Rajasthan High Court - Jaipur
Rajni Kant vs Laxmi Nath (2023:Rj-Jp:13689) on 10 July, 2023
Author: Sudesh Bansal
Bench: Sudesh Bansal
[2023:RJ-JP:13689]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 3/1992
1. Rajni Kant (Since deceased) through L.Rs.
1/1. Sharda Devi-Wife
1/2. Shashikant Sharma-Son (died) leaving her wife Sheela Sharma
1/3. Ravikant Sharma-Son
1/4. Indu Prabha-Daughter
1/5. Manju-Daughter
All Resident of 921, Devi Nagar, New Sanganer Road, Sodala,
Jaipur
2. Madan Lal Johari (since dead) leaving behind the following LRs:-
2/1. Smt. Kamla -Wife
2/2. Raj Kumar Johari-Son
2/3. Kishore Kumar alias Boby-Son
2/4. Mohan Lal alias Happy-Son
All Resident of Nadia Mohalla, Dahi Wali Gali, Bharatpur.
----Defendants/Appellants
Versus
Laxmi Nath (Since deceased) through LRs.
1/1. Smt. Indira Devi D/o Sh. Laxmi Nath, wife of Shri Radhe Shyam
Parashar, resident of Mahu Gate, Opp. H/o Shri Mannu Lal Postman,
Gangapur City-322201
1/2. Shri Kamal Kant Sharma C/o Shri Mool Chandra Bhawan, Dahiwali
Gali, Bharatpur
1/2/1. Smt. Vimla Devi-Wife
1/2/2. Shri Sunil Kant Sharma-Son
1/2/3. Shri Anil Kant Sharma-Son
All Resident of Dahi Wali Gali, Bharatpur, Rajasthan
1/2/4. Smt. Sarla Devi-Daughter (W/o Shri Jai Prakash)
1/2/5. Anita Sharma-Daughter
Both resident of Near Bihari Ji Temple, Nehru Park, Bharatpur.
1/3. Smt. Tara Devi Sharma D/o Shri Laxmi Nath, resident of 49,
Sahyog Nagar, Anah Gate, Bharatpur.
1/4. Shri Jay Kant Sharma son of Shri Laxmi nath, resident of 246,
Krishna Nagar, Bharatpur (Since deceased) (Deleted)
1/5. Shri Sudhir Kant Sharma a Pappie, resident of 246, Krishna
Nagar, Bharatpur.
1/6. Shri Sanjay Kant Sharma, Son of Shri Laxmi Nath, resident of
246, Krishna Nagar, Bharatpur
----Plaintiff/Respondents
For Appellant(s) : Ms. Anita Agarwal with
Mr. Anubhav Agarwal
For Respondent(s) : Mr. Anurodh Chaturvedi for
Mr. D.G. Chaturvedi
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[2023:RJ-JP:13689] (2 of 32) [CFA-3/1992]
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Judgment RESERVED ON 02/06/2023
Judgment PRONOUNCED ON July, 10th,2023
BY THE COURT
1. Defendants-appellants have preferred instant civil first appeal u/s 96 of the Code of Civil Procedure, assailing the judgment and decree dated 04.11.1991 passed in Civil Suit No.115/1991 titled Laxmi Nath Vs. Rajni Kant & Anr. by the Court of Additional District Judge No.1, Bharatpur, whereby and whereunder a registered sale deed dated 30.04.1986, executed by defendant No.1 Rajni Kant in favour of defendant No.2 Madan Lal in respect of shop in question, has been declared null & void qua respondent-plaintiff and the civil suit filed by respondent-plaintiff, claiming preferential right to purchase the shop in question has been decreed in aforesaid terms. It is worthy to mention that although plaintiff made a prayer for possession of shop in question, but such prayer was declined by the trial Court and the claim of plaintiff to purchase the shop in question too was rejected, however, the sale deed, through which appellant- defendant No.2 purchased the shop in question, was declared null & void.
2. In order to decide the present first appeal on merits, it is necessary to recapitulate the factual matrix of the present case, as culled out from the record. In nutshell, facts of the present case are that:-
2.1 One Sh. Laxmi Kant purchased an immovable property consisting three storied house and four shops at ground floor situated at Dahi Wali Gali, Bharatpur on 03rd June 1932 in public (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (3 of 32) [CFA-3/1992] auction. Sh. Laxmi Kant had three sons namely (i) Radha Kant, (ii) Laxmi Nath (plaintiff) & (iii) Rajni Kant (defendant No.1). His wife's name was Smt. Buddho Devi, who happens to be mother of plaintiff & defendant No.1. Sh. Laxmi Kant died in the year 1965, thereafter, his son Radha Kant died in the year 1977, who survived by his son namely Sh. Chandra Kant. Wife of Sh. Laxmi Kant i.e Smt. Buddho Devi also passed away in the year 1981. The dispute is in respect of a shop only, between two sons of Sh. Laxmi Kant as his one son Sh. Laxmi Nath filed present suit, against another son Sh. Rajni Kant and the purchaser of suit shop Sh. Madan Lal Johari was also made party as defendant No.2.
2.2 Out of the immovable property, purchased by Sh. Laxmi Kant, one shop was sold by defendant No.1 Rajni Kant to defendant No.2 Madan Lal Johari, by way of registered sale deed dated 30.04.1986 against sale consideration of Rs.30,000/- and possession of the shop was delivered to defendant No.2. This shop in question is only the subject matter of dispute in the present first appeal because respondent-plaintiff filed a civil suit on 28.04.1987, alleging inter alia that he is co-sharer in the shop in question and has a preferential right to purchase the same by virtue of Section 22 of the Hindu Succession Act. In the civil suit, plaintiff claimed his preferential right to purchase the shop in question alleging himself to be co-sharer therein and made a prayer to get the possession of shop in question by paying Rs.30,000/- to defendants.
