation specified in Clause 1 .
of the schedule shall be treated as self acquired property and is liable to devolve by testamentary or intestate succession.
2. Whether Section 6 of the Hindu Succession Act postulates that a family having acquired interest in coparcenary property after the death of a husband of could further devolve the property by testamentary ror intestate succession. If so, its effect thereto.
3. rt Brief facts necessary for the adjudication of the present case are that the plaintiffs/respondents (hereinafter referred to as 'plaintiffs') filed a suit for declaration and injunction to the effect that the suit land was recorded in joint ownership and possession of plaintiffs and Smt. Dromti, Wd/o late Sh. Som Dutt and one another as per revenue records.
According to the plaintiffs, the suit land was earlier owned and possessed by one Sh. Poushu, grand father of plaintiffs No. 1 and 2 and great grand father of plaintiffs No. 3 to 5. After the death of Sh. Poushu, the suit land was inherited by two sons, namely Tana and Mastu. Thus, the suit land was ancestral, joint Hindu family and coparcenary property of the plaintiffs. It was further averred that Tana had three sons, namely Tulsi Ram, Hari Ram and Rameshwar. Tulsi Ram was the father of plaintiffs No. 3 to 5. Mastu died leaving behind one son, Som Dutt and Dromti was the widow of said Som Dutt. Som Dutt had died issueless and after his ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 3 death, his property was inherited by the plaintiffs being coparceners and legal heirs of the husband of Smt. Dromti. As per the plaintiffs, after the death of Dromti, they went to Patwari Halqua to inform about her death.
.
There they came to know that defendant had come to Patwarkhana with an alleged Will of Smt. Dromti qua the suit land. Plaintiffs on inquiry came to know that the alleged Will had been executed on 17.12.1994 which was procured by defendant qua the suit land, which was a result of of clear manipulation on the part of defendant, who had played an active role in the execution and registration of the said Will in collusion and in connivance with the scribe and attesting witnesses of the same, which rt was without the consent and knowledge of the testator. According to the plaintiffs, the Will was neither a genuine nor valid one and late Smt. Dromti had not executed any such Will nor otherwise she could have had legally bequeathed the said property to the defendant because the property was ancestral, joint Hindu family and coparcenary property of the parties. It was further stated in the plaint that the alleged Will was shrouded with suspicious circumstances as Dromti was an old and ailing woman of more than 80 years of age and she besides being feeble was also not mentally capable of expressing her free mind. According to the plaintiffs, the alleged Will was the outcome of mis-representation and collusion between the defendants, scribe and witnesses as the testator during her life time never disclosed the alleged Will to the plaintiffs who are her husband's, brothers and nephews. As per the plaintiffs, they were ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 4 looking after and rendering all services to Dromti and there was no occasion for her to execute the alleged Will in favour of the defendant.
4. On these basis, the suit was filed by the plaintiffs for .
declaration that Will No. 127, dated 17.12.1994 was wrong, illegal, null and void and inoperative and that it did not confer any right, title or interest upon the defendant. According to the plaintiffs, the defendant was also liable to be restrained from causing any unlawful interference in of the peaceful possession and enjoyment of the plaintiffs over the suit property through a decree of permanent prohibitory injunction.
5. In the written statement, the defendant denied the case of the rt plaintiffs. According to the defendant, the suit land was joint inter se the parties and the share of the deceased Dromti was in the hands of the defendant because Dromti was living in the house of defendant and was looked after by him. As per the defendant, Dromti had executed and registered the Will in issue with full consent and willingness and the plaintiffs were fully aware about the said Will.
6. On the basis of the pleadings of the parties, learned trial Court framed the following issues on 17.06.2003:
1. Whether Will No. 127 dated 17.12.1994 us a genuine Will, as alleged? OPD
2. Whether the suit of the plaintiff is not maintainable in the present form?OPD
3. Whether the suit of the plaintiff is barred by limitation? OPD
4. Whether the plaintiff has no cause of action to file the suit? OPD ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 5
5. Whether the plaintiffs are estopped by their own act and conduct to file the suit? OPD
6. Whether the suit land is ancestral, Joint Hindu family, Coparcenary property of the plaintiffs, as .
alleged? OPP
7. Whether the plaintiffs are legal heirs of husband of late Smt. Drompti Devi, as alleged? OPP
8. Relief.
7. On the basis of averments produced on record by the of respective parties, the following findings were returned on the said issues by the learned trial Court:
rt Issue No. 1:
Issue No. 2:
No.
No.
Issue No. 3: No.
Issue No. 4: No.
Issue No. 5: No.
Issue No. 6: Yes.
Issue No. 7: Yes.
Relief: Suit succeeds and is decreed per operative
part of the judgment.
