Himachal Pradesh High Court
Biasan Devi vs Kushal Kumar And Others on 3 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 273/2004 Reserved on 2.11.2015 Decided on 3.11.2015 .
________________________________________________________________ Biasan Devi ...............Appellant Versus Kushal Kumar and others ..........Respondents ________________________________________________________________ of Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge Whether approved for reporting? 1 No. ________________________________________________________________ rt For the Appellant : Mr. Karan Singh Kanwar, Advocate.
For the Respondents : Mr. S.D. Gill, Advocate, for respondents No.1 to 3.
Mr. Dushyant Dadwal, Advocate, for respondents No. 5 to 9.
None for respondent No. 4.
________________________________________________________________ Rajiv Sharma, Judge This Regular Second Appeal has been instituted against judgment and decree dated 14.6.2004 rendered by learned District Judge, Hamirpur, H.P. in Civil Appeal No. 08 of 2002.
2. "Key facts" necessary for the adjudication of the present appeal are that the appellant-plaintiff (hereinafter referred to as 'plaintiff' for convenience sake), filed a suit for 1 Whether the reporters of the local papers may be allowed to see the judgment? No. ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 2 declaration and possession against the respondents-defendants and proforma defendants (hereinafter referred to as 'defendants' for convenience sake), qua the suit land as detailed in the plaint, .
as per Jamabandi for the year 1989-90, situate in Tikka Kadihar, Tappa Lagwalti, Tehsil and District Hamirpur. According to the averments made in the plaint, late Ghungar was owner-in-
possession of the suit land. Shri Ghungar expired on 7.10.1995 of at village Kadihar. Defendants No.1 to 3 were openly proclaiming that they have got executed a Will from Late Ghungar, which was rt illegal. Shri Ghungar Ram has not executed any will and even if any Will was executed same was out of fraud. Plaintiffs also prayed for a decree of declaration that they were heirs of Late Ghungar. They also prayed for consequential relief of permanent injunction against the defendants restraining them from changing the nature of suit land, raising any construction and dispossessing the plaintiffs from the suit land.
3. Suit was resisted and contested by defendants No. 1 to 3. According to them, Ghungar Ram has executed a Will in favour of defendants No.1 and 2 on 13.9.1995. Shri Ghungar Ram was living with defendants No.1 to 3 for the last more than 20 years. Smt. Jashodhan Devi, mother of defendant No.3 widow of Ghungar was living with Brij Lal and he was providing necessary amenities to her.
::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 34. Replication was filed by the plaintiff. It is made clear at this stage that earlier suit was filed by the plaintiff in her own capacity as well as on behalf of minors i.e. Neelam and Anita.
.
5. Issues were framed by the learned trial Court on 15.1.2001. Civil Suit was dismissed on 28.12.2001. Thereafter appeal against judgment and decree dated 28.12.2001 was filed before the learned District Judge, who also dismissed the appeal of vide judgment and decree dated 14.6.2004. Hence, this appeal.
6. The Regular Second Appeal was admitted on rt 29.3.2005. Substantial questions of law as detailed in the grounds of appeal as well as contained in application filed under Order 41 Rule 2 CPC (CMP No. 731/2004) arose for determination. Since all the substantial questions of law are interconnected, as such, same are being taken up together to avoid repetition of discussion of evidence.
7. Mr. Karan Singh Kanwar, Advocate, on the basis of substantial questions of law framed, has vehemently argued that defendants No.1 to 3 have failed to prove Will Ext. D1. He then contended that the learned Courts below wrongly placed reliance on the testimony of DW-2 and DW-3. He also contended that the application under Order 41 Rule 27 CPC has wrongly been rejected.
::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 48. Mr. S.D. Gill and Mr. Dushyant Dadwal, Advocates, have supported the judgments and decrees passed by learned Courts below.
.
9. I have heard the learned counsel for the parties and also gone through the record carefully.
10. The Will in question is Ext. D1 dated 13.9.1995 executed by Ghungar Ram in favour of defendants No.1 and 2.
of PW-1 Smt. Biasan Devi deposed that her father-in-law Late Ghungar Ram died at the age of 96 years. Ghungar has not rt provided any land to her. She used to live in the joint family. Her husband had died 26 years back. Her father-in-law died later on.
After the age of 80 years, her father-in-law was not keeping good health. Her father-in-law was looked after by her and her mother-in-law. Shri Ghungar Ram was illiterate. In her cross-
examination, she has admitted that after the death of her husband, her father-in-law started living with Brij Lal and also used to take food with them as well as defendants. She also admitted that her father-in-law died in the house of Brij Lal. Her her mother-in-law also died in the house of Brij Lal. Last rites of mother-in-law were performed by Brij Lal.
11. PW-2 Mango Devi who was examined in rebuttal of evidence of the defendants, deposed that Ghungar was her father. At the relevant time, physical and mental health of Ghungar was not good. He was not able to distinguish right from ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 5 the wrong. He was hard of hearing. His eye-sight was weak. He was not able to walk. Ghungar Ram has not executed any Will.
He has divided land between two sons equally. Sons were living .
separately. She also admitted that Ghungar was looked after by Shri Brij Lal and Biasan Devi. In her cross-examination, she testified that father was being looked after by Brij Lal. Last rites of her father were performed by Brij Lal.
of
12. PW-3 Ranbir Singh has deposed that the name of his father was Ishwar Dass. His father sold land to Roshan Lal and rt Ghungar Ram. In his cross-examination he stated that he heard about payment of consideration from his father but the same was hearsay.
