Punjab-Haryana High Court
Kaila Devi And Anr. vs Rajbir Singh And Ors. on 20 October, 1995
Equivalent citations: (1996)112PLR790
JUDGMENT N.K. Kapoor, J.
1. This is defendant's regular second appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court.
2. Briefly put, Dr. Tungal Ram was owner of the land subject matter of the suit. On his death, his estate devolved upon his four sons, namely, Kulwant Singh, Balwant Singh, Kuldeep Singh and Dr. Karan Singh, in equal shares. Plaintiff Rajbir and others filed a suit for joint possession of 5/16th share of land on the allegation that Balwant Singh alias Bhagwant Singh who has been ailing on account of tuberculosis, during his life time executed a will in favour of his mother Smt. Nathian Devi and so by virtue of this will she became owner of the share of Balwant Singh, Kulwant Singh, other son of Smt. Nathian Devi, died before coming into force of Hindu Succession Act, 1956 and on his death Smt. Nathian inherited 1/16th share and this way Nathian became owner of 5/16th share in the joint holding. Smt. Nathian executed a will dated 20.7.1968 in favour of the plaintiffs. It so happened that qua the share of Balwant Singh, the revenue authorities sanctioned mutation in favour of Smt. Kaila Devi, his widow, ignoring the will dated 14.1.1945 executed by Balwant Singh in favour of his mother Srot. Nathian Devi. It is with a view to get rid of the mutation that plaintiffs filed the present suit and claimed themselves to have succeeded on the basis of will executed in favour of Smt. Nathiana and Smt. Nathian having bequeathed her property in favour of the plain tiffs.
3. Smt. Kaila Devi contested the suit. She contested the alleged will set up by the plaintiffs dated 14.1.1945. According to the defendant, her husband has been suffering from tuberculosis and so was extremely weak and incapable of under standing anything during his last days and so was not in a sound disposing mind. So the will set up by the plaintiffs was surrounded by suspicious circumstances as the same did not see the light of the day during these 22 years. According to the defendant, she has remained in continuous possession of the land of her husband in both the villages through her relations on the maternal side and Smt. Nathian Devi never took possession of the land in dispute.
4. On the pleadings of the parties, following issues were framed :-
1. Whether Balwant Singh executed a valid will on 14.1.1945 in favour of Nathian Devi? OPP
2. Whether the plaintiffs have become owners of the suit property by adverse possession? OPP
3. Whether Smt. Nathian Devi executed a valid will in favour of the plaintiffs? OPP
4. If issues No.1 and 2 are not proved, whether Smt. Kaila Devi lost her rights in the property in dispute due to abandonment? OPP
5. Whether the will by Balwant Singh was a result of undue influence? OPD
6. Whether the plaintiffs are estopped from setting up the will of Balwant Singh ? OPD
7. Whether the plaintiffs and Smt. Nathian Devi had abandoned their rights under the will of Balwant Singh? OPD
8. Whether the plaintiffs are withholding the will of Balwant Singh, if so, to what effect? OPD
9. Whether defendant No.1 is debarred from taking the pleas as to the withholding of the Will on the principle of res judicata? OPP
10. Relief.
5. The trial Court decided issues No.1, 3 and 9 in favour of the plaintiffs. Is sues No.2 and 4 were decided against the plaintiffs. Issues No. 5,6,7 and 8 were decided against the defendant. As a result thereof, the trial Court decreed the suit of the plaintiffs.
