Himachal Pradesh High Court
Surender Kumar vs Palmo Devi Rt on 1 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA Nos. 108 and 109 of 2022 Reserved on: 31.10.2023 .
Date of Decision: 01.12.2023
1. RSA No. 108 of 2022 Surender Kumar ...Appellant.
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Versus
Palmo Devi rt ...Respondents.
2. RSA No. 109 of 2022
Surender Kumar ...Appellant.
Versus
Palmo Devi ...Respondents.
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Appellant(s) : Mr. R.K. Bawa, Senior Advocate with Mr. Ajay Kumar Sharma, Advocate, in both the appeals.
For the Respondent(s) : M/s Parveen Kumar Chandel and Sanjay Singh, Advocates, in both the appeals.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 2Rakesh Kainthla, Judge The present appeals are directed against the .
judgment & decree dated 22.4.2022, passed by learned Additional District Judge, Kullu, District Kullu, H.P., vide which the appeal filed by the respondent(plaintiff before the learned Trial Court) was allowed and the cross objections filed by the of appellant (defendant before the learned Trial Court) were dismissed. (Parties shall hereinafter be referred to in the same rt manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking a declaration that she is the owner in possession of the suit land as mentioned in para-1 of the plaint, and mutation No. 10222 regarding the suit land in favour of defendant is wrong, illegal, null and void. It was pleaded that the plaintiff is the legally wedded wife of Bir Chand and the marriage between them was solemnized as per the customs 50 years back before the filing of the suit. The plaintiff is the legally wedded wife of Beer Chand. She discharged her matrimonial obligations faithfully. No issue was born to the plaintiff and Beer ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 3 Chand. Beer Chand died intestate on 7.2.2014. The plaintiff performed his last rites. Beer Chand had purchased the property .
at Fati Shamshi and at Kullu. Plaintiff and Beer Chand had constructed a house at Shamshi. The estate of Beer Chand was inherited by the plaintiff as his sole legal heir. The defendant in connivance with the revenue authorities got the mutation of the of estate of Beer Chand sanctioned in his favour based on some Will dated 5.12.1994. This Will was fictitiously set up by the rt defendant in connivance with the scribe and the marginal witnesses. The Will is not binding upon the rights of the plaintiff. The Will and Mutation attested on the same are not binding on the rights of the plaintiff; hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by filing a written statement, taking preliminary objections regarding the plaintiff having not come to the Court with clean hands, the suit not being properly valued for the purpose of Court fees and jurisdiction, the plaintiff being out of possession and lack of jurisdiction. The contents of the plaint were denied on merits. However, the relationship between the plaintiff and Beer Chand was not disputed. It was asserted that the plaintiff never performed her ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 4 matrimonial obligations towards Beer Chand. The defendant took care of Beer Chand and performed his last rites. Beer Chand .
executed a Will dated 5.12.1994 in favour of the defendant.
Plaintiff and Beer Chand were issueless and they treated the defendant as his son. The defendant served the plaintiff and Beer Chand. He (Beer Chand) earlier executed a Will in favour of of the defendant on 16.9.1991. The plaintiff objected to the Will and Beer Chand executed another Will dated 5.12.1994 which was rt registered on 6.12.1994. Beer Chand bequeathed a house bearing No. DHL 58 in Ward No. 12, Nagarpalika Kullu to the plaintiff.
Beer Chand disposed of the house at the instance of the plaintiff and paid sale proceeds to the plaintiff. The Will and Mutation are valid. Therefore, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. The learned Trial Court framed the following issues on 23.11.2016 or and 1.3.2021: -
1. Whether after the death of Beer Chand, the plaintiff has inherited the suit land being her wife and is absolute owner in possession of the suit land? OPP.
2. Whether the plaintiff has not come to the Court with clean hands? OPD.::: Downloaded on - 01/12/2023 20:36:19 :::CIS 5
3. Whether deceased Beer Chand had executed valid Will dated 05.12.1994 in favour of defendant? OPD 3(a). Whether the suit has not been properly valued for the .
purpose of court fee and jurisdiction, as alleged? OPD.
3(b). Whether the suit is not maintainable? OPD.
4. Relief.
6. The parties were called upon to produce the evidence of and the plaintiff examined herself (PW-1) and Anshul Parashar (PW-2). Defendant examined himself (DW-1), Niranjan Dass rt Mahant (DW-2), Mahal Chand (DW-3) and Bhawani Chand (DW-4).
7. The learned Trial Court held that a Will is required to be attested by two witnesses as per Section 63 of the Indian Succession Act. The Will propounded by the defendant contained the signature of only one witness. The plaintiff had sought the relief of declaration but no consequential relief. The value of the suit property is more than ₹1.00 crore which was beyond the pecuniary jurisdiction of learned Trial Court. Hence, the learned Trial Court answered issues No. 1 and 4 in the affirmative, the rest of the issues in negative and dismissed the suit.
