Himachal Pradesh High Court
Sukhversha & Others vs Bawa Jung Bahadur on 25 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No. 606 of 2007 Reserved on: 20.09.2019 Decided on : 25.09.2019 ___________________________________________________ Sukhversha & others .....Appellants Versus Bawa Jung Bahadur ...Respondent ____________________________________________________ Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting? YES
For the Appellants : Mr. Ajay Kumar, Senior Advocate with
r Ms. Rohini Karol, Advocate.
For the Respondent: Mr. Pankaj Chauhan, Advocate.
_________________________ __________________________ Anoop Chitkara, Judge Challenging the judgment passed by the First Appellate Court, which had affirmed the judgment and decree passed by the Court of original jurisdiction, which in turn had declared Will Ext. DW-1/A as fraudulent, illegal, void abinitio and had granted a permanent prohibitory injunction in favor of the plaintiff-respondent, restraining the defendant-appellant from taking any benefit of the Will, the Appellant had come up before this Court by way of this Regular Second Appeal.
2. Smt. Manorma Rattan Singh, stepmother of the plaintiff, while engaging a lawyer for her, must have read Ralph Waldo ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 2 Emerson, who had very rightly said, "The good lawyer is not the .
man who has an eye to every side and angle of contingency, and qualifies all his qualifications, but who throws himself on your part so heartedly, that he can get you out of a scrape." Had she read this famous Spanish proverb, "It is better to be a mouse in a cat's mouth than a man in a lawyer's hand," she would have been cautious and most likely extremely reluctant in putting her signatures on blank papers in her lawyer's chamber.
3. Smt. Manorma Rattan Singh owned a substantial share in a vast prime drive-in property, right on the Mall Road, Shimla, just opposite to the famous Railway Board Building and adjacent to A.G. Post Office and just over the renowned Victory Tunnel, where the distance of Shimla reads proud 'Zero Mile".
4. Smt. Manorma Rattan Singh died on 5th November 1992.
The Plaintiff/Respondent Sh. Bawa Jung Bahadur was her stepson. Original Defendant/Appellant was the Counsel of Smt. Manorma Rattan Singh Bawa in a case titled Bawa Jung Bahadur versus General Public filed before the learned District Judge, Shimla, regarding the probate of Will of late Sh. Bawa Rattan Singh, who happened to be the father of the plaintiff and 2 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 3 husband of Smt. Manorma Rattan Singh Bawa. The plaintiff .
became the owner of the share of his stepmother on account of the execution of her Will dated 27th October 1989.
5. The plaintiff for the first time came to know about another Will, which was allegedly executed by Smt. Manorma Rattan Singh on 30.12.1987, whereby her Counsel (Defendant), was appointed as the sole trustee of her share in the entire estate, to the exclusion of the plaintiff, when he was contesting a Rent Petition in the Court of the learned Rent Controller-1, Shimla.
6. Vide plaint dated 14th November 1994, the plaintiff filed a Suit, registered as Civil Suit No. 355/1 of 1999/94, instituted on 17.11.1994. The suit was filed for a permanent prohibitory injunction restraining the defendant from using or taking any benefit of Will dated 30.12.1987 because it was obtained fraudulently and illegally. The plaintiff specifically alleged that the defendant used to be the Counsel for Smt. Manorma Rattan Singh Bawa and as such, he was close to her. However, Smt. Manorma Rattan Singh Bawa somehow realized that her Advocate might be playing fraud upon her and as such, she filed application dated 18.11.1988 before the learned District Judge, 3 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 4 Shimla, revoking him to be her Advocate. It was further alleged .
that as a routine practice, lawyers do take signatures of their clients on blank papers and it is quite possible that once in the garb of furnishing bail bonds of Sh. Bawa Jung Bahadur, his mother, Smt. Manorma Rattan Singh fell into the trap or was otherwise made to sign on blank papers, one of which was later on used to fabricate this Will. The defendant filed a written statement denying all the allegations. It was contended in the written statement that the deceased had only created a charitable trust and appointed the defendant as its sole executor and trustee. It was also stated in paragraph-1 of the written statement that the plaintiff did not take care of his stepmother, and in fact, she had employed one Shri Harbans Lal Punia as her caretaker. It was further alleged by the defendant that the entire property was evacuee property, and the plaintiff had fraudulently acquired the Sale Certificate in his name under Displaced Persons (Compensation and Rehabilitation) Act, 1954. In the replication, the plaintiff explicitly reiterated his stand that it was he who took care of his mother and treated her like his real mother. He further stated that there was no reason for her 4 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 5 mother to create this trust which practically is a grant in favor of .
the lawyer, giving him a free handle.