8. The suit of the plaintiffs was accordingly decreed in the following terms:
"It is ordered that the suit of the plaintiffs succeeds and is decreed to the effect that plaintiffs who are in possession of the suit land and being legal heirs of husband of deceased Drompti Devi have every right to protect their land from defendant, who has failed to succeed the property on the basis of alleged will, which has been declared ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 6 by me as invalid and void. The defendant is also restrained by way of permanent prohibitory injunction from causing any sort of interference in peaceful possession and enjoyment of the plaintiffs .
over the suit land. Keeping in view the facts and circumstances of the case, the parties are left to bear their own costs."
9. The learned trial Court on the basis of appreciation of of evidence placed on record by the respective parties thus held that the defendants had failed to prove the attestation of the alleged Will as per the requirements of law and accordingly, the alleged Will Ex. DW2/A was rt bad and invalid Will. It further held that defendant Tilak Raj had taken active part in the execution of the Will as he had called the witnesses himself and had got the Will registered himself and signatures of the marginal witnesses were also procured by him afterwards, which also rendered the Will highly suspicious. Thus, the learned trial Court held that Will Ex. DW2/A was not a genuine Will. Learned trial Court further held that the suit land was ancestral joint Hindu family and coparcenary property of the plaintiffs and they were the legal heirs of deceased husband of Dromti.
10. Feeling aggrieved by the said judgment and decree passed by the learned trial Court, the defendant filed an appeal.
11. The said appeal was dismissed by the learned Appellate Court vide judgment dated 28.12.2006 in Civil Appeal No. 47 of 2004.
::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 712. Learned Appellate Court framed the following points for determination:
"1. Whether the lower Court had not .
granted sufficient opportunity to the defendant to lead evidence and the defendant is entitled to lead additional evidence?
2. Whether the judgment and decree are not sustainable in the eyes of law?
3. Final order."
of
13. The learned Appellate Court returned the following findings on the points so formulated by it:
rt "Point No. 1: No. Point No. 2: No. Final order: Appeal dismissed as per operative part of judgment.
14. It was held by the learned Appellate Court that sufficient opportunities were granted to the defendant by the learned trial Court to lead evidence and the defendant was thus not entitled to lead any additional evidence. Learned Appellate Court held that the facts stated by the defendant in his application did not fall within the purview of Order 41 Rules 28, 29 and Sections 107 and 151 of the Code of Civil Procedure.
Learned Appellate Court also held that it stood proved on record that the suit land was ancestral, joint Hindu family and coparcenary property qua Dromti and the plaintiffs and they being legal heirs of Som Dutt had inherited the same. According to the learned Appellate Court, the findings ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 8 returned to this effect by the learned lower Court did not require any interference. It also held that the execution of the Will had not been proved in accordance with law as DW-2 and DW-3 who were the attesting .
witnesses had categorically stated that Smt. Dromti had not put her thumb mark in their presence on the Will. Learned Appellate Court has also held that both these witnesses had stated that they signed the Will later on which was already prepared. Learned Appellate Court further of held that the defendant had taken prominent part in the execution of the Will, which fact stood admitted by defendant Tilak Raj in his cross-
examination and thus, the execution of the Will was shrouded by rt suspicious circumstances, which had not been removed by the defendant. Therefore, on the basis of the said findings returned by the learned Appellate Court, it dismissed the appeal.
15. I have heard the learned counsel for the parties and also gone through the records of the case as well as the judgments passed by the learned Courts below.
16. The factum of the alleged Will executed by deceased Dromti not being proper and valid has been concurrently decided by both the Courts below in favour of the plaintiffs and against the appellant/defendant. Judgments to this effect passed by both the Courts below has not been challenged in the Second Appeal as is evident from the grounds of appeal. Therefore, this Court shall now return its findings on the substantial questions of law, on which the appeal was admitted.
::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 917. Before proceeding further, it is relevant to refer to certain judgments of Hon'ble Supreme Court with regard to the scope of interference by this Court while exercising its power under Section 100 of .
18. The Hon'ble Supreme Court in Vishwanath Agrawal Vs. Sarla Vishwanath Agarawal (2012) 7 Supreme Court Cases 288 in paragraphs No. 36 and 37 has held:
of "36. In Major Singh v. Rattan Singh (Dead) by LRs and others[15], it has been observed that when the courts below had rejected and disbelieved the rt evidence on unacceptable grounds, it is the duty of the High Court to consider whether the reasons given by the courts below are sustainable in law while hearing an appeal under Section 100 of the Code of Civil Procedure.
37. In Vidhyadhar v. Manikrao and another[16], it has been ruled that the High Court in a second appeal should not disturb the concurrent findings of fact unless it is shown that the findings recorded by the courts below are perverse being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.
We may note here that solely because another view is possible on the basis of the evidence, the High Court would not be entitled to exercise the jurisdiction under Section 100 of the Code of Civil Procedure. This view of ours has been fortified by the decision of this Court in Abdul Raheem v. Karnataka Electricity Board & Ors."