2.3 It is necessary to take note that plaintiff pleaded in the plaint that the shop in question is a coparcenary property, and (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (4 of 32) [CFA-3/1992] part of property left out by father Sh. Laxmi Kant is undivided and the right of plaintiff in the shop in question has not been extinguished either by way of Will or partition. Plaintiff himself did not choose to file a suit for partition, but stated that a suit for partition has been filed by plaintiff's son namely Sudhir Kant on 30.09.1985 and in that suit, an interim stay for not executing any registered document in respect of parental property was passed, however, defendant No.1 has executed the impugned sale deed dated 30.04.1986 in favour of defendant No.2, just in order to deprive the plaintiff and his son from their property rights in the shop in question. With such pleadings, the plaintiff questioned the sale deed dated 30.04.1986 and claimed a right to purchase the shop in question from defendant No.1 on the same sale price of Rs.30,000/-, against which defendant No.1 sold the shop in question to the defendant No.2.
2.4 It is also worthy to take note that although plaintiff nowhere disclosed about execution of any Will by his father or mother, however, whispered in Para No.7 of the plaint that right of inheritance of plaintiff in the shop in question has not been excluded either by father or mother through Will.
2.5 The suit was repelled by both defendants and they submitted a joint written statement and contended that the shop in question is part of the property purchased by late Sh. Laxmi Kant on 03rd June 1932 and whole property was his self-earned property. It was contended that Sh. Laxmi Kant had executed a Will dated 13th January 1963 in favour of his wife Smt. Buddho Devi, hence after death of Sh. Laxmi Kant, his wife Smt. Buddho (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (5 of 32) [CFA-3/1992] Devi, who happens to be the mother of plaintiff & defendant No.1, became the absolute owner of the entire property purchased by Sh. Laxmi Kant. Thus, it was denied that after the death of father Sh. Laxmi Kant, plaintiff & defendant No.1 became the co-sharer of the shop in question.
2.6 It was further contended that Smt. Buddho Devi executed a Will dated 15.04.1978, through which the entire property left out by her husband late Sh. Laxmi Kant was divided among plaintiff Sh. Laxmi Nath, defendant No.1 Sh. Rajni Kant and Sh. Chandra Kant, who was legal representative and successor of late Sh. Radha Kant. The shop in question was bequeathed by mother Smt. Buddho Devi to defendant No.1 in her Will dated 15.04.1978, hence after death of Smt. Buddho Devi, in the year 1981, defendant No.1 acquired the absolute ownership and possession of the shop in question.
2.7 It was stated in the written statement that plaintiff has no right, title and interest in the shop in question nor plaintiff is co-sharer therein and no preferential right to purchase the same, vest and rest with the plaintiff, as the right of pre-emption does not apply to commercial premises. Accordingly, defendant No.1 alleged that he was wholly authorized to sell the shop in question by executing the sale deed dated 30.04.1986 in favour of defendant No.2 and plaintiff has no right to assail the sale deed and to claim a preferential right to purchase the shop in question.
2.8 On the basis of aforestated rival pleadings of parties, learned trial Court framed five issues, including the issue of relief, which read as under:-(Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (6 of 32) [CFA-3/1992] (I) Whether the plaintiff was a coparcener along with the defendant No.1 in respect of the suit property and therefore, he was a co-sharer?
(II) Whether the law of preemption was applicable to the shop in question, which is not applicable to business premises?
(III) Whether a will was executed by Sh. Laxmi Kant on 13th January, 1963?
(IV) Whether a Will had been executed by Smt. Buddho Devi on 15th April 1978 in favour of plaintiff, defendant No.1 and son of third deceased son late Sh. Radha Kant? (V) Relief?
2.9 In evidence of parties, plaintiff got examined himself as PW-1 and produced certified copy of sale deed in question dated 30.04.1986 as Exhibit-1. In rebuttal evidence of defendants, defendant No.1 himself appeared as DW-1. One Sh. Shankar Lal, who happens to be witness of Will dated 13.01.1963 made by father Sh. Laxmi Kant in favour of mother Smt. Buddho Devi and third witness Sh. Satish Kumar were also produced. The Will dated 13.01.1963 executed by father Sh. Laxmi Kant and the Will dated 15.04.1978 executed by mother Smt. Buddho Devi were placed on record and exhibited as Exhibits A1 & A2.
2.10 Learned trial Court decided Issue No.(I) partially in favour of plaintiff, Issue No.(II) against defendants, Issue No.(III) against defendants and Issue No.(IV) in favour of defendants and observed that it is an admitted fact between parties that the shop in question is part of the property purchased by their father Sh. Laxmi Kant; the Will dated 13.01.1963 alleged to be executed by Sh. Laxmi Kant in favour of wife Smt. Buddho Devi is not proved and since the property left out by Sh. Laxmi Kant is undivided, (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (7 of 32) [CFA-3/1992] therefore, plaintiff and defendant No.1, being two sons of Laxmi Kant are co-sharer in his property, as such under Section 22 of the Hindu Succession Act, plaintiff gets a preferential right to purchase the shop in question, if defendant No.1 sells the same. In view of such findings, learned trial Court observed that other heirs of Sh. Laxmi Kant were alive, apart from plaintiff and defendant No.1 and suit for partition, filed by plaintiff's son namely Sh. Sudhir Kant is pending, wherein an interim injunction was granted, however, the sale deed in question was executed by defendant No.1 in favour of defendant No.2, therefore, the sale deed was declared as null & void, but in view of a pending suit for partition, the prayer of plaintiff to purchase and get possession of the shop in question, in place of defendant No.2, was rejected. 2.11 Defendant No.2 Madan Lal Johari, who is purchaser of the shop in question through sale deed in question and is in actual possession thereof, has preferred this first appeal along with defendant No.1, who has sold the suit shop to him. 2.12 On record, there is no counter appeal or cross objections from the side of plaintiff, against the rejection of his prayer to purchase and get possession of the shop in question in place of defendant No.2.