7. Learned Sub Judge 1st Class (IV), Shimla, vide judgment dated 24th April, 2000, passed in Civil Suit No. 355/1 of 1999/94, decreed the suit in its entirety and declared the Will dated 30.12.1987, whereby defendant-Advocate was appointed as the sole trustee, to be void, fraudulent, illegal and permanent prohibitory injunction was granted in favor of the plaintiff restraining the defendant from taking any benefit of the Will.
8. The defendant challenged the said judgment before the First Appellate Court, and vide judgment dated 27th August 2007, passed in RBT No. 103-S/13 of 2004/2000, dismissed the appeal with costs.
9. The defendant has now come up before this Court by filing this Regular Second Appeal.
10. During the pendency of the Regular Second Appeal, the appellant-defendant expired and vide order dated 06.11.2011, passed by the concerned Registrar, LRs of the deceased appellant were brought on record.
5 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 611. I have heard Mr. Ajay Kumar, learned Senior .
Counsel for the appellants and Mr. Pankaj Chauhan, learned Counsel for the respondent and also waded through the entire record.
REASONING:
12. The plaintiff has proved on record one General Power of attorney, which was exhibited as Ext. PW-6/A. Vide this General Power of attorney, Smt. Manorma Rattan Singh Bawa had appointed plaintiff Shri Jung Bahadur Bawa as her attorney to deal with almost everything including selling or disposing of her properties. This General Power of Attorney was duly registered in the office of the Sub Registrar (Urban), Shimla. It establishes that on 10th of November, 1989, i.e., the date of this Power of Attorney, Smt. Manorma Rattan Singh Bawa had reposed complete faith and trust in her stepson Shri Bawa Jung Bahadur. Before this, vide Will dated 27.10.1989, which was proved as Ext. PW-9/A, she had bequeathed her entire property in favor of her stepson Shri Bawa Jung Bahadur. The said Will is not under challenge in any counter to this suit. The execution this Will also establishes the warmth and depth of the relations 6 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 7 between the plaintiff and his stepmother were much more than .
cordial.
13. In the Will dated 27.10.1989, Ext. PW-9/A, Smt. Manorma Rattan Singh Bawa had put her signatures at one place, and under the signatures, she had written her full name. It was also witnessed by two independent solvent persons, namely Dhani Devi and Udhi Ram.
14. Smt. Manorma Rattan Singh Bawa filed application dated 7th June 1988 before learned District Judge, Shimla, which is proved on record as Ext. PW-7/H. In paragraph 2 of this application, she stated that the "Vakalatnama of her Advocate (name mentioned) should be canceled on 7.6.88 and see that he DOES NOT prejudice our rights. She further prayed that the Vakalnama in favor of her counsel (Name of Counsel), should be canceled on 7.6.88 & see that he (Name mentioned) does not encroach on our legal rights."
15. In this application also, Smt. Manorma Rattan Singh Bawa has put her signatures, and below her signatures, she wrote her name, similar to what was done in Will Ext. PW-
9/A. 7 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 8
16. A perusal of the Will under challenge leads to the .
following inferences.
(a) This Will runs into three pages. Upon this deed, the executant did not have to put her signatures at two places, whereas in other documents like Ext.
PW/9/A, i.e., the Will executed in favor of the plaintiff, she had put her signatures just once, and below that, she had written her name with her hand.
Similarly, in the application for revocation of the Vakalatnama of her Advocate, she had put her signatures at one point, and below that, she had written her name with her hand in the same ink. To the contrary, in this Will under challenge, i.e., Ext.
DW-1/A, she has signed at two places.
(b) The gap between these two signatures, on Ext.
DW/1/A is almost similar to what is a routine while drafting a short Affidavit, Verification, or Bond.
Therefore, the possibility cannot be ruled out that being the lawyer for Smt. Manorma Rattan Singh Bawa, there was a blank paper with him, containing 8 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 9 her signatures obtained for drafting an application .
or an affidavit or a bond or under some pretext.