8. Being aggrieved from the judgment and decree passed by the learned Trial Court, the plaintiff filed an appeal ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 6 and the defendant filed cross-objections. These were decided together by learned Additional District Judge, Kullu. Learned .
First Appellate Court held that the relationship between the plaintiff and Beer Chand was cordial and there was no reason to exclude her from inheritance. Learned First Appellate Court concurred with the findings of the learned Trial Court that the of Will was signed by one witness and there was no due attestation of the Will. Learned Trial Court had erred in holding that the suit rt was beyond the pecuniary jurisdiction of the learned Civil Judge.
Hence, learned First Appellate Court accepted the appeal filed by the plaintiff and dismissed the cross objections filed by the defendant.
9. Being aggrieved from the judgment and decree passed by the learned First Appellate Court, the defendant has filed the present appeals asserting that the learned First Appellate Court did not properly appreciate the material placed before it. It was not appreciated that the suit for declaration without seeking consequential relief is not maintainable. The value of the suit property is more than ₹1.00 crore and the learned Trial Court had rightly concluded the suit to be beyond the pecuniary jurisdiction of the Court. It was wrongly held by ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 7 the learned Courts below that execution and attestation of the Will was not proved as per law. Therefore, it was prayed that the .
present appeals be allowed and judgment and decree passed by the learned First Appellate Court be set-aside.
10. The following substantial questions of law are proposed in the memorandum of appeal in both the appeals:-
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1. Whether the learned Courts below have committed an illegality by not appreciating that the Will, Ex.DW-2/A, is rt a legal and valid document as the same has been executed and got registered by complying with the provisions of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act?
2. Whether the cross objections filed by the appellant/defendant in civil appeal No. 1 of 2021 were required to be registered separately in accordance with law and the learned First Appellate Court has committed an error of law in as much as the cross objections have not been registered separately though decided alongwith appeal vide impugned judgment?
3. Whether the learned First Appellate Court below has not appreciated the provisions of Section 7, second proviso to sub-section (iv) read with clause (c) and (e) of Sub-
Section (v) of the Himachal Pradesh Court Fee Act, 1968 and has erred in holding that the respondent/plaintiff is not required to value the suit property for the purpose of Court fee and jurisdiction at the make value of the property?
4. Whether in view of admission of the respondent/plaintiff in her statement as PW-1 to the effect that she was married to one Shri Ved Raj prior to her alleged marriage with late Shri Beer Chand and the said marriage has not ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 8 been dissolved in accordance with law, the respondent/plaintiff is not legally wedded wife of late Shri Beer Chand and is not entitled to inherit the suit .
land/property?
5. Whether the learned Courts below have erred in law by not appreciating that the suit for declaration simplicitor without consequential relief is not maintainable?
6. Whether the learned Courts below have misread and misconstrued the pleadings of the parties and evidence on of record of the case which has caused grave prejudice to the appellant/defendant?
11. I have heard Mr. R.K. Bawa, learned Senior Counsel, rt assisted by Mr. Ajay Kumar, Advocate for the appellant/defendant and Mr. Parveen Chandel and Sanjay Singh, learned Counsel for respondent/plaintiff.
12. Mr. R.K. Bawa, learned Senior Counsel for the appellant/defendant submitted that the learned Trial Court had rightly held that the valuation of the suit property was more than ₹1.00 crore which was beyond the pecuniary jurisdiction of the Civil Judge. The plaintiff had filed a suit for declaration but failed to claim consequential relief of possession and a permanent prohibitory injunction. Such a suit is hit by the proviso to Section 34 of the Specific Relief Act. Learned Courts below had wrongly held that the Will was not duly attested as per law. There is no prohibition in an identifier being an ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 9 attesting witness. Therefore, he prayed that the present appeals be allowed.
.
13. Mr. Parveen Kumar Chandel and Sanjay Singh, learned Counsel for respondents/plaintiffs supported the judgment and decree passed by the learned First Appellate Court and submitted that no interference is required with the same.
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14. I have given considerable thought to the rival rt submissions at the bar and have gone through the records carefully.
15. It was submitted that the learned First Appellate Court erred in not passing two decrees in an appeal and cross objections. Only one decree was passed which is impermissible.