2.13 On filing of the present first appeal, the operation of impugned judgment and decree dated 04.11.1991 was stayed by this Court vide order dated 29.01.1992 and the interim stay order was confirmed on 13.07.1992 till hearing of the first appeal. (Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (8 of 32) [CFA-3/1992] 2.14 During course of first appeal, original plaintiff Sh. Laxmi
Nath and both original defendants No.1 & 2 namely Sh. Rajni Kant and Sh. Madan Lal Johari, have passed away and have been survived and substituted by their successors/legal representatives. 2.15 From the side of appellants, an application under Order 41 Rule 27 CPC has been filed on 10.02.2021 in the present first appeal, to place on record additional and subsequent documents i.e. (i) A copy of order sheet dated 18.07.2005, dismissing the partition suit filed by Sh. Sudhir Kant, plaintiff's son and; (ii) A copy of registered sale deed dated 15.05.2008, through which legal representatives of appellant-defendant No.1, have sold one shop & house to legal representatives of plaintiff Sh. Laxmi Nath, who have allegedly accepted therein the Will dated 15.04.1978 executed by Smt. Buddho Devi.
2.16 The application under Order 41 Rule 27 CPC came up on board on 16.07.2021 and this Court deferred the application to be considered at the time of final hearing of the appeal, giving liberty to respondents to file documents in rebuttal, if any. It may be noted that from the side of respondents, the application has not been replied nor the additional documents, sought to be placed on record, have been disputed nor any documents in rebuttal have been filed.
3. Heard learned counsels for both parties on first appeal as well as on the application under Order 41 Rule 27 CPC on merits and perused the record.
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[2023:RJ-JP:13689] (9 of 32) [CFA-3/1992]
4. At the outset, it may be observed that the first appeal is always treated as continuation of civil suit and virtually first appeal is a re-hearing of the civil suit and the whole case is open for re- consideration.
In case of Santosh Hazari Vs. Purushotam Tiwari [(2001) 3 SCC 179] in Para 15, Hon'ble the Supreme Court expounded the scope of first appeal and jurisdiction of first appellate court in following words:
"15....The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law. the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, 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 the appellate court.............while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it.
In another case of H.K.N. Swami Vs. Irshad Basith [(2005) 10 SCC 243], Hon'ble the Supreme Court again reiterated principles in respect of jurisdiction of the first appellate court in Para 3 as under:
"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."(Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (10 of 32) [CFA-3/1992] Hon'ble the Supreme Court, in case of B.V. Nagesh Vs. H. V. Sreenivasa Murthy [(2010)13 SCC 530] and further in case of A.M. Sangappa Vs. Sangondeppa [(2013) 14 SCALE 384], has reiterated the aforesaid principles.
5. Coming to the present appeal at hand, it is an admitted fact between parties that the shop in question is part of the immovable property consisting three storied house and four shops situated at Dahi Wali Gali, District Bharatpur, which was purchased by Sh. Laxmi Kant in public auction on 03rd June 1932. Thus, the shop in question was self acquired property of Sh. Laxmi Kant. Plaintiff has claimed a preferential right to purchase the shop in question from defendant No.1 fundamentally on the ground that plaintiff is co-parcener/co-sharer in the shop in question with defendant No.1, being successors of natural sons of Sh. Laxmi Kant. Per contra, defendant No.1 states that Sh. Laxmi Kant had made a Will dated 13.01.1963 in respect of his self earned and other properties in favour of his wife Smt. Buddho Devi, hence after death of Sh. Laxmi Kant in the year 1965, his wife Smt. Buddho Devi became the absolute owner of the shop in question, as such it has been denied that plaintiff and defendant No.1 became co- parcener/co-sharer of the shop in question after death of their father late Sh. Laxmi Kant. In respect of execution of the Will dated 13.01.1963, specific Issue No.(III) was framed, which has required to be proved by defendants. Issue No.(I) is in respect of the claim of plaintiff stating himself as co-parcener/co-sharer in (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (11 of 32) [CFA-3/1992] the shop in question. Therefore, before dealing with Issue No.(I), it would be apposite to deal with the Issue No.(III) first. Issue No.(III):-
"(III) Whether a will was executed by Sh. Laxmi Kant on 13 th January, 1963?"
6. Learned trial Court has decided Issue No.(III) against defendants, but on appreciation of pleadings and evidence of parties as well as other attending circumstances, this Court finds that the execution of the Will dated 13.01.1963 made by Sh. Laxmi Kant in favour of his wife Smt. Buddho Devi stands proved. It is worthy to note here that on the basis of the Will dated 13.01.1963, Smt. Buddho Devi executed another Will dated 15.04.1978, wherein she has bequeathed her properties to her three sons including plaintiff, defendant No.1 and Sh. Chandra Kant, surviving successor of her third son late Sh. Radha Kant and in her Will, she has clearly stated that she obtained the property sought to be bequeathed from her husband through Will dated 13.01.1963. As far as, the Will executed by Smt. Buddho Devi is concerned, Issue No.(IV) was framed in this respect, which has been decided by the trial Court in favour of defendants. Findings of the trial Court in respect of Issue No.(IV) are not in question in the present appeal. Through Will of Smt. Buddho Devi dated 15.04.1978, the shop in question has been bequeathed by her to defendant No.1. Through Will of Smt. Buddho Devi dated 15.04.1978, plaintiff has also been given share in the properties left out by late Sh. Laxmi Kant. Thus, it is apparently clear that (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (12 of 32) [CFA-3/1992] plaintiff, at one hand has knowingly and deliberately accepted findings of the Issue No.(IV) in respect of holding the Will of Smt. Buddho Devi dated 15.04.1978 as valid and proved, and on the other hand, has sought to purchase the shop in question from defendant No.1 to whom the shop in question was bequeathed by Smt. Buddho Devi through Will dated 15.04.1978 claiming the shop in question under co-parcenership of plaintiff and defendant No.1. Perusal of the Will of Smt. Buddho Devi dated 15.04.1978 (Ex.A2) makes it clear that she has bequeathed properties in favour of her three sons including plaintiff, defendant No.1 and one Sh. Chandra Kant, surviving successor of her third son late Sh. Radha Kant. Thus, it is not a case of plaintiff that he has not obtained any property out of properties left out by late Sh. Laxmi Kant through Will of Smt. Buddho Devi at least, and that seems to be the apparent reason that why the plaintiff did not choose to file a suit for partition of the properties left out by late Sh. Laxmi Kant, but has only claimed a preferential right to purchase the shop in question from defendant No.1 in place of defendant No.2 by way of filing present civil suit. Thus, plaintiff has tried to sail on two boats at a time and case set out by the plaintiff, lacks factual support, to establish his right of co-parcenery in the shop in question only and not in whole property.