(c) The most glaring defect in the WILL under challenge is that although the signatures of the testator are available on the third page twice, whereas, she did not sign the first and the second pages of this Will. It is strange that the testator is putting her signatures twice on the last page and not at all on the first and the second pages. It raises grave doubt about the authenticity of this Will.
(d) Another glaring aspect which raises a big question mark over the genuineness of the Will under Challenge (Ext. DW/1/A) is that although the testator did not sign the first and the second pages, the witnesses have signed both the first page as well as the second page and have also put the date under their signatures. This is simply indigestible.
(e) Out of the two witnesses to the Will, i.e., Shri Hem Raj and Shri Gian Swaroop Kaushal, only one witness i.e., Shri Hem Raj survived, and he appeared 9 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 10 as DW-1. In his testimony recorded in the Civil Suit, .
he admitted his signatures and stated that executant Smt. Manorma Rattan Singh had signed in his presence. In cross-examination, this witness admitted that her Advocate, was employed in the Communist Party, but in his presence, he was never a member of the Communist Party. He further stated that his office, i.e., that of the Advocate was in Bawa estate itself, where the office of Communist Party also situated and because of that reason, he knew him. He admitted that neither the Will was typed in his presence, nor did he know who typed it.
He denied that the first two pages were changed later on. He further denied that he made a statement in favor of the Defendant because both of them belonged to the same Communist Party. The Defendant Advocate appeared as DW-2. In his cross-
examination, he stated that he had disengaged from the case because initially he was engaged only for cross-examination. He further noted that this was 10 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 11 an oral settlement. He also denied that the moment .
his client Smt. Manorma Rattan Singh Bawa came to know that he was playing fraud upon her, at that stage, she canceled the Power of Attorney given by her in his favor. He further denied that both the witnesses to the Will belonged to the Communist party. He denied that he forged this Will. The most glaring defect in the cross-examination is that the Defendant, despite being an Advocate, stated that he did not know who had drafted this Will. It is bizarre that on the one hand, Smt. Manorma Rattan Singh Bawa was allegedly creating trust by making her Advocate as her sole trustee, and on the other hand, the Advocate claimed that he did not know what who had typed this Will. He states that Smt. Manorma Rattan Singh had handed over the Will to him just two-three months before her death.
17. A survey of above mentioned glaring improbabilities points out to the irrefutable conclusion that Smt Manorma Rattan Singh never executed the Will under 11 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 12 challenge and to the contrary all the roads lead to one .
destination, which ends up in a deep trench, emitting a foul smell of cheating and concoctions.
18. Now, the entire evidence needs to pass the Judicial Scrutiny on the questions of law on which a co-ordinate Bench admitted this Regular Second Appeal of this Court on the following substantial questions of law:
"1. Whether the findings of the Ld. First Appellant Court and the learned Trial Court are a result of complete misreading of pleadings, evidence and the law as applicable to the facts of the case and particularly document Ext. DW1/A and document Ext. PW/9/A and as such palpably erroneous and illegal and if so, to what effect?
2. Whether the First Appellate Court failed to formulate proper points for determination which has affected its judgment and resulted into miscarriage of justice to the appellant?
3. Whether both the Courts below have grossly misinterpreted and mis- appreciated the evidence and the law as 12 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 13 applicable to the facts of the case and .
what is the effect of ignoring the evidence Exts. DW-2/B, DW/2/C and DW-4/A and if so, to what effect?"
19. As far as the first substantial question of law is concerned, this cannot be said to be a question of law at all. It is more a question of fact than that of a law.
20. Regarding the second question about the miscarriage of justice to the appellant, a bare reading of the evidence reveals that it was the grave attempt to cause injustice to the plaintiff which has been rectified by both the Courts below, safeguarding a rightful legal heir to use his extremely prime property in the heart of Shimla city. The seeds of the question of law could not germinate, and as such, this question need not be answered.
21. The third substantial question of law is based on the revenue document, whereby the defendant challenged the ownership of the plaintiff. But he had no locus to challenge the ownership of the plaintiff because he had no locus to do so nor the same was his concern. The defendant intended that if he 13 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 14 failed to get it then even the plaintiff should also not get it. If .
the sale Certificate vide which the plaintiff had acquired the property under Displaced Persons (Compensation and Rehabilitation) Act, 1954, goes, then even the title of Smt. Manorma Rattan Singh would also become defective. However, this was not a matter under adjudication. However, it reminds one of the famous poet Kali Dass. As such no green shoots emerged from this question of law.