This submission is not acceptable. It was laid down by Delhi High Court in Krishan Gopal v. Haji Mohammad, 1968 SCC OnLine Del 13 : (1968) 4 DLT 371: AIR 1969 Del 126 that the appeal and the cross objections are to be decided together and one decree is to be passed. It was observed:
7. Where a decree is partly against one suitor and partly against another, one of such parties being satisfied with his partial success, may not prefer an appeal within limitation, but, on the other party appealing may like to reopen the adverse part of the decree. In the larger interest of the cause of justice, it is in such circumstances ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 10 that the party satisfied with partial success is granted another opportunity of challenging the part of the decree against him upon his opponent preferring an appeal, of .
which notice is served or him. In order to avail of this right he has to take cross-objections within one month from the date of service on him of notice of the hearing of his opponent's appeal. In this background, the question arises as to what is the effect of the present Appellant's appeal in the lower Appellate Court having been dismissed as barred by limitation. From one point of of view, he may be held not to have preferred any appeal, but from another point of view, it may be held that having himself chosen to prefer an appeal and having failed in his endeavour to successfully assail the impugned decree, rt even though on account of the bar of limitation, in fairness, he should not be allowed to have a second chance of re-opening the controversy in the garb of cross-objections. This aspect has not been fully developed at the bar and I would, therefore, be disinclined to express any considered opinion on the point. I should, however, like to point out that it would have been more in consonance with the practice if the learned Additional District Judge had not disposed of the cross-objections before disposing of H. Mohd. Muslim's appeal. The cross- objections are to be heard when the appeal is heard when the appeal is heard and, as a general rule, the Court is expected to dispose of both the appeal and the cross- objections together by one judgment and the decision should be incorporated in one decree. The appellant's learned counsel has, however, not made any grievance of this procedure and I need to say nothing more on it."
16. No judgment to the contrary was brought to this Court. Thus, the cross objections and appeal are to be heard together and one decree has to be passed. In the present case, the learned First Appellate Court had referred to the cross ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 11 objections in para-9 of the judgment as well as in para 25.
Learned Trial Court decided the appeal and the cross-objections .
together and passed a single decree as per the judgment of the Delhi High Court. Therefore, the submission that the cross objections and the appeal were required to be separately disposed of and separate decrees had to be passed cannot be of accepted.
17. rt It is true that the learned First Appellate Court has not registered the cross objections separately, however, it is a ministerial act and does not affect the judgment and decree passed by the learned First Appellate Court, especially when the learned First Appellate Court had taken note of the appeal as well as the cross-objections.
18. Learned First Appellate Court held that the Will was not attested as per the law. The Will was required to be signed by two attesting witnesses, whereas it was signed by one attesting witness Mahal Chand and one identifier Ashok Kumar. It was submitted that an identifier can be an attesting witness and the learned First Appellate Court erred in holding that the identifier cannot be an attesting witness. There is no dispute with this ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 12 proposition of law. It was laid down by the Hon'ble Supreme Court in Bhaiya Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 .
SC 346 that an attesting witness to the Will is one, who puts his signatures with an animus to attest the signatures of the testator. It was observed:-
"18. When this position was realised the learned counsel of for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of the will Ex. A-36 and acknowledged his signature rt thereto before the Sub-Registrar at Tarabganj and this acknowledgement of his signature was in the presence of the two persons who identified him before the Sub- Registrar viz. Mahadeo Pershad and Nageshur who had in their turn appended their signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A-36. This argument would have availed Gangotri if Mahadeo Pershad and Nageshur had appended their signatures at the foot of the endorsement of registration animoattestandi. But even apart from this circumstance, it is significant that neither Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of such attestation if any. One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68 of the Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."::: Downloaded on - 01/12/2023 20:36:19 :::CIS 13
19. In Punni Vs. Sumer Chand A.I.R. 1995 H.P. 74, it was held that an attesting witness should have put his signatures .
with an intention to attest the fact that he had seen the executant signing the document or had received a personal acknowledgement. It was observed:-
"15. In light of the aforementioned submissions, another of question, which has been raked up is whether a scribe can or cannot be considered to be an attesting witness. The question posed does not require any elaborate discussion rt or reference to a host of decisions of various High Courts, which were cited at the bar, except by making reference to the decision of the Supreme Court in M. L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons (AIR 1969 SC 1147), where the question was dealt with as to whether a scribe or the Sub Registrar registering a document can or cannot be considered to be an attesting witness. Reference was made to the definition of the word 'attested' appearing in Section 3 of the Transfer of Property Act and it was held that it was essential that the attesting witness should have put his signature with the intention that the same is for the purpose of attesting a fact that he has seen the executant sign or has received from him a personal acknowledgement of his signature. It was also held that if a person puts his signature on a document with some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he cannot be considered to be an attesting witness. The question, which had arisen in Abdul Jabbar Sahib's case (supra) was whether the security bond had been attested by the two witnesses or not. The argument was that the Sub Registrar having registered the security bond, under the provisions of the Indian Registration Act, 1908, can be regarded as an attesting witness since the endorsement on the document suggested that the same was read over and explained to ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 14 the executant, who after admitting the contents thereof had also appended his signature thereupon. Such a contention was negatived by holding that prima facie the .
registering officer puts his signature on the document in the discharge of his statutory duty under Section 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature. Emphasis was laid on the intention of the person signing the document that whether the signatures were put and of meant for the purpose of attesting it or certifying that the signatory had received from the executant a personal acknowledgement of his signatures. In para 8 of the report, it was held that :
rt "Attested', in relation to an instrument, means and shall be deemed to have meant attested by two or more, witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary, that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary. It is to be noticed that the word 'attested', the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact.