7. Defendant No.1 has produced the copy of both the Wills, one Will dated 13.01.1963 (Exhibit-A1) executed by his father Sh. Laxmi Kant in favour of his mother Smt. Buddho Devi wherein the shop in question is included in the bequeathed properties, and (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (13 of 32) [CFA-3/1992] another Will dated 15.04.1978 (Exhibit-A2) executed by Smt. Buddho Devi in favour of her sons, including plaintiff, defendant No.1 and surviving son of her third son Sh. Radha Kant, wherein the shop in question was bequeathed to defendant No.1. Both the original Wills were produced by Sh. Satish Kumar Sharma (DW-3). Defendant No.1 has come out with a case that he came to know about both Wills from Sh. Satish Kumar Sharma (DW-3) after death of his mother Smt. Buddho Devi in the year 1984 and then he obtained copy of both Wills from him. Sh. Satish Kumar Sharma is an advocate, who is resident of District Bharatpur and has appeared as DW-3. He states in his evidence that he knows Smt. Buddho Devi and she got written her Will from him. The draft Will was prepared by him according to instructions of Smt. Buddho Devi and was read over before her and then it was got typed, which is the Will dated 15.04.1978 (Ex.A2). He states that Smt. Buddho Devi put her thumb impression on the Will dated 15.04.1978 (Ex.A2) in his presence as well as in presence of one Sh. Harbhan Singh who made signatures on this Will as witnesses. He states that Smt. Buddho Devi came to him along with a Will executed by her husband, through which it was made clear to him that the property which is being bequeathed by Smt. Buddho Devi, came in her hands through the Will dated 13.01.1963 (Ex.A1) made by her husband. He states that Smt. Buddho Devi handed over both the original Wills in his power and custody and instructed that only after her death, Wills be disclosed to her heirs. Sh. Satish Kumar Sharma (DW-3) has studied and remained (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (14 of 32) [CFA-3/1992] classmate of defendant No.1 and states that he used to go at home of defendant No.1. From the statements of DW-3, his acquaintance and closeness with the mother of defendant No.1 Smt. Buddho Devi, stands proved and further this fact has not been disputed from the side of plaintiff. Thus, the factum of handing over the custody of both Wills in possession of Sh. Satish Kumar Sharma (DW-3) may not be disbelieved and cannot be said to be an unusual circumstance on facts of the present case. From the side of plaintiff, no cross-examination in respect of having custody of both the original Wills in power & possession of Sh. Satish Kumar Sharma, Advocate (DW-3), has been done. As has already been observed that the Will dated 15.04.1978 (Ex.A2) executed by Smt Buddho Devi has already been held proved by the trial Court while deciding Issue No.(IV), and the trial Court has rightly done so, as the Will dated 15.04.1978 (Ex.A2) obviously stands proved by statements of DW-3, who is scriber as well as witness of the Will, and the findings of Issue No.(IV) has not been assailed from the side of plaintiff. Through the Will dated 15.04.1978, plaintiff too has got two other shops and some share in residential portion out of properties left by Sh. Laxmi Kant.
8. As far as the Will dated 13.01.1963 (Ex.A1) executed by Sh. Laxmi Kant is concerned, the same has also been proved by defendant No.1. In his statements as DW-1 stated that the Will dated 13.01.1963 (Ex.A1) bears signature of his father at place A to B and he can acknowledge the signature of his father. He stated that this Will was made by his father in favour of Smt. Buddho (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (15 of 32) [CFA-3/1992] Devi, who happens to be his mother and he came to know about this Will after death of his mother Smt. Buddho Devi through Sh. Satish Kumar Sharma (DW-3). He states that original Will was in custody of Sh. Satish Kumar Sharma (DW-3). He stated that on the Will dated 13.01.1963 executed by his father, Pandit Mansukh Ram, Sh. Harinarayan Gupta, Pandit Nathi Lal and Sh. Shankar Lal Sharma made their signatures. One witness out of four witnesses of the Will, Sh. Shankar Lal Sharma has been produced by defendant No.1 in his evidence as DW-2. Defendant No.1 (DW-1) states in his cross-examination that in between 1978 to 1984, he visited Bharatpur several times and had met with advocate Sh. Satish Kumar Sharma (DW-3), but he never mentioned/disclosed to him about Wills dated 13.01.1963 (Ex.A1) and 15.04.1978 (Ex.A2). In the cross examination of defendant No.1, trustworthiness of his evidence has not been demolished.
9. Sh. Shankar Lal Sharma (DW-2), who happens to be one of the witness of the Will dated 13.01.1963 (Ex.A1), has deposed in his evidence that this Will was executed by Sh. Laxmi Kant in favour of his wife Smt. Buddho Devi in the year 1963. At the time of execution of the Will, he was called by Smt. Buddho Devi and he made his signature on the Will dated 13.01.1963 (Ex.A1) at place G to H. He states that on this Will, Sh. Laxmi Kant made his signature and he can recognize his signature which is available at place A to B. He further states signature of Sh. Mansukh Ram is at place C to D, signature of Sh. Harinarayan is at place E to F and signature of Pandit Nathi Lal is at place I to J. The trustworthiness (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (16 of 32) [CFA-3/1992] of statements of DW-2 has not been demolished in cross- examination and his statements are in conformity with evidence of DW-1.