22. A survey of the following judicial precedents is required to ascertain the scope of substantial questions of law.
a) In Satya Gupta vs Brijesh Kumar 1998 (6) SCC 423, Supreme Court holds,
16. "...The High Court, it is well settled, while exercising jurisdiction under Section 100 CPC, 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."
Another divisional bench of Hon'ble Supreme court in Gurdev Kaur vs Kaki and others (2007) 1 SCC 546 held as under:
70. Now, after 1976 Amendment, the scope of Sec. 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of 14 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 15 interfering u/s. 100 of the Code of Civil Procedure only .
in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question.15 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 16
[71] The fact that, in a series of cases, this Court was .
compelled to interfere was because the true legislative intendment and scope of Sec. 100 of the Code of Civil Procedure have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly misappreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross misappreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law.
[77] The High Court has clearly deviated from the settled principle of interpretation of the Will. The Court does not sit in appeal over the right or wrong of the testator's decision. The Court's role is limited to examining whether the instrument propounded as the last Will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last Will, that the Court looks into the nature of the bequest.
16 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 17[78] The learned Single Judge of the High Court has .
not even properly appreciated the context of the circumstances. The contents of the Will have to be appreciated in the context of his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the Court examines the nature of bequest. The Court does not substitute its own opinion for what was the testator's Will or intention as manifested from a reading of the written instrument. After all, a Will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property.
b) In Sham Lal vs Sanjeev Kumar and others 2009(12) SCC 454, Supreme Court holds, [26] There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same form his father. In so far as the question whether under the custom 17 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 18 governing the parties, a Will could be executed in .
respect of ancestral property is concerned, the same is no more res integra.
[27] A learned Single Judge of this Court in Kartari Devi and Ors. v. Tota Ram 1992 (1) Sim. L.C. 4021 has held that in view of Section 30 read with Section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of this Court in Tek Chand and Anr. v. Mool Raj and Ors. 1997 (2) H L.R. 306. In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1/A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside.
[29] "...The High Court also observed that the property in the hands of the deceased Balak Ram was ancestral in character. The High Court also observed that a Will could not be executed as far as ancestral property was concerned and in view of the clear legal position this matter was no longer res integra." Limitation (Issue No. 8) [30] Regarding the limitation, the High Court observed as under:
18 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 19"Undisputedly, the period of limitation prescribed .
under the law for such a suit is three years from the date the cause of action accrued to the plaintiff. It has been averred by the plaintiff in para 9 of his plaint, as to cause of action, as under:
that the cause of action has arisen on 31.10.87 from death on 20.2.88 from mutation and on various other dates from the knowledge of the illegalities and wrongful actions of Village Jabal Jamrot Pargana Haripur Teh. and Distt. Solan within the jurisdiction of this Court, hence this matter has jurisdiction in the matter."
The learned Trial Court, while recording the findings under issue No. 8 has held the suit to be not within time. No findings have been recorded by the learned District Judge on the question of limitation.
Considering the pleadings as a whole as set out in the plaint, the suit of the plaintiff as laid, on the face of it, was not within time. There were neither pleadings nor evidence as to the date on which the plaintiff had derived the knowledge about the mutation and/or the Will.
c) In Roop Singh v. Ram Singh, (2000) 3 SCC 708, Supreme Court holds,
7. It is to be reiterated that under Section 100 CPC jurisdiction of the High Court to entertain a second 19 ::: Downloaded on - 27/09/2019 20:25:24 :::HCHP 20 appeal is confined only to such appeals which involve .
a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 CPC.
23. Resultantly, there is no illegality or perversity in the judgments passed by the Court of original jurisdiction or the First Appellate Court. Furthermore, no substantial question of law has arisen in this case. Moreover, I am fully satisfied with the reasoning and discussions in both the judgments, and I subscribe to a similar view.
24. Consequently, there is no merit in this appeal, and the same is dismissed, along with the pending application(s), if any. Registry to return the records to the concerned Court.
September 25, 2019 (Anoop Chitkara)
(hemlata) Judge
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