Briefly, put the essential conditions of a valid attestation under Section 3 are (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signatures ; (2) with a view to attest or to bear witness to his fact each of them has signed the instrument in the presence of the ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 15 executant. It is essential that the witness should have put his signature animoattestandi, that is, for the purpose of attesting that he has seen the .
executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose e. g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."
16. Unless sufficient and cogent evidence is led showing of that the person putting his signature on a document signed it for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature, he cannot be regarded rt as an attesting witness. In the absence of any evidence in the case, signatures are appearing on the document only for the purpose of certifying that he is a scribe or an identifier or a registering officer, he is to be considered as such and not an attesting witness. To be regarded as an attesting witness, it must be shown that he had put his signature with the intention and for the purpose of attesting it or certifying of having received from the executant a personal acknowledgement of his signature."
20. Similarly, it was held in N. Kamalanvs. Ayyaswamy 2001(7) SCC 503 that the Court has to ascertain the intention of a person putting his signatures and if the signatures were put in token of the fact that the person had seen the executant putting his signatures, he would be called an attesting witness. It was observed:-
"27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance with the requirement of law. While the ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 16 introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it is relevant in the matter of proof of a document requiring .
attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term 'attest' viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies of consciousness and intention to attest."
21. This question was also considered in Narotam Vs. Laxmi Devi AIR 2016 HP 160 and it was held that unless sufficient rt evidence is led to show that the person putting his signatures on the document signed it/to attest it, the person cannot be called to be an attesting witness. It was observed:-
"17. In my considered view had it been clarified in the Will itself that M.P. Kaushal had appended his signatures as an attesting witness as well as identifier then it would have been a different matter. However, in the absence of the same, it cannot be inferred that M.P. Kaushal was also an identifier as well as an attesting witness. Accordingly, in the facts of the present case, it cannot be held that the identifier was also the attesting witness. This Court has held in Smt. Punni v. Sumer Chand and others, 1994 (2) C.L.J. (H.P.) 290, which judgment has also been relied upon by the learned Appellate Court that unless sufficient and cogent evidence is led to show that the person putting his signature on a document signed it for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgement of his signature, he cannot be regarded as an attesting witness."::: Downloaded on - 01/12/2023 20:36:19 :::CIS 17
22. The Will (Ex.DW-2/A) was written on 5.12.1994. It was registered on 6.12.1994. The testator had put his signatures .
and mentioned the date as 5.12.1994. The identifier Ashok Kumar Marwah put the date 6.12.1994 below his signatures. It is admitted that Ashok Kumar Marwah was an Advocate; therefore, the fact that he had put the date 6.12.1994 below his signatures of clearly shows that he had not put the signatures on 5.12.1994.
23. rt It was submitted that there was some error in the date mentioned by the identifier. He had put his signatures on 5.12.1994 and there was a clerical error in the date. A reference was made to the statement of Niranjan (DW-2), who stated in his proof affidavit that he wrote the Will as per the directions of the testator on 5.12.1994. He read over and explained its contents to the testator in the presence of witnesses and the testator put his signatures in the presence of the witnesses and the witnesses also put their signatures in the presence of the testator. He made the entry on the register in the presence of the testator and both the witnesses. The testator also put his signatures on the register. He admitted in his cross-
examination that he had not brought his register because it was not requisitioned from him. He further stated that he had ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 18 prepared a copy and obtained the signatures of the testator and the witnesses on the original as well as the copy. Ashok Kumar .
had also signed as an identifier on both documents. Ashok Kumar put the date in his hand.
24. Significantly the copy was not produced to explain that there was some error in the date mentioned by Ashok of Kumar Marwah. The fact that the register and copy were rt withheld from the Court would show that the date was mentioned by Ashok Kumar Marwah correctly and there is no error. This fact is further fortified from the date of registration.
Had the document been prepared and attested on 5.12.1994 it would have been registered on the same day. The fact that it was registered on 6.12.1994 suggests that Ashok Kumar had put his signatures on 6.12.1994 and not on 5.12.1994.
25. Mahal Chand (DW-3) stated in his cross-
examination that the Will was completed at 3.30 PM. The Will was to be registered on the same day but the Sub Registrar was not present, therefore, Beer Chand called them on the next day.