6. Before the lower appellate Court, the appellant assailed the decision of the trial Court on issues No. 1 and 5 only. It was argued that the land in dispute was coparcenary property of Balwant Singh and his brothers as they had inherited it from their father Dr. Tungal Ram and so Balwant Singh could not make will of the property. According to Hindu Law, father of Karta of the family can make gift of only small portion of the Joint Hindu Family property for religious or pious purposes. So Balwant Singh could not Will away nor defendant could be deprived of her right of maintenance. Challenging the Will, it was argued that the same has not been properly proved as none of the witnesses have been examined and otherwise too surrounds in mystery as the same has not seen the light of the day during these twenty two years. Since the appellant is legally wedded wife of Balwant Singh, so she has become owner of the property left by him after the enforcement of Hindu Succession Act. The lower appellant Court examined the matter in all its details but found no reason to differ with the conclusion arrived at by the trial Court. The Court held that the plaintiffs were able to prove the loss of the original Will and so were permitted to lead secondary evidence as per order of the Court dated 3.12.1975. It is thereafter that the plaintiffs led evidence to prove due execution of the Will and so examined such persons who were familiar with the signatures of the attesting witnesses (as none of the attesting witnesses were alive) and after carefully examining the deposition of the witnesses came to the conclusion that the Will set up was free act of Balwant Singh vide which the property had been bequeathed in favour of Smt. Nathian Devi. Dealing with the plea that the same has been set up after a considerable long time after the death of Balwant Singh, the Court found substance in the plea of plaintiffs to the effect that Smt. Nathian Devi had been managing the property as owner as is reflected, notably in Chakotanama dated 4.2.1947 Exhibit PW19/A executed by one Kalla Singh in favour of Dr. Karam Singh, Kuldip Singh, Kulwant Singh and Smt. Nathian Devi. The Court also made mention of another document Exhibit PW24/A, certified copy of the plaint in a suit filed by Badna and others against Smt. Nathian Devi and Ors. Relying upon these and other documents, the Court held that since the time of death of Balwant Singh, Smt. Nathian had been in possession of the property alongwith her three surviving sons and managing and receiving the rent etc as owner. According to the Court, Kaila Devi was never in possession of the property nor had been managing through someone. In fact, Smt. Kaila Devi did not come forward during all these years to claim the property of Balwant Singh as his widow. Dealing with the objection of the appellant that Smt. Kaila Devi had not been given any property being his wife, the Court referred to the Will Exhibit PW8/A which directed Smt. Nathian Devi to maintain Smt. Kaila Devi. Thus, there was a provision in the Will for the maintenance of Smt. Kaila Devi. Such a provision obviously was in tended to be operative during her life time. No charge etc was created upon the property nor she came forward to lay any such claim. Accordingly, the lower appellate Court found no ground to differ with the conclusion of the trial Court and so dismissed the appeal.
7. Challenging the conclusion of the Courts below the learned counsel fox the appellants once again briefly referred to the pleadings of the parties as well as the evidence led in support of their respective contentions. According to the counsel, the Courts below erred in law in holding that the will dated 14.1.45 is a genuine document. According to the counsel, since the original Will has not seen the light of the day and the very fact that it has come to light after almost a gap of about 22 years by itself a sufficient ground to discard such a document. Not only this, none of the witnesses to the will have been examined. Otherwise too, no provision has been made for the maintenance of Smt. Kaila Devi and lastly it being a coparcenary property, having come from Dr. Tungal Ram, the same could not be willed away as per Hindu Law. The counsel further argued that since the widow had a right of maintenance, the same has ripened into ownership and the revenue authorities rightly entered the mutation in respect of the property of Balwant Singh in favour of the defendant. To support his contention, reliance was placed upon the decision in case reported as Smt. Jaswant Kaur v. Smt. Amrit Kaur etc., Wl Current Law Journal, 237 and Shashi Kumar Banarjee and Ors. v. Subodh Kumar Banerjee since deceased and after him his legal representatives and Ors., A.I.R. 1964 S.C. 529.