10. As far as case of plaintiff in respect of the Will dated 13.01.1963 (Ex. A1) is concerned, plaintiff (PW-1) states in his cross-examination that as per his knowledge his father executed no Will in favour of his mother. In respect of another Will executed by her mother is concerned, plaintiff also expressed his ignorance. But in cross-examination, plaintiff admits that he can recognize signature of his father. The signature of his father Sh. Laxmi Kant available on the Will, was put in cross-examination, to which he does not deny such signature of his father, but stated that he cannot say whether such signature is of his father's signature or not. Even in cross-examination, he stated that he does not know that his father during his lifetime made the Will dated 13.01.1963 and he expressed ignorance that the properties, which were received by mother from his father through Will dated 13.01.1963 were bequeathed to him and his brothers. Thus, from the plaintiff's evidence, there is no clear denial about execution of the Will dated 13.01.1963 (Ex.A1) by his father nor about the signature of his father available on the Will.
11. Learned trial Court has misread and misinterpreted defendants' evidence and observed that witness Sh. Shankar Lal Sharma (DW-2) has not stated that the Will dated 13.01.1963 was signed by late Sh. Laxmi kant in his presence, whereas from statements of DW-2 Sh. Shankar Lal Sharma, he has clearly (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (17 of 32) [CFA-3/1992] proved signature of Sh. Laxmi Kant on the Will dated 13.01.1963 (Ex. A1) and in cross-examination, his statements have not been demolished. It is not required to speak out evidence by the witness of Will in term of particular legal phraseology, but crux and substance is required to be established.
12. There seem no suspicion or other kind of unnatural circumstance in execution & proof of Will dated 13.01.1963, however, learned trial Court extended weigh to the insignificant events which may or may not take place in the normal course of human dealings. Non-disclosure about having custody of Wills by Sh. Satish Kumar Sharma (DW-3) to defendant No.1 for several years has been taken as doubtful, whereas in the given facts, the same is one of the possible circumstance because under the faith and trust of Smt. Buddho Devi, Sh. Satish Kumar Sharma (DW-3) was bound to maintain silence about both Wills during lifetime of Smt. Buddho Devi and was not supposed to disclose about factum of both Wills to defendant No.1 or any other heirs of Smt. Buddho Devi. Sh. Satish Kumar Sharma (DW-3) had stated that defendant No.1 and he were classmates and such statement be understand in a positive way under which Smt. Buddho Devi made contact to him and trusted upon him to hand over the original Wills, after getting written her own Will dated 15.04.1978. Sh. Satish Kumar Sharma (DW-3) was an advocate as well, so in such circumstances, it is not impractical rather natural that Smt. Buddho Devi met to him because of her old acquaintance & faith in him. In the present case, non disclosure of the Will dated (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (18 of 32) [CFA-3/1992] 13.01.1963 until death of Smt. Buddho Devi in the year 1984 may not be taken as unusual and improbable circumstance. During the lifetime of Smt. Buddho Devi no dispute occurred among heirs of late Sh. Laxmi Kant, hence occasion to disclose his Will never arose.
13. Reasonings assigned by the trial Court to disbelieve the Will dated 13.01.1963 are hypothetical and show a negative approach adopted by the trial Court, which cannot be appreciated in the present case, taking into consideration the conduct of plaintiff. Plaintiff at one hand stated himself to be co-sharer/co-parcener of the shop in question and alleged that other property left out by father Sh. Laxmi Kant is undivided, however, he himself never chose to file suit for partition. Plaintiff in the present suit is only claiming a preferential right to purchase the shop in question from defendant No.1, but has not clarified how defendant No.1 has right to sale the shop in question. Plaintiff has not challenged the Will dated 13.01.1963 even after the same came in light of the day and in his evidence, he could not deny the execution of the Will as well as the signature of his father on the Will. Plaintiff himself has got share in properties of Sh. Laxmi Kant through Will of Smt. Buddho Devi dated 15.04.1978 and findings of the trial Court on the Will of Smt. Buddho Devi have not been disputed. Thus at one hand plaintiff has accepted the Will of Smt. Buddho Devi and on another hand sought to dispute the Will of Sh. Laxmi Kant whereas both Wills are inter-linked and have nexus to each other, hence cannot be read separately.
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[2023:RJ-JP:13689] (19 of 32) [CFA-3/1992]
14. According to the legal proposition, the registration of a will is optional and not essential. It is wrong on the part of the trial Court to disbelieve the execution of the Will dated 13.01.1963 on account of its non-registration. Disclosure of the Will in the year 1985, after death of Smt. Buddho Devi in the year 1984, is a possible circumstance in the present case. That apart, plaintiff has expressed his ignorance about the Will dated 15.04.1978 executed by his mother, whereas in the Will of Smt. Buddho Devi, properties have been bequeathed to plaintiff as well. Similarly plaintiff expressed ignorance for Will of father also. Learned trial Court committed error in disbelieving the Will dated 13.01.1963 assuming that Sh. Laxmi Kant has divested his three sons from his properties without assigning any reasons, whereas in the Will of the father, apart from the immovable properties including the shop in question which were bequeathed to Smt. Buddho Devi, his few other properties have been bequeathed to his three surviving sons. Even other wise, Smt. Buddho Devi through her Will dated 15.04.1978 has bequeathed the properties of late Sh. Laxmi Kant, to her three sons including plaintiff, defendant No.1 and Sh. Chandra Kant, surviving successor of her third son late Sh. Radha Kant. Thus in overall facts, this Court does not find any suspicious circumstances by which the Will dated 13.01.1963 can be assumed to be shrouded under clouds or any suspicion. The execution of the Will dated 13.01.1963 by late Sh. Laxmi Kant in favour of his wife and three sons seems to be natural and stands in similar line, like one do in ordinary course of human nature. (Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (20 of 32) [CFA-3/1992] Plaintiff has not been able to show any specific point to disbelieve the execution of the Will dated 13.01.1963.