This explanation was not given by Niranjan, the document writer and hence the same is not acceptable.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 1926. Mahan Chand (DW-3) stated in his proof affidavit that the testator asked the document writer, Niranjan, to write a .
Will. The document writer wrote the Will as per the directions of the testator. The document writer read over and explained the contents of the Will to the testator in his presence and in the presence of Ashok Kumar Marwah. The testator acknowledged of the correctness of the Will and put his signature. Witnesses also put their signatures in the presence of Beer Chand and the rt document writer. The Will was entered in the register of the document writer. He stated in his cross-examination that Beer Chand met him in the bazaar and told him that he wanted to execute a Will. He expressed his intention to bequeath the property in favour of the plaintiff and defendant equally. He also stated that the plaintiff would remain the owner during her lifetime and after her death, the defendant would become the owner. The identifier Ashok Kumar had mentioned the date himself. Beer Chand put his signatures first, Ashok Kumar put his signatures afterwards and he put his signatures in the last.
He had also signed the entry recorded in the register of the document writer. Ashok Kumar also put his signatures. No other document except the Will (Ex.DW-2/A) was prepared by the ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 20 document writer and he had not put the signatures. He admitted that Ashok Kumar Marwah had put his signatures on the Will on .
6.12.1994.
27. The testimony of this witness makes the execution of the Will highly suspect. He admitted in his cross-examination that Ashok Kumar had put his signatures on 6.12.1994 which of shows that Ashok Kumar had not put his signatures in the rt presence of Beer Singh. Therefore, he cannot be called to be an attesting witness. Hence, in these circumstances, both the learned Courts below had rightly held that it was not proved that Will was duly attested by two witnesses.
28. This witness stated that the testator wanted to bequeath his property to the plaintiff and defendants equally;
however, the Will shows that only a house in Ward No. 12 was bequeathed to the plaintiff and the rest of the property was bequeathed to the defendant. This shows that the Will (Ex.DW-
2/A) does not incorporate the intention of the testator. Further, the Will (Ex.DW-2/A) mentions that the plaintiff and defendant would be the owner after the death of the testator. This is contrary to the statement of Mahal Chand that the testator ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 21 intended that the plaintiff would be the owner during her lifetime and the defendant would inherit the property after her .
death.
29. Mahal Chand stated that his signatures were obtained by the Sub Registrar and he was asked to go away. Sub Registrar told him that the document was registered. He (Mahal of Chand) put the signatures, and no other formalities were rt completed in his presence. This shows that the registration of the Will was not as per law. The recital contained in the back of the Will that contents of the Will were read over and explained to the testator who admitted the same is not corroborated by this witness because he had nowhere stated that the Will was read over and explained in his presence to the testator.
30. Therefore, in these circumstances, learned Courts below had rightly held that the execution of the Will was not properly proved. This is a pure findings of fact. It was laid down by the Hon'ble Supreme Court in RurSingh v. Bachan Kaur, (2009) 11 SCC 1 : (2009) 4 SCC (Civ) 387: 2009 SCC OnLine SC 320 that it is not permissible for the High Court to interfere with the ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 22 concurrent findings of fact regarding the execution of the Will. It was observed:
.
"13. The High Court while exercising its jurisdiction under Section 100 of the Code of Civil Procedure exercises a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial court and/or the first appellate court only in the event, that a substantial question of law arises for its consideration.
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14. The High Court framed only one substantial question of law viz. whether the will had been duly proved and/or was otherwise genuine. It is essentially a question of fact. The learned trial Judge as also the first appellate court in rt opining that the will was genuine and free from suspicious circumstances inter alia took into consideration the existing materials on record viz. the parties ordinarily do not want their agricultural land to go out from the family and in that view of the matter if Kehar Singh had bequeathed his agricultural land only in favour of his sons and excluding the daughters from inheritance, no exception thereto could be taken.
18. The High Court essentially entered into the arena of appreciation of evidence. It interfered with the concurrent findings of fact arrived at by the courts below."
31. It was laid down by the Hon'ble Supreme Court in Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ) 709: 2019 SCC OnLine SC 374, that where the First Appellate Court had appreciated the facts regarding the execution of the Will, it is not permissible for the High Court to interfere with this findings of fact in second appeal under Section 100 of CPC. It was observed:
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 23"15. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has erred in .
reappreciating the evidence on record in the second appeal under Section 100 CPC. The High Court has materially erred in interfering with the findings recorded by the first appellate court, which were on reappreciation of evidence, which was permissible by the first appellate court in the exercise of powers under Section 96 CPC. Cogent reasons, on appreciation of the evidence, were of given by the first appellate court. The first appellate court dealt with, in detail, the so-called suspicious circumstances which weighed with the learned trial court and thereafter it came to the conclusion that the will, rt which as such was a registered will, was genuine and did not suffer from any suspicious circumstances. The findings recorded by the first appellate court are reproduced hereinabove. Therefore, while passing the impugned judgment and order [Lehna Singh v. Gurnam Singh, Civil Regular Second Appeal No. 2191 of 1985, order dated 27-11-2007 (P&H)], the High Court has exceeded its jurisdiction while deciding the second appeal under Section 100 CPC."