::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 1019. The Hon'ble Supreme Court in Veerayee Ammal Vs. Seeni Ammal (2002) 1 Supreme Court Cases 134 has held:
.
"7. Section 100 of the Code of Civil Procedure (hereinafter referred to as "the Code") was amended by the Amending Act No.104 of 1976 making it obligatory upon the High Court to entertain the second appeal only if it was satisfied that the case involved a substantial question of law. Such question of law has of to be precisely stated in the Memorandum of Appeal and formulated by the High Court in its judgment, for decision. The appeal can be heard only on the question, rt so formulated, giving liberty to the respondent to argue that the case before the High Court did not involve any such question. The Amending Act was introduced on the basis of various Law Commission Reports recommending for making appropriate provisions in the Code of Civil Procedure which were intended to minimise the litigation, to give the litigant fair trial in accordance with the accepted principles of natural justice, to expedite the disposal of civil suits and proceedings so that justice is not delayed, to avoid complicated procedure, to ensure fair deal to the poor sections of the community and restrict the second appeals only on such questions which are certified by the courts to be substantial question of law. We have noticed with distress that despite amendment, the provisions of Section 100 of the Code have been liberally construed and generously applied by some judges of the High Courts with the result that objective intended to be achieved by the amendment of Section 100 appears to have ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 11 been frustrated. Even before the amendment of Section 100 of the Code, the concurrent finding of facts could not be disturbed in the second appeal. This Court in Paras Nath Thakur v. Smt.Mohani Dasi .
(Deceased) & Ors. [AIR 1959 SC 1204] held:
"It is a well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Cour,t on second appeal, cannot go into questions of fact, however, of erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions. Indeed, the learned counsel for the plaintiff-
rt respondents did not and could not contend that the High Court was competent to go behind the findings of fact concurrently recorded by the two courts of fact."
8. To the same effect are the judgments reported in Sri Sinha Ramanuja Jeer Swamigal v. Sri Ranga Ramanuja Jeer alias Emberumanar Jeer & Ors. [AIR 1961 SC 1720], V.Ramachandra Ayyar & Anr. v. Ramalingam Chettiar & Anr.[AIR 1963 SC 302] and Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa [AIR 1963 SC 1633]. After its amendment, this Court in various judgments held that the existence of the substantial question of law is a condition precedent for the High Court to assume jurisdiction of entertaining the second appeal. The conditions specified in Section 100 of the Code are required to be strictly fulfilled and that the second appeal cannot be decided on merely equitable grounds. As to what is the substantial question of law, this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spinning & ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 12 Manufacturing Co.Ltd. [AIR 1962 SC 1314] held that:
"The proper test for determining whether .
a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy of Council or by the Federal Court or is not free from difficulty or calls for discussion or alternative views. If the question is settled by the highest court or the rt general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
9. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar & Ors. [JT 1999 (3) SC 163] this Court again considered this aspect of the matter and held:
"6. If the question of law termed as substantial question stands already decided by a large bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as substantial ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 13 question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial .
question of law. But where it is found that the appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot of be termed to be an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India & Anr. v. Ramakrishna rt Govind Morey (AIR 1976 SC830) held that whether trial court should not have exercised its jurisdiction differently is not a question of law justifying interference."
10. The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not clothe the High Court to assume the jurisdiction by terming the question as substantial question of law. In this case Issue NO.1, as framed by the Trial Court, was, admittedly, an issue of fact which was concurrently held in favour of the appellant-plaintiff and did not justify the High Court to disturb the same by substituting its own finding for the findings of the courts below, arrived at on appreciation of evidence."
::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 1420. Similarly, it has been held by the Hon'ble Supreme Court in Satya Gupta Vs. Brijesh Kumar (1998) 6 Supreme Court Cases 423:
.
"16. At the outset, we would like to point out that the findings on facts by the Lower Appellate Court as a final Court on facts, are based on appreciation of evidence and the same cannot be treated as perverse or based on no evidence. That being the position, were] are of of the view that the High Court, after reappreciating the evidence and without finding that the conclusions reached by the Lower Appellate Court were not based on the evidence, reversed the conclusions on facts on rt the ground that the view taken by it was also a possible view n the facts. The High Court, it is well settled, while exercising jurisdiction under Section 100, C.P.C., cannot reverse the findings of the Lower Appellate Court on facts merely on the ground that on the facts found by the Lower Appellate Court another view was possible."
21. It has been urged in the present appeal that the judgments passed by both the learned Courts below are liable to be set aside because both the Courts below have erred in not appreciating the provisions of Section 6 of the Hindu Succession Act, and the fact that devolution of interest in coparcenary property on male Hindu having interest in such property shall be treated as self acquired property and as such, it could devolve by testamentary or intestate succession. It was on this ground that learned counsel for the appellant urged that the ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 15 judgments and decrees passed by both the Courts below were liable to be set aside. No other point was argued.