15. The Hon'ble Supreme Court in case of Meenakshiammal (died) through LRs. Vs. Chandrasekaran [(2005) 1 SCC 280] has held as under:-
"The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, is sufficient to discharge the onus. Once the propounder proves that the will was (i) signed by the testator, and (ii) that he was at the relevant time in a sound disposing state of mind, and (iii) that he understood the nature and effect of the disposition and put his signature out of his own free will, and
(iv) that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged. In the case of Madhukar D. Shende Vs. Tarabai Aba Shedage [AIR 2002 SC 637], it has been held as follows: "8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the Court either believes that the Will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the Will was duly executed by the testator, then the factum of execution of Will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R v. Hodge, 1838, 2 Lewis CC 227 may be apposite to some extent "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (21 of 32) [CFA-3/1992] them complete." The conscience of the Court has to be satisfied by the propounder of Will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a Will provided that there is something unnatural or suspicious about the Will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict positive or negative. 9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."
The legal proposition expounded by the Apex Court applies and governs facts of the present case and such proposition of law is well settled and has been followed in series of other judgments, the reference of which would only multiply the ratio of law, which is established by this judgment.
16. It is true that burden of prove the execution of the Will dated 13.01.1963 lies upon the propounder who is defendant No.1. As per Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act, it is essential to prove the execution of a Will (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (22 of 32) [CFA-3/1992] by producing at least one witness of Will. In the present case, defendants have produced Sh. Shankar Lal Sharma as DW-2, who is one of the witnesses of the Will dated 13.01.1963 (Ex.A1). For other three witnesses, namely Pandit Mansukh Ram, Sh. Harinarayan Gupta, Pandit Nathi Lal, DW-1 has clearly stated that two witnesses have passed away and witness Sh. Harinarayan is very old and infirm person. The production of Will from the custody of Sh. Satish Kumar Sharma (DW-3) has also been proved. Thus from the cumulative reading of evidence of DW-1, DW-2 & DW-3 and in absence of any rebuttal evidence from the side of plaintiff, it cannot be said that execution of the Will dated 13.01.1963 (Ex.A1) has not been proved by defendants. Even otherwise, the Will dated 13.01.1963 executed by late Sh. Laxmi Kant in favour of his wife Smt. Buddho Devi cannot be assumed to be shrouded by any unnatural circumstances. In the Will, Sh. Laxmi Kant has mentioned about his three sons and has indicated that other properties have been bequeathed in favour of his three sons. From perusal of the Will and in the facts and circumstances of the present case, this Court is of considered opinion that the trial Court has fallen into error of fact and law in deciding the Issue No.(III) against defendants, whereas as per evidence and proposition of law, execution of the Will dated 13.01.1963 stands proved.
17. Thus, findings of Issue No.(III) as recorded by the trial Court, are hereby reversed and the Issue No.(III) is decided in favour of defendants.
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[2023:RJ-JP:13689] (23 of 32) [CFA-3/1992] Issue No.(IV):-
"(IV) Whether a Will had been executed by Smt. Buddho Devi on 15th April 1978 in favour of plaintiff, defendant No.1 and son of third deceased son late Sh. Radha Kant?"
18. This issue is in respect of execution of the Will dated 15.04.1978 (Ex.A2) by Smt. Buddho Devi, which has indisputably been made in favour of plaintiff Sh. Laxmi Nath, defendant No.1 Sh. Rajni Kant and in favour of Sh. Chandra Kant, son of third deceased son namely late Sh. Radha Kant. It is undisputed fact that Smt. Buddho Devi, wife of late Sh. Laxmi Kant, had three sons plaintiff Laxmi Nath, defendant No.1 Rajni Kant and third son Sh. Radha kant. Through this Will, out of the immovable properties of late Sh. Laxmi Kant bequeathed by him to Smt. Buddho Devi through Will dated 13.01.1963, some portion of residential house and two shops along with other residential portions jointly, in the property situated at Dahi Wali Gali, Bharatpur, was bequeathed by Smt. Buddho Devi to plaintiff and other two shops including the shop in question along with the residential portion, separate as also jointly, was bequeathed to defendant No.1. Other properties have been bequeathed to Sh. Chandra Kant, surviving son of late Sh. Radha Kant. Plaintiff has not challenged the Will dated 15.04.1978 and in his cross examination, when this Will was put to plaintiff, he expressed his ignorance about such Will. The Will has been produced by defendant No.1 and has been proved through its scriber and witness namely Sh. Satish Kumar Sharma, Advocate (DW-3). (Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (24 of 32) [CFA-3/1992] Learned trial court, after appreciating evidence of both parties, has held that the Will dated 15.04.1978 by Smt. Buddho Devi is lawful and valid and stands proved and accordingly, has decided the Issue No.(IV) in favour of defendants.
19. Findings of the Issue No.(IV) are not under challenge before this Court nor from the side of respondents-plaintiff, such findings have been disputed. Otherwise also, as per the available evidence and according to the applicable proposition of law, this Court finds that the trial Court has not committed any error of law and fact in deciding the Issue No.(IV), as such the findings of Issue No.(IV) are hereby affirmed.
Issue Nos.(I) & (II):-
"(I) Whether the plaintiff was a coparcener along with the defendant No.1 in respect of the suit property and therefore, he was a co-sharer?
(II) Whether the law of preemption was applicable to the shop in question, which is not applicable to business premises?"