32. In Kashibai v. Parwatibai, (1995) 6 SCC 213, the High Court had interfered with the findings of fact recorded by the Courts regarding the validity of the Will. It was held by the Hon'ble Supreme Court that it is not permissible for the High Court to interfere with the findings of fact related to the execution of the Will while hearing the second appeal. It was observed:-
"11...... In the present case, the trial court after a close scrutiny and analysis of the evidence of Defendant 1, Smt ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 24 Parvati Bai, Vir Bhadra, Sheikh Nabi, Shivraj and Gyanoba Patil who are witnesses to the Will recorded the finding that none of them deposed that Lachiram had signed the .
said Will before them and they had attested it. None of them except Sheikh Nabi even deposed as to when the talk about the execution of Will was held. The witness Sheikh Nabi, however, deposed that the talk about the Will also took place at the time of the talk about the adoption. But this witness too did not depose that deceased Lachiram had signed the alleged Will in his presence. In the absence of of such evidence it is difficult to accept that the execution of the alleged Will was proved in accordance with law as required by Section 68 of the Evidence Act read with rt Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act. It may be true as observed by the High Court that the law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof but it is also not permissible to assume something which is required by law to be specifically proved. The High Court simply assumed that Lachiram must have put his signature on the Will Deed in the presence of the attesting witness Sheikh Nabi simply because the Deed of Adoption is admitted by the witness to have been executed on the same day. The High Court committed a serious error in making the observations that broad parameters of Nabi's evidence would show that Lachiram executed the Will in his presence, that he signed the Will being part of the execution of the testament and this evidence in its correct background would go to show that what was required under Section 63 has been carried out in the execution of the Will. With respect to the High Court, we may say that these findings of the High Court are clearly based on assumptions and surmises and, totally against the weight of the evidence on record. The trial court on a close and thorough analysis of the entire evidence came to a proper conclusion that the Will has not been proved in accordance with the law which ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 25 finding has been further affirmed by the lower appellate court after an independent reappraisal of the entire evidence with which we find ourselves in agreement as there was hardly .
any scope or a valid reason for the High Court to interfere with.
12. Further, it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that an appeal shall lie to the High Court from every decree passed in appeal by any of court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of rt law is involved in any case it shall formulate that question. But surprisingly enough the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, based on appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well-reasoned findings of the two courts below.
Consequently, this appeal must succeed." (Emphasis supplied).
33. It was held in Lisamma Antony v. Karthiyayani, (2015) 11 SCC 782, that it is impermissible to interfere with the findings of facts under section 100 of CPC. It was held:
"11. It is a settled principle of law that a second appeal under Section 100 of the Code of Civil Procedure, 1908, cannot be admitted unless there is a substantial question ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 26 of law involved in it. As to what is a substantial question of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar [Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3 .
SCC 722], this Court has explained the position of law as under : (SCC pp. 725-26, para 6) "6. If the question of law termed as a substantial question stands already decided by a larger 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 the facts of the case of 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 rt be allowed to raise that question as a substantial question of law in a 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 first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in the second appeal."
12. In view of the above position of law, the question formulated by the High Court in the present case, as quoted above, cannot be termed to be a question of law, much less a substantial question of law. The above question formulated is nothing but a question of fact. Merely for the reason that on appreciation of evidence another view could have been taken, it cannot be said that the High Court can assume the jurisdiction by terming such a question as a substantial question of law.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 2713. Having gone through the impugned order challenged before us and after considering the submissions of the learned counsel for the parties, we are of the view that the .
High Court has simply re-appreciated the evidence on record and allowed the second appeal and remanded the matter to the trial court."
34. Similar view was taken in Narendra v. Ajabrao, (2018) 11 SCC 564, wherein it was observed:-
of "17. In the first place, we find that the High Court decided the second appeal like a first appeal under Section 96 of the Code inasmuch as the High Court went on appreciating the entire oral evidence and reversed the rt findings of fact of the first appellate court on the question of adverse possession. Such an approach of the High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of adverse possession is essentially a plea based on facts and once the two courts, on appreciating the evidence, recorded that a finding may be of reversal, such finding is binding on the second appellate court. It is more so as it did not involve any question of law much less substantial question of law. This aspect of law was also overlooked by the High Court.