8. Broad facts have been briefly noticed. On the death of Dr. Tungal Ram, his sons, namely, Kulwant Singh, Balwant Singh, Kuldeep Singh and Dr. Karan Singh inherited the property. Balwant Singh died in the year 1945 leaving behind his three brothers, his mother Smt. Nathian and his widow Smt. Kaila Devi. As per Hindu Law, Smt. Kaila Devi then had no right to succeed and so had no pre-existing right in the property left by Balwant Singh. As per Will dated 14.1.1945, he bequeathed his property in favour of his mother Smt. Nathian. As per evidence on record which has been accepted by the Courts below, Smt. Kaila Devi, in fact, left Balwant Singh on account of his persistent illness and was with her parents during his last days. After his death, the property has been managed by Smt. Nathian Devi who as per Will of Balwant Singh claimed herself to be owner of the same. A perusal of the document which is in the nature of Chakotanama; suit filed by one of the other tenant impleading Smt. Nathian Devi, give clear indication that these persons have been treating Smt. Nathian Devi to be one of the owners in, the joint holding. During these years, Smt. Kaila Devi at no time has asserted her right. This fact when examined in the light of the evidence adduced by the plaintiffs give an indication that during all these years, the plaintiffs along with their mother Smt. Nathian Devi have been claiming themselves to be owners to the exclusion of any other. Precisely for this reason, the Court has come to the conclusion that Kaila Devi has no right in the suit property. In addition thereto, the Court examined the Will dated 14.1.1945 alleged to have been executed by Balwant Singh in favour of Smt. Nathian Devi. Since the original Will was lost, permission was sought to lead secondary evidence which was allowed by the Court vide order dated 3.12.1975. It so happened that none of the attesting witnesses were alive and so the plaintiffs examined the persons who were familiar with the signatures/thumb-impressions of the Will. The Court after carefully weighing the evidence led by the parties, held the Will to be a genuine document. As regards the delay in producing the same, the Court found merit in the contention of the plaintiffs that, in fact, Smt. Nathian Devi had been claiming herself as owner in respect of the property left by Balwant Singh as is clear from the various documents executed by her or in her favour by Ors. This being finding of fact is not vitiated in any manner. In fact, no worthwhile evidence has been led by the defendant to dislodge the claim set up by the plaintiffs.
9. It was next contended by the learned counsel for the appellant that it being a coparcenary property could not be willed away. There is no such averment in the written statement to this effect. Sole reliance is being placed on one para graph of the plaint wherein it has been stated that the property has come from their father. As per Article 223 of principles of Hindu Law by Mulla, Fifteenth Edition, the property inherited by a male Hindu from his father father's father or father's father's father, is ancestral property. The essential feature of ancestral property according to the Mitakshara law is that the sons, grandsons and great grandsons of the person who inherits it, acquire an interest in it by birth. In case a person has no son, son's son or son's son's son in existence at the time when he inherits the property, he hold the property as absolute owner thereof, and he can deal with it as he pleases. Admittedly, Balwant Singh did not leave behind any male issue so he is rightly held to be its absolute owner. This being so, there was no impediment in his right to deal with the property in a manner he deems fit. Thus, Balwant Singh could execute a Will in respect of such a property.
10. The will is being challenged on the ground that the same did not see the light of the day as well as the fact that the original has not been adduced in evidence. Both these objections too are devoid of any merit. The Court after care fully considering the reasons assigned for leading secondary evidence granted necessary permission which order was never challenged by the defendant-appellant. No meaningful argument has been advanced to discredit the depositions of the witnesses who have deposed in favour of the plaintiffs. The evidence when examined in the light of provisions of Section 63 of the Succession Act as well as judicial pronouncements of the apex Court, leave no manner of doubt that the same was a free act of the testator. Perhaps, on the basis of this Will, Smt. Nathian deceased deemed herself to be owner of the property of Balwant Singh and so recovered the lease amount from various lessees during all these years. Smt. Kaila Devi left the abode of her husband and chose to spend his days amongst her family members from the maternal side.
11. No doubt, a widow has a right of maintenance out of her husband's separate property as also out of the property in which he was a coparcener at the time of death and she does not lose this right of maintenance out of the estate of her husband even if she is living apart without any justifying cause. All the same, she has to lay claim for maintenance before such charge is created or fixed, the same cannot be construed to be a charge upon the estate of the deceased husband. In the present case, Smt. Kaila Devi had not staked or laid a claim for creation of charge upon the property of her husband. Unfortunately, she has expired during the pendency of the present appeal. Thus, even the right to claim maintenance no more survives.
12. Resultantly, finding no merit in the appeal, the same is dismissed. No costs.