Himachal Pradesh High Court
Ram Singh vs Charan Singh on 23 August, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 689 of 2008 .
Reserved on: 20.8.2019
Date of decision: 23.08.2019
Ram Singh ....Appellant/Plaintif
Versus
Charan Singh
...Respondent/Defendant
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Appellant : Mr. Surender Verma, Advocate.
For the Respondent : Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate.
Tarlok Singh Chauhan, Judge The plaintiff is the appellant, who after having lost before both the learned Courts below, has filed the instant appeal.
The parties shall be referred to as the 'plaintiff' and the 'defendant'.
2. Brief facts of the case are that the plaintiff filed a suit for declaration to the effect that the parties are joint owners in possession of land measuring 1-55-55 hectares, bearing Khewat No. 28, Khatauni No. 53, Khasra Nos. 183, 208, 212, 213, 261, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 2 278, 279, 315, 316, 394, 401, 406, 406/1, 418, 420, 422, 429, 450, 467, 468, 469, 470 and 484, Kitas 23, as per Nakal .
Khatauni Bandobast for the year 1990-91, situated in village Dain, Tehsil Bangana, District Una, H.P. in equal shares and mutation No.4, dated 30th August, 1991 sanctioned on the basis of alleged Will of Churu to the extent of 2/3rd share in favour of the defendant is not binding on the plaintiff as Churu alias Chur Singh never made a Will nor he could make a Will with respect to the suit land which was an ancestral coparcenary property in his hand. It was further averred that the Will dated 7.12.1989 is not a legal and valid Will. Consequential relief of permanent injunction restraining the defendant from dispossessing the plaintiff from his half share in the suit property and from raising any sort of construction or change its nature in any manner was also sought.
3. The defendant contested the suit by filing written statement wherein he denied that the suit property was ancestral or coparcenary joint Hindu property. The property was stated to be the self-acquired property in the hands of Churu alias Chur Singh and the parties were stated to have succeeded the same on the basis of the Will. It was further claimed that Churu alias Chur Singh during his life time had borrowed money for the marriage of the plaintiff from one Lachhman and the ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 3 plaintiff had not paid any amount towards the debt so incurred or he agreed to pay the half of the amount. The said amount .
was paid by the defendant. Moreover, the plaintiff was stated to be living separately from his father after his marriage, whereas the defendant had helped the deceased Churu alias Chur Singh in the cultivation of the land and had further rendered services to the deceased whole heartedly while the plaintiff had never cared for his father. It was also averred that the parties were 'Jat' by Caste and governed by the agricultural custom and rules of succession. It was further averred that even if the property is not proved to be self-acquired even then the rule of survivorship does not apply.
4. From the pleadings of the parties, the learned trial Court framed issues No.1 to 4 on 14.5.1992 and thereafter additional issues were framed by the learned first Appellate Court on 31.12.2003 and the issues framed on both these dates are as under:
1. Whether the suit land is ancestral coparcenary joint Hindu family property, if so, to what effect? OPP
2. Whether Sh. Chuhru @ Chuhar Singh executed a valid Will dated 7.12.89 as alleged, if so, to what effect? OPD
3. Whether the plaintiff has no cause of action to file suit? OPD ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 4
4. Whether the suit is not maintainable in the present form? OPD 4A. Whether the suit property was self acquired property .
by the father of the parties to the lis name Sh.
Chuhru @ Chuhar Singh as alleged? OPD 4B. Whether the parties to the lis being Jat by caste and governed by agriculture custom and rule of succession, if so, its effect? OPD 4C. Whether the pedigree table as set up by the plaintiff showing the relationship of the parties to the lis with their ancestors is not correct as alleged? OPD 4D. Whether the suit is not correctly valued for the purposes of Court fee and jurisdiction? OPD
5. Relief.
5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiff, constraining him to file an appeal before the learned first Appellate Court, which too, came to be dismissed vide judgment and decree dated 30.9.2008.
6. It is against the judgments and decrees passed by both the learned Courts below that the appellant/plaintiff has filed the instant appeal, which on 24.12.2008 came to be admitted on the following substantial questions of law:
::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 51. Whether the impugned judgment and decree is the result of misreading as well as mis-interpretation of provisions of Section 8 of Hindu Succession Act?
.
2. Whether impugned judgment and decree is the result of complete misreading, misinterpreting or mis-appreciation of provisions of law as laid down by the Apex Court in AIR 1986 SC 752 and AIR 1987 SC 558?
3. Whether the learned lower Appellate Court being last court of fact is right in not discussing the entire oral as well as documentary evidence adduced by the parties as required of it in view of law laid down by the Hon'ble Apex Court reported in (2000) 5 SCC 652?