19. Third, the High Court has the jurisdiction, in appropriate cases, to interfere in the finding of fact provided such finding is found to be wholly perverse to the extent that no judicial person could ever record such finding or when it is found to be against any settled principle of law or pleadings or evidence. Such errors constitute a question of law and empower the High Court to interfere. However, we do not find any such error here."
35. It was held in Ramathal v. Maruthathal, (2018) 18 SCC 303 that it is not appropriate for the High Court to disturb the ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 28 concurrent findings of facts by re-appreciating the evidence and its jurisdiction is confined to the substantial question of law. It .
was observed:-
"13. It was not appropriate for the High Court to embark upon the task of reappreciation of evidence in the second appeal and disturb the concurrent findings of fact of the courts below which are the fact-finding courts. At this of juncture, for better appreciation, we deem it appropriate to extract Sections 100 and 103 CPC, which reads as follows:
"100. Second appeal.--(1) Save as otherwise rtexpressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
***
103. Power of High Court to determine issues of fact.-- In any second appeal, the High Court may, if the evidence on the record is sufficient, ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 29 determine any issue necessary for the disposal of the appeal--
(a) which has not been determined by the lower .
appellate court or both by the court of first instance and the lower appellate court, or
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
14. A clear reading of Sections 100 and 103 CPC envisages of that a burden is placed upon the appellant to state in the memorandum of grounds of appeal the substantial question of law that is involved in the appeal, then the High Court being satisfied that such a substantial rt question of law arises for its consideration has to formulate the questions of law and decide the appeal.
Hence a prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by the High Court. It is the intention of the legislature to limit the scope of a second appeal only when a substantial question of law is involved and the amendment made to Section 100 makes the legislative intent more clear that it never wanted the High Court to be a fact-finding court. However, it is not an absolute rule that the High Court cannot interfere in a second appeal on a question of fact. Section 103 CPC enables the High Court to consider the evidence when the same has been wrongly determined by the courts below on which a substantial question of law arises as referred to in Section 100. When appreciation of evidence suffers from material irregularities and when there is perversity in the findings of the court which are not based on any material, the court is empowered to interfere on a question of fact as well. Unless and until there is absolute perversity, it would not be appropriate for the High Courts to interfere in a question of fact just because two views are possible; in such circumstances, the High Courts should restrain itself from exercising the jurisdiction on a question of fact.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 3015. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in .
accordance with the law. In the case on hand, the High Court has exceeded its jurisdiction by reversing the well- considered judgment of the courts below which is based on cogent reasoning. The learned Judge ought not to have entered the arena of reappreciation of the evidence, hence the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC."
of
36. Similarly, it was held in C. Doddanarayana Reddy v. C. Jayarama Reddy, (2020) 4 SCC 659 that the High Court cannot rt interfere with the concurrent findings of fact unless there is perversity or the same is de hors the evidence led before the Courts:
"25. The question as to whether a substantial question of law arises has been a subject matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v.
Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6 SCC 343], it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under : (SCC pp. 347-48, paras 12-15) "12. This Court had repeatedly held that the power of the High Court to interfere in a second appeal under Section 100 CPC is limited solely to deciding a substantial question of law if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.::: Downloaded on - 01/12/2023 20:36:19 :::CIS 31
13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court held : (SCC p. 393) .
'It is now well settled that concurrent findings of fact of the trial court and the first appellate court cannot be interfered with by the High Court in the exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of of the Code in the way he did.'
14.In Navaneethammal v. Arjuna Chetty [Navaneethammal v. Arjuna Chetty, (1996) 6 SCC 166] , this Court held : (SCC rt p. 166) 'Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'
15. And again in Taliparamba Education Society v.
Moothedath MallisseriIllath M.N. [Taliparamba Education Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC 484], this Court held : (SCC p. 486, para 5) '5. ... The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact, which is impermissible."
37. Thus, it is not permissible for this Court to reappreciate the evidence, when no perversity has been shown.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 32Since in the present case, the learned Courts below had recorded their findings on the evidence, therefore, it is not permissible to .
interfere with the same.
38. The Learned Trial Court held that the suit was beyond the pecuniary jurisdiction of the learned Civil Judge as the value of the property was more than ₹1.00 crore. Learned First of Appellate Court reversed this finding and held that the suit was rt filed for declaration and it was properly valued for Court fees and jurisdiction. It was submitted that the learned First Appellate Court erred in reversing the finding recorded by the learned Trial Court. Reliance was placed upon Section 7 (iv) (c) of the H.P. Court Fees Act. This submission is not acceptable. The civil suit was filed simply to seek a declaration that the plaintiff is an owner in possession of the suit land and that the mutation of inheritance attested based on the Will is bad. No consequential relief was sought, therefore, the suit was not covered under Section 7(iv)(c) of the H.P. Court Fees Act but it was covered under entry No. 13 of the Second Schedule which requires the payment of a fixed court fee. Therefore, the learned Trial Court erred in holding that the suit was not properly valued and should have been valued based on the market value.
