Himachal Pradesh High Court
Smt. Darshan Devi vs Som Dutt & Ors on 2 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 120 of 2017
Decided on: 02.07.2018
Smt. Darshan Devi ...Appellant
.
Versus
Som Dutt & ors. ...Respondents
Coram
The Hon'ble Mr.Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No.
For the Appellant: Mr. Ramakant Sharma, Sr. Advocate,
with Ms. Soma Thakur, Advocate.
For the respondents: Mr. Sanjay Jaswal, Advocate.
Justice Tarlok Singh Chauhan, Judge (Oral)
This regular second appeal is directed against the judgment and decree passed by the learned Additional District Judge-I, Kangra at Dharamshala, whereby he allowed the appeal filed by the plaintiffs/respondents, setting aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Nurpur, District Kangra, whereby the suit of the plaintiff was dismissed.
2. The brief facts of the case are that the respondents/plaintiffs filed a suit for declaration and injunction on the ground that they are co-owners of the suit property. It was averred that the alleged Will dated 10.06.1980 executed by Smt. Leela Devi is a result of fraud etc. and mutation No. 76, dated 26.07.1989 attested on the basis of such Will in favour of the appellant's husband as well as father of Renu Bala, Shri Kishan ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 2 Chand and predecessor-in-interest of the proforma respondents, namely, Vyas Dev, was wrong illegal, null and void.
3. The appellant as well as proforma respondents resisted .
and contested the suit on various grounds inter alia and it was pleaded that late Smt. Leela Devi had executed an unregistered Will in favour of their predecessor-in-interest, namely, Vyas Dev and Kishan Chand on 10.06.1980 and on the basis of unregistered Will, mutation stood attested in their favour on 26.07.1989 and, therefore, now the appellant as well as proforma respondents are owners in possession of the property in dispute. It was further averred that the suit was not maintainable as it was barred by limitation and other preliminary objections regarding estoppel etc. were also taken.
4. The learned trial Court after framing the issues, put the parties to trial and vide judgment dated 31.08.2010 dismissed the suit filed by the plaintiffs/respondents.
5. The plaintiffs/respondents preferred an appeal against the aforesaid judgment dated 31.08.2010, which was allowed by the learned first Appellate Court on 06.12.2016 and the judgment and decree passed by the learned trial Court were set aside and consequently the suit filed by the plaintiffs/respondents was ordered to be decreed. Hence, the present appeal.
6. It is vehemently urged by Mr. Ramakant Sharma, learned Senior Counsel duly assisted by Ms. Soma Thakur, learned Advocate, ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 3 that the impugned judgment and decree are perverse inasmuch as the learned first appellate Court has misread, misinterpreted and mis-appreciated the statements of the witnesses as also the .
documentary evidence on record.
7. Whereas Mr. Sanjay Jaswal, learned Advocate for the respondents, would argue that the judgment passed by the learned first appellate Court being in conformity with law warrants no interference.
I have heard learned counsel for the parties and have gone through the records of the case.
8. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar.
58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v.
Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 4 PERVERSE:- Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English -
.
International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
r to
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 5 recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and .
226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person r would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 6 or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
.
9. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
10. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 7"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93)
"11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that r effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 8 stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 9 if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the .
judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'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, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance r 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."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v.
Delhi Administration, (1984) 4 SCC 635, it was held at para 30:
(S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 10 reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC .
10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
11. Thus, it can be taken to be settled that a judgment can be said to be perverse if the conclusions arrived at by the learned Courts below are contrary in evidence on record, or if the Court's entire approach with respect to dealing with the evidence or the pleadings is found to be patently illegal, leading to the miscarriage of justice, or if its judgment is unreasonable and is based on erroneous understanding of law and of the facts of the case. A perverse finding is one which is based on no evidence or one that no reasonable person would have arrived at. Therefore, unless it is found that some relevant evidence has not been considered or that ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 11 certain inadmissible material has been taken into consideration, the findings cannot be said to be perverse.
12. Judged in light of the aforesaid exposition of law, it would .
be noticed that the plaintiffs/respondents are the son and daughters of Smt. Leel Devi and, thus, there have to be very strong reasons for dis-inheriting them and preferring the defendants who are related to Smt. Leela Devi from the maternal side.
13. Evidently the so called unregistered Will has not seen the light of the day and, therefore, as per normal rule of succession, it would be the plaintiffs/respondents, who would otherwise succeed to the property.
14. Now adverting to the so called unregistered Will, the same is alleged to have been scribed by Faquir Chand. Balku, the husband of the testator and Sain Dass are the attesting witnesses.
The reason for bequeathing the suit land in favour of Vyas Dev and Kishan Chand, who are the brothers of the testator is that the testator had, in fact, inherited the suit land from her father, but, then this does not seems to be any cogent or convincing reason for execution of the Will.
15. Indubitably, the defendants have neither examined Balku nor Sain Dass, the alleged attesting witnesses to prove the execution of the Will as required under Section 68 of the Indian Evidence Act and under Section 63 of the Indian Succession Act. The ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 12 propounder of the Will has to examine one of the attesting witness to prove its execution.
16. Section 68 of the Indian Evidence Act and Section 63 of .
the Indian Succession Act read thus:-
Section 68 of the Indian Evidence Act "68.Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence;
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."
Section 63 of the Indian Succession Act "63. Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules-
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has been some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, ::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 13 or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
.
17. From a conjoint reading of the provisions extracted above, it is evidently clear that a Will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark on the Will or has seen some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the testator. Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution.
18. In Yumnam Ongbi Tampha Ibema Devi vs. Yumnam Joykumar Singh and others, 2009 (4) SCC 780, the three Judges Bench of Hon'ble Supreme Court had the occasion to consider the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act and it was held as under:-
"11.As per provisions of Section 63 of the Succession Act, for the due execution of a will:
(1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 14
(3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
.
12. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator."
19. The proposition as expounded in the aforesaid judgment, makes it abundantly clear that each of the attesting witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in the presence of the testator.
20. The same view has been reiterated in the case of Gopal Swaroop vs. Krishna Murari Mangal and others (2010) 14 SCC 266.
::: Downloaded on - 05/07/2018 22:59:38 :::HCHP 1521. Yet it needs to be observed that even though the defendants have not examined any attesting witnesses of the Will, but have examined DW1 Roshan Lal, Tehsildar (Retd.), Tehsildar, who .
is alleged to have attested the mutation on the basis of the alleged unregistered Will and PW2 Smt. Darshan Devi, the defendant No. 4.
However, both these witnesses are not competent to prove the due execution of the Will as required under the law.
22. Noticeably, even though Sain Dass one of the attesting witness was examined on 03.09.2007 pursuant to the application of the defendants to prove the existence and loss of the unregistered will in order to seek permission to prove the said will by leading secondary evidence, however, despite his being alive though ailing no serious endeavour to have examined to prove the due execution of the Will.
23. In absence of there being any proof regarding the execution of a valid will in favour of the defendants/appellant, obviously, no fault can be found with the judgment and decree passed by the learned first appellate Court. No question of law much less substantial question arises for consideration in this appeal.
Accordingly, the same is dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
(Tarlok Singh Chauhan), Judge.
July 2, 2018 (sanjeev)
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