20. Learned trial Court, while deciding Issue No.(I) partially in favour of plaintiff and Issue No.(II) against defendants, held that plaintiff is co-parcener/co-sharer in the shop in question with defendant No.1 and although law of pre-emption does not come in place for commercial premises, but by virtue of Section 22 of the Hindu Succession Act, 1956, plaintiff possesses a preferential right to purchase the shop in question qua defendant No.2 who is a stranger being co-parcener/co-sharer. Findings on Issue No.(I), treating the plaintiff as co-parcener and successor of late Sh. (Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (25 of 32) [CFA-3/1992] Laxmi Kant, in respect of the shop in question, were given by the trial court, holding Issue No.(III) against defendants that Will of Sh. Laxmi Kant dated 13.01.1963 is not proved; This Court has reversed findings of the trial Court in respect of Issue No.(III) and affirmed findings in respect of Issue No.(IV), therefore, now the factual position emerges that Sh. Laxmi Kant had bequeathed his immovable property of Dahi Wali Gali, Bharatpur, including the shop in question to his wife Smt. Buddho Devi through Will dated 13.01.1963 (Ex. A1) and after death of Sh. Laxmi Kant in the year 1977, Smt. Buddho Devi become absolute owner of the shop in question, thus during lifetime of Smt. Buddho Devi, it cannot be said that plaintiff and defendant No.1 being sons of Sh. Laxmi Kant become co-sharer/co-parcener in respect of shop in question. Smt. Buddho Devi through her Will dated 15.04.1978 had bequeathed the shop in question with other properties to defendant No.1 and some properties to plaintiff, which is not disputed. After death of Smt. Buddho Devi in the year 1985, her Will dated 15.04.1978 come in operation and accordingly, the shop in question came in ownership and possession of the defendant No.1, who sold the same to defendant No.2 through the registered sale deed dated 30.04.1986. Therefore, on the basis of such factual matrix, plaintiff does not acquire any status of co- parcener/co-sharer as far as shop in question is concerned, and as a consequential corollary, the claim by plaintiff to have a preferential right to purchase the shop in question by virtue of (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (26 of 32) [CFA-3/1992] Section 22 of the Hindu Succession Act, 1956 does not vest in the plaintiff.
It is settled proposition of law as has been held by the Apex Court in case of Babu Ram Vs. Santokh Singh [(2019) 14 SCC 162] in Para No.24 that content of preferential right as enshrined u/s 22 of the Hindu Succession Act, 1956 cannot be dis-associated from the principles of succession; They both are part of same concept. Therefore, this Court is of firm opinion that plaintiff does not possess and acquire any preferential right to purchase the shop in question by virtue of Section 22 of the Hindu Succession Act, 1956 since plaintiff is miserably failed to prove himself as co- parcener/co-sharer in the shop in question. Thus, findings of the trial Court, recorded in favour of plaintiff in respect of his status as co-parcener/co-sharer in the shop in question having a preferential right to purchase the shop, are not liable to be sustainable and as such are hereby quashed. Issues No.(I) & (II) are decided accordingly.
21. In addition to above, it may be observed that though learned trial Court observed that plaintiff has a preferential right to purchase the shop in question by virtue of Section 22 of the Hindu Succession Act, 1956, but as a matter of fact, the prayer of plaintiff to purchase the shop in question and to get possession thereof, was rejected in the impugned judgment, more particularly in view of the fact that one civil suit for partition including the shop in question was pending at the behest of plaintiff's son namely Sh. Sudhir Kant. It has been informed that partition suit (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (27 of 32) [CFA-3/1992] filed by Sh. Sudhir Kant titled as Sudhir Kant Vs. Laxmi Nath has been dismissed in default for non prosecution by the Court of Additional Civil Judge (Senior Division) No.2, Bharatpur vide order dated 18.07.2005. The order sheet dated 18.07.2005 has been placed on record by appellants along with application under Order 41 Rule 27 CPC. The application shall be dealt with hereinafter, however, from the side of respondents, the factum of dismissal of the suit for partition has not been refuted. Plaintiff has not preferred any appeal or cross objection, feeling aggrieved by rejection of his prayer by the trial Court to purchase/get possession of the shop in question. Thus, even otherwise, this is an additional reason that the prayer made by plaintiff in the suit, to purchase the shop in question and for its possession, which has been rejected by the trial Court vide impugned judgment and decree dated 04.11.1991, is not liable to be accepted, therefore, from this angle also the plaintiff is not entitled to get decree to purchase the shop in question, even otherwise.
22. As has already been observed that the learned trial Court has declared the registered sale deed dated 30.04.1986 as null and void through which the shop in question was sold by defendant No.1 to defendant No.2, although the suit of plaintiff to have a preferential right to purchase the shop in question was rejected, basically on the ground that at the relevant point of time of execution of sale deed in question, an interim injunction order was in operation in the civil suit for partition filed by plaintiff's son Sh. Sudhir Kant, however, in view of the undisputed fact that the (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (28 of 32) [CFA-3/1992] said partition suit has already been dismissed way back on 18.07.2005 and even if the sale deed was executed despite interim injunction order, though this fact is not admitted by defendants, the sale deed in question does not become annulled automatically on this count only. It has already been held that defendant No.1 had acquired the absolute ownership and possession of the shop in question from Smt. Buddho Devi and therefore, registered sale deed dated 30.04.1986 executed by him in favour of defendant no.2 stands lawful and valid. The judgment and decree dated 04.11.1991 passed by the learned trial Court, declaring the sale deed dated 30.04.1986 as null and void, deserves to be quashed and set aside, for reasons discussed hereinabove in the foregoing paragraphs.
23. Before parting with the judgment, this Court deems it just and proper to deal with the pending application under Order 41 Rule 27 CPC filed by and on behalf of appellants, to brought on record some subsequent events/facts occurred during course of first appeal. The application has not been replied by respondents nor the additional and subsequent facts supported with documents stated in the application, have been refuted from the side of respondents.