::: Downloaded on - 01/12/2023 20:36:19 :::CIS 3339. It was laid down in Ram Lal Vs. Director, Town and Country Planning Department AIR 2009 HP 69 that a simplicitor .
suit for injunction is to be valued per entry No. 13 of the second schedule. It was observed:-
13. Article 13, second Schedule, amended w.e.f. 13-1-2005 provider that a Plaint or memorandum of appeal in a suit;
of
(i) to alter or set aside a summary decision or order of any of the Civil Courts not established by Letters Patent or of any Revenue Court; (ii) to alter or cancel any entry in a register of the names of the proprietors of revenue paying rt estates; (iii) to obtain a declaratory decree where no consequential relief is prayed; (iv) to set aside an award;
(v) to set aside an adoption; and (vi) every other suit where it is not possible to estimate at a money value the subject matter in dispute, and which is not otherwise provided for by this Act, the Court fee payable is ninety-
eight rupees which prior to amendment was nineteen rupees and fifty paise.
40. Thus, in view of the judgment of this Court, the plaintiff was required to evaluate the suit as per entry No. 13 and there is no infirmity in the findings recorded by the learned First Appellate Court.
41. It was submitted that the mere suit for declaration that a consequential relief of possession or injunction was not maintainable and the learned First Appellate Court erred in decreeing the suit. This submission is not acceptable. The defendant Surinder Kumar admitted in his cross-examination ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 34 that the plaintiff resided with the deceased during his lifetime.
He specifically admitted in his cross-examination that the .
plaintiff is residing in the disputed house. He volunteered to say that he was also residing in the same house. His witness Bhawani Charan (DW-4) admitted in his cross-examination that the plaintiff is residing in the house. These statements of clearly show that the plaintiff is in possession and therefore, she did not have to seek possession. Hence, no error was committed rt by the learned First Appellate Court in granting the declaration.
42. The plaintiff stated in her cross-examination that she was married earlier to Ved Raj and one son Prem Chand was born to her from the earlier marriage. She married Beer Chand in the year 1963-64. He (Ved Raj) died in 1991. She had not taken any divorce. She volunteered to say that Ved Raj had died before her marriage. It was submitted based on these admissions that her marriage with Beer Chand was not valid as it was solemnized during the subsistence of an existing marriage. This submission cannot be accepted in the facts and circumstances of the present case. The marriage between the plaintiff and the deceased was never disputed by the defendant. The plaintiff specifically asserted in para-2 of the plaint that she is legally wedded wife of ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 35 Beer Chand and their marriage was solemnized as per the custom of the parties 50 years ago. This part was specifically .
admitted in the written statement and it was stated that para 2 of the plaint does not need any reply. Surinder Kumar stated in his cross-examination that plaintiff was married to Beer Chand 40-45 years ago and the plaintiff resided with Beer Chand after of her marriage. Bhawani Chand (PW-4) stated in para-2 of his proof affidavit that the plaintiff was the wife of Beer Chand and rt they resided in his neighbourhood. Thus, the defendant and his witnesses never disputed the marriage between Beer Chand and the plaintiff. The statement of Palmu Devi cannot be read in isolation to hold that she had solemnized marriage with Beer Chand during the subsistence of her existing marriage. Her statement that Ved Raj died in 1991 has to be read together with the statement that he had died before her marriage to Beer Chand. She specifically denied that Ved Raj had abandoned her at Mandi Bus Stand and he was alive. There is no evidence of the exact date of death of Ved Raj. Hence, it is difficult to rely upon the stray sentence that Ved Raj had died in 1991 to hold that the marriage between the plaintiff and Beer Chand was invalid having been solemnized during the subsistence of the existing ::: Downloaded on - 01/12/2023 20:36:19 :::CIS 36 marriage. This fact was never in dispute and cannot be challenged in the second appeal.
.
43. Therefore, the learned Courts below had rightly discarded the Will propounded by the defendant. The non-
registration of the cross objections will be an irregularity which is not fatal. The suit was properly valued. The marriage between of the plaintiff and Beer Chand cannot be said to be invalid and rt there is no mis-appreciation or misconstruction of the evidence.
Hence, the present substantial questions of law do not arise in the present case.
Final order:
44. In view of the above, the present appeal fails and the same is dismissed, so also the pending miscellaneous application(s), if any.
(Rakesh Kainthla) Judge 1st December, 2023 (Chander) ::: Downloaded on - 01/12/2023 20:36:19 :::CIS