4. Whether the learned lower Appellate Court is right in not considering the provisions of Order 20 Rule 5 of the Code of Civil Procedure?
5. Whether the learned Courts below are right in dismissing the suit for injunction of the appellant-
plaintiff in toto despite the fact that the appellant- plaintiff has been held to be owner in possession to the extent of 1/3rd share, though he has claimed half share, even if the Will is held to be valid?
6. Whether the impugned judgment and decree is the result of misreading as well as misconstruing the earlier Will Ex. DW-2/A dated 9th February, 1983?
I have heard learned counsel for the parties and have gone through the records of the case carefully.
::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 6Substantial Questions of law Nos. 1, 2 and 3.
7. The sole basis of the claim of the plaintiff is based on .
the plea that the property being ancestral coparcenary property could not have been Willed away by late Sh. Churu alias Chur Singh. However, the moot question is whether such a plea is available to the plaintiff in light of the fact that in the earlier Will Ex.DW-2/A dated 9.2.1983, the plaintiff admittedly had been granted half of the property, but made no grievance. It is only when the subsequent Will is sought to be executed and the share of the plaintiff substantially reduced that he has raised the competence of the executant Churu alias Chur Singh to execute the Will. Obviously, the plaintiff cannot be permitted to blow hot and cold at the same time.
8. That apart, without going into the question as to whether the property was ancestral or not and assuming it to be ancestral, even then there was no law which prevented him from executing the Will of the so called ancestral property.
9. In fact, this question is no longer res integra in view of the judgment rendered by a Co-ordinate Bench of this Court in Kartari Devi and others versus Tota Ram 1992 (1) Sim.
L.C. 402 and thereafter the ratio laid down therein was upheld and approved by a learned Division Bench of this Court in Tek Chand versus Mool Raj (1997) 2 Hindu LR 306 and both ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 7 these judgments, in turn, have been approved by the Hon'ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev .
Kumar and others (2009) 12 SCC 454 wherein it was observed as under:-
"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 from his father. In so far as the question whether under the custom 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 the High Court in Kartari Devi and Ors. v. Tota Ram (1992) 1 Sim. L.C. 402 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 the High Court in Tek Chand v. Mool Raj (1997) 2 Hindu L.R. 306. (Hindu LR p.310, para 14). 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."
The substantial questions of law are answered accordingly.
::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 8Substantial Questions of law No. 4 to 6:
10. On the basis of the pleadings as also oral and .
documentary evidence available on record, the plaintiff has failed to prove that the suit property was ancestral property in the hands of Churu alias Chur Singh and, therefore, no exception can be taken to the findings recorded by the learned Courts below to this effect. Thus, the findings recorded by the learned
11. to Courts below cannot be termed to be perverse.
Order 20 Rule 5 of the Code of Civil Procedure reads thus:-
"5. Court to state its decision on each issue.
In suits in which issues have been framed, the court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
12. As per the aforesaid provisions, the learned trial Court was required to render issue-wise findings, whereas, this is not so insofar as the requirement of learned first appellate Court is concerned, especially, when the judgment and decree are one of affirmance. The judgment of the learned appellate Court must reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth and pressed by the parties for decision of ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 9 the appellate Court. The task of the appellate Court affirming the findings of the trial Court is an easier one. The appellate Court .
agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice. (Refer: Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124).
13. to Reverting back to the case, it would be noticed that the learned first appellate Court in the instant case has itself undertaken to scrutinize the entire pleadings and evidence on record and only thereafter affirmed the findings recorded by the learned trial Court by passing a detailed judgment. Therefore, no exception can be taken to the judgment so passed by the learned first appellate Court, more particularly, when the same are hit by the provisions of Order 20 Rule 5 CPC.
14. There is no evidence available on record to even remotely indicate that the plaintiff was in possession to the extent of 1/3rd share, therefore, there was no question of granting injunction in his favour.
15. Once the deceased Churu alias Chur Singh is held to be competent to execute a Will, then this Court need not to go ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP 10 into the question regarding the interpretation of provisions of Section 8 of the Hindu Succession Act.
.
16. Since the question involved in this appeal is no longer res integra in view of the ratio of the judgment of the Hon'ble Supreme Court in Sham Lal's case (supra), therefore, it cannot be said that the judgment passed by learned first Appellate Court is either based on pleadings, misreading and mis-
appreciation of the facts, evidence or law on the subject.
The substantial questions of law are answered accordingly.
17. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any, leaving the parties to bear their own costs.
(Tarlok Singh Chauhan) 23 rd August, 2019. Judge (GR) ::: Downloaded on - 29/09/2019 02:32:27 :::HCHP