24. By way of the application under Order 41 Rule 27 CPC, appellants have sought to place on record a copy of the order sheet dated 18.07.2005 to show that civil suit for partition filed by plaintiff's son Sh. Sudhir Kant in respect of properties left out by late Sh. Laxmi Kant including the shop in question has already (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (29 of 32) [CFA-3/1992] been dismissed in default for non prosecution. This fact has not been denied/disputed from the side of respondents and the genuineness of the order sheet being record of a Judicial Court cannot be doubted in any manner, as such the subsequent fact of dismissal of the civil suit for partition on 18.07.2005, being an undisputed fact, is taken on record. In addition, appellants have sought to brought on record a fact, by placing a photostat copy of the sale deed dated 15.05.2008 that during pendency of the present appeal, legal representatives of deceased respondent- plaintiff Sh. Laxmi Nath including wives of Jai Kant, Sudhir Kant and Sanjay Kant have purchased part of properties from legal representatives of deceased appellant-defendant No.1 Rajni Kant, which received to Rajni Kant through Will of Smt. Buddho Devi dated 15.04.1978 and thereby, respondents themselves have accepted/acknowledged the Will of Smt. Buddho Devi dated 15.04.1978. From the side of respondents, the factum of having purchased properties through registered sale deed dated 15.05.2008 has not been disputed and otherwise also, as has already been held in Issue No.(IV) that the Will dated 15.04.1978 stands proved and such findings have not been assailed from the side of respondents-plaintiff, therefore, it is needless to prove the execution of the Will dated 15.04.1978, by way of producing additional factum of execution of sale deed dated 15.05.2008. Hence this sale deed is not required to be produced as an additional evidence, and is not taken on record. (Downloaded on 11/11/2023 at 06:13:49 PM)
[2023:RJ-JP:13689] (30 of 32) [CFA-3/1992]
25. Apex Court, in case of Union of India Vs. K.V. Lakshman & Ors.[2016 (13) SC 124], held that the order 41 Rule 27 CPC is a provision which enables the parties to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties.
26. In respect of subsequent events occurred after filing of the suit, it is well established principle of law that the Court has power to take note of such subsequent events and also to mould the relief accordingly. In respect of consideration of subsequent events, the celebrated judgment of Hon'ble Apex Court in case of Pasupuleti Venkateswarlu V. Motor & General Traders [(1975)1 SCC 770], may be referred. In this judgment, the Apex Court held that a fact arising after the lis, coming to the notice of the court and having a fundamental impact on the right to relief or the manner of moulding it and brought diligently to the notice of the court cannot be blinked at. The court may in such cases bend the rules of procedure if no specific provision of law or rule of fair play is violated for it would promote substantial justice provided that there is absence of other disentitling factors or just circumstances. The Court speaking through Krishna Iyer, J. affirmed the proposition that the court can, so long as the (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (31 of 32) [CFA-3/1992] litigation pends, take note of updated facts to promote substantial justice. However, the Court cautioned: (i) the event should be one as would stultify or render inept the decreetal remedy, (ii) rules of procedure may be bent if no specific provision or fair play is violated and there is no other special circumstance repelling resort to that course in law or justice, (iii) such cognizance of subsequent events and developments should be cautious, and (iv) the rules of fairness to both sides should be scrupulously obeyed.
27. The aforesaid judgment has been followed by the Apex Court in catena of subsequent judgments and recently in case of Hukumchandra(D) Thru Lrs. vs Nemi Chand Jain [(2019) 13 SC 363], in the dispute, in respect of rent control and eviction matters and the Supreme Court observed as under:-
"The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtained at the commencement of the litigation. Whenever, there is subsequent events of fact or law, which have a material barring on the rights of the parties to relief or on the aspects of moulding appropriate relief to the parties, the court is not precluded from taking cognizance of the subsequent changes of fact and law to mould the relief (vide Ramesh Kumar v. Kesho Ram (1992) Supp 2 SCC 623)"
28. In view of above, subsequent events/facts as narrated in the application under Order 41 Rule 27 CPC, being undisputed, are taken on record and have been considered. Accordingly, the application under Order 41 Rule 27 CPC stands disposed of.
29. The final outcome of the discussion made hereinabove is that the plaintiff has not been found to be a co-parcener/co-sharer in (Downloaded on 11/11/2023 at 06:13:49 PM) [2023:RJ-JP:13689] (32 of 32) [CFA-3/1992] the shop in question along with defendant No.1 and as such the claim of plaintiff, to have a preferential right to purchase the shop in question by virtue of Section 22 of the Hindu Succession Act, 1956 is not sustainable on facts and in the eye of law. The shop in question came in absolute ownership and possession of defendant No.1 through Will dated 15.04.1978 of Smt. Buddho Devi, who obtained the property from her husband late Sh. Laxmi Kant through his Will dated 13.01.1963, as such the sale deed in question dated 30.04.1986 through which defendant No.1 sold the shop in question to defendant No.2, remains a lawful and valid document. The trial Court has committed error of fact and law in declaring the registered sale deed in question dated 30.04.1986 as null and void. Accordingly, the judgment and decree dated 04.11.1991 passed by the trial Court is not liable to be sustained and the same deserves to be quashed.
30. As a final result, the first appeal is allowed and the impugned judgment and decree dated 04.11.1991 passed by the trial Court in Civil Suit No.115/1991 is hereby quashed and set aside and the civil suit filed by the plaintiff Sh. Laxmi Kant is hereby dismissed in toto. Decree be framed accordingly. Parties shall bear their own cost of litigation. Record of the trial Court be sent back.
31. All pending application(s), if any, stand(s) disposed of.
(SUDESH BANSAL),J SACHIN (Downloaded on 11/11/2023 at 06:13:49 PM) Powered by TCPDF (www.tcpdf.org)