22. Section 6 of the Hindu Succession Act as it stood before its .
amendment in the year 2005 is reproduced hereinbelow:
"6. Devolution of interest in coparcenary property: When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve of by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule rt or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakahsra coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1. For the purposes of this Section, the interest of a Hindu Mitakshra coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2. Nothing contained in the proviso to this Section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 16
23. As per the plaintiffs, they are the brothers and nephews of Som Dutt, S/o Poushu and husband of deceased Dromti. Defendant claims himself to be nephew of Dromti. According to him, Dromti was his .
Bua. Interestingly, the case set up by the present appellant in the written statement filed by him to the plaint was that the share of deceased Dromti Devi was in the hands of the defendant because deceased Dromti was living in the house of defendant and she was looked after by him.
of Thus, according to him, for this reason, she had executed the registered Will in his favour and the defendant was therefore owner of the suit property by virtue of the same having been bequeathed in his favour by rt deceased Dromti by way of a Will. It is therefore clear that as far as the written statement filed by the defendant is concerned, it was not his case that he had inherited the property by virtue of the provisions of the Hindu Succession Act.
24. As I have already mentioned above, the factum of the alleged Will executed by Dromti not having been proved in accordance with law has been concurrently decided against the appellant by both the learned Courts below. This finding has attained finality as there is no substantial question of law framed challenging the findings so returned by the learned Courts below. The substantial questions of law on which the present appeal has been argued by the appellant are only with regard to devolution of interest in coparcenary property on the death of male Hindu having interest in the same who is survived by a family relation specified in Clause-1 of the Schedule and the effect of the provisions of Section 6 of ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 17 the Hindu Succession Act. A perusal of the record of the case categorically demonstrates the relationship between the plaintiffs and deceased Dromti and her husband. It is also established from the .
material on record that deceased Dromti inherited the suit property after the death of her husband. The property inherited by her was not the self acquired property of her husband, but the same had been inherited by her husband from his ancestors. Further, the evidence produced on of record by the plaintiffs, i.e. pedigree table Ex.-PA, mutation, Mauja Katwahari, Number Hadbast 92 and Jamabandi for the year 1938-39, mutation No. 67 Ex. PW-3/A clearly establish that the suit land was rt ancestral joint Hindu family and coparcenary property. The defendant has not been able to prove to the contrary.
25. It is also an admitted position that Som Dutt and Dromti Devi had no children. Section 15 of the Hindu Succession Act provides as under:
"15. General rules of Succession in the case of female. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 18
(2) Notwithstanding anything contained in sub- section (1)-
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any .
son or daughter of the deceased (including the children of any pre-deceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in of the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-
rt section (1) in the order specified therein, but upon the heirs of the husband."
26. In the present case, it is not disputed that the suit property was inherited by deceased Dromti from her husband. Her husband had inherited the said property from his forefathers. Section 15(1)(b) of the Hindu Succession Act provides that the property of a female Hindu dying intestate shall devolve in the absence of sons and daughters (including children of any pre-deceased son or daughter) upon the heirs of the husband. Section 15(1)(2) further provided that any property inherited by a female Hindu from her husband or from her father-in-law shall devolve in the absence of any son or daughter of the deceased not upon other heirs referred in Sub-section (1) in the order specified therein but upon the heirs of the husband.
::: Downloaded on - 15/04/2017 20:46:52 :::HCHP 1927. Plaintiffs admittedly are the heirs of the husband of the deceased Dromti. Therefore, in this view of the matter, in my considered view, the suit property after the death of deceased Dromti was to vest .
upon the plaintiffs and plaintiffs alone. Reliance being placed by the learned counsel for the appellant under the provisions of Section 6 of the Hindu Succession Act is totally misplaced. A perusal of the judgment passed by the learned trial Court will demonstrate that it has dwelled into of all these aspects of the matter and concluded that the suit property was to devolve upon the plaintiffs in view of the provisions of Section 15 of the Hindu Succession Act.rt
28. Similarly, the learned Appellate Court has also decided this point in favour of the plaintiffs by relying upon the provisions in the revenue records as well as the pedigree table and after concluding that the suit property was inherited by Dromti Devi from the common ancestor of deceased husband and plaintiffs namely Shri Poushu.
29. In my considered view, there is no infirmity in the findings which have been returned in this regard by both the learned Courts below. The substantial questions of law are answered accordingly.
Therefore, as there is no merit in the present appeal, the same is accordingly dismissed with costs. All the miscellaneous applications also stand disposed of.
(Ajay Mohan Goel) Judge July 07, 2016 (bhupender) ::: Downloaded on - 15/04/2017 20:46:52 :::HCHP