13. PW-4 Roshan Lal deposed that he was Vice President of Gram Panchayat Kuhal from 1995 to 2000. He knew Ghungar Ram. He remained ill for ten years. His eye-sight was weak. He was looked after by the plaintiff.
14. DW-1 Kushal Kumar deposed that Ghungar Ram used to live with Brij Lal. He was his grand-father and was being maintained by them. Last rites of Ghungar were performed by them. Biasan Devi did not maintain Ghungar Ram nor participated in the last rites of Ghungar Ram. They were in possession of the suit land. Ghungar Ram executed a Will in favour of contesting defendants. Biasan Devi was in Government service. He has denied the suggestion that Late Ghungar and ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 6 Jashodhan Devi used to live with Biasan Devi. He also denied that after the age of 80 years, his grand-father did not keep good health.
.
15. DW-2 Ramesh Kumar scribed the Will Ext. D1. He has read over and explained the contents of Will to Shri Ghungar in the presence of witnesses. He, after admitting the same to be correct, put his signatures on Ext. D1, in the presence of of witnesses. Will was entered in the register vide Ext. DW-2/A.
16. DW-3 Jagan Nath Sharma, Registration Clerk testified that rt Ext. D1 was entered in his office vide Will No. 237 dated 13.9.1995. Will was executed in his office on 13.9.1995.
He identified signatures of Gokal Chand Sharma, the Sub Registrar.
17. DW-3A Gokal Chand, remained as Sub Registrar from September 1995 to November, 1998. On 13.9.1995, Ghungar Ram executed a registered Will in his office. Will was read over and explained to the executant which was admitted to be correct. He identified his signatures on the Ext. DW-3A and DW-2/A. Witnesses and Shri Ghungar had put their signatures on Ext. D1 in his presence. He was in good state of health.
18. DW-4 Shri Amin Chand deposed that Brij Lal and his sons used to render services to Ghungar. Last rites of Ghungar were performed by Brij Lal. He used to live with Brij Lal.
Ghungar Ram has purchased land for both of his sons. He has ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 7 executed Will in favour of his grand-sons vide Ext. D1. Will was scribed by petition-writer and was read over to Ghungar, who after admitting the same to be correct put his signatures in his .
presence and in the presence of witnesses. Ghungar Ram was in good state of health. Will was presented before Sub Registrar.
Sub Registrar read over and explained the Will to Ghungar. Shri Ghungar Ram put his signatures on the Will. He identified his of signatures on the Will. He also identified the signatures of Vipan Kumar on Ext. DW-2/A.
19. rt It is evident from a close scrutiny of the evidence as discussed herein above that Ext. D1 was scribed by DW-2 Ramesh Kumar. He read over the contents of the Will to Shri Ghungar Ram and Ghungar Ram after admitting the same to correct put his signatures on Ext. D1. DW-4 Amin Chand is the marginal witness. He also deposed that Will was scribed by the petition writer and was read over and explained to Ghungar Ram, who after admitting the same to be correct put his signatures in his presence. DW-3 Jagan Nath Sharma deposed that the Will was entered in his office. DW-3A Gokal Chand was Naib Tehsildar Bhoranj before whom, will was presented for registration. He read over and explained to the executant the contents of the Will. He after admitting the same to be correct put his signatures on Ext. D1 in his presence. PW-1 has admitted categorically as discussed herein above in the cross-
::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 8examination that Ghungar Ram used to live with Brij Lal. His last rites were performed by Brij Lal. Similarly, PW-2 Mango Devi has admitted that Ghungar Ram used to live with Brij Lal. It has .
come in the evidence that though the executant was an old man, but all his faculties were intact. Ghungar Ram was being maintained by Brij Lal. PW-4 Roshan Lal has also admitted in his cross-examination that Shri Ghungar died in the house of Brij of Lal. Will Ext. D1 dated 13.9.1995 is a valid document. Merely that the executant died 22 days after execution of Will, will not rt make his execution suspicious. Also, that natural heirs were deprived of the land/property, would not be a suspicious circumstance.
20 .Plaintiffs have also moved an application under Order 41 Rule 27 CPC before the learned first appellate Court to prove sale deed dated 7.9.1977. Same was rejected by the learned District Judge on 14.6.2004 by rightly observing that additional evidence i.e. sale deed dated 7.9.1977 has no bearing on the outcome of the appeal since plaintiff has challenged the Will. Adjudication of the application was immaterial to decide the real controversy between the parties.
CMP No. 732/200421. Plaintiff has also moved an application under Order 41 Rule 27 CPC before this Court being CMP No. 732/2004.
According to the averments made in the application suit property ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP 9 was ancestral qua Ghungar Ram and he had 1/5th share in the same. Plaintiff ought to have taken this plea while filing civil suit.
Plaintiff can not be permitted to rake up a new issue after nine .
years of filing suit. Order 41 Rule 27 CPC can not be used to fill up lacunae. Plaintiff has not shown that despite due diligence, she was not aware of the entry of ownership of land of Late Ghungar. Accordingly, the application is dismissed.
of RSA No. 273/2004
22. Courts below have correctly appreciated the oral as rt well as documentary evidence including the statements of DW-2 Ramesh Kumar and DW-3A Gokal Chand. Substantial questions of law are answered accordingly.
23. Consequently, there is no merit in the appeal and the same is dismissed. Pending application(s), if any, also stand disposed of. No costs.
(Rajiv Sharma) Judge November 3, 2015 (Vikrant) ::: Downloaded on - 15/04/2017 19:18:13 :::HCHP