Himachal Pradesh High Court
Reserved On: 5.8.2024 vs Chander Shekhar & Ors on 24 August, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2016:HHC:10999 ) IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 443 of 2007 Reserved on: 5.8.2024 .
Decided on: 24.8.2024 Uma Dutt & ors.
... Appellants Versus Chander Shekhar & ors.
...Respondents ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ___________________________________________________ For the Appellants: Mr. Chander Shekhar Sharma, Advocate.
For the Respondents :Mr. R.K. Gautam, Senior Advocate with Mr. Jai Ram Sharma, Advocate.
Virender Singh, Judge The appellants have preferred the present Regular Second Appeal, under Section 100 of the Code of Civil Procedure, against the judgment and decree, dated 10.8.2007, passed by the Court of learned Additional District Judge, District Sirmour ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 2 ( 2016:HHC:10999 ) at Nahan, H.P. (hereinafter referred to as 'the First Appellate Court'), in Civil Appeal No. 25-N/13 of 1995, titled as, 'Uma Dutt and another versus .
Chander Shekhar and another'.
2. Vide judgment and decree, dated 10.8.2007, the learned First Appellate Court has dismissed the appeal, preferred by Uma Dutt and another, which has been preferred against the judgment and decree, dated 18.5.1995, passed by the Court of learned Sub Judge, 1st Class, Court No. 2, Paonta Sahib, District Sirmour, H.P. (hereinafter referred to as 'the learned trial Court'), in Civil Suit No. 24/1 of 95/92, titled as, 'Chander Shekhar & another versus Uma Dutt and another', whereby, the learned trial Court has partly decreed the suit of the respondents, by granting the following relief:
"33. Cumulative effect of all the discussions made above and conclusions arrived at supra is that the instant suit succeeds and the same is, therefore, decreed in part. I, accordingly, pass a decree for possession in favour of the plaintiffs after ejectment of the defendants from the disputed portion shown with red ink in the map Ext. PW2/A of the house situated in village Kedarpur comprised in khata No. 78, Khatauni No. 108, Khasra No. ::: Downloaded on - 24/08/2024 20:29:32 :::CIS
3 ( 2016:HHC:10999 ) 423/334/60 measuring 2 biswas. The defendants are directed to hand over the possession to the plaintiffs at once. However, the claim of the plaintiffs for grant of mesne profits being not pressed is dismissed. Keeping in view the relations between the parties, they are left to bear their own costs."
.
3. For the sake of convenience, the parties to the lis are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
4. Brief facts leading to filing of the present appeal, before this Court, may be summed up, as under:
Plaintiffs Chander Shekhar and Hem Chand, sons of Jai Prakash Sharma, have filed the suit for possession and mesne profits, against the defendants, on the ground that Shri Babu Ram Shastri, S/o Shri Nanhe Mull, was resident of Paonta Sahib and he had constructed his house over the land, comprising khata No. 78, khatauni No. 108, khasra No. 423/334/60, measuring 2 biswas, as per Jamabandi, for the year 1990-91 of village ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 4 ( 2016:HHC:10999 ) Kedarpur, Tehsil Paonta Sahib, District Sirmour, H.P. (hereinafter referred to as 'the house in question'). The plaintiffs have also annexed the .
sketch plan of the house in question, alongwith the plaint.
4.1 It is the further case of the plaintiffs that during his lifetime, Shri Babu Ram Shastri remained in possession of the house in question, however, he had given the portion of this house, as depicted in red ink, in the sketch plan, to the defendants, for their residence, due to his relationship with them.
Babu Ram Shastri had not charged anything from them, on account of use and occupation charges.
The plaintiffs were also residing in the same house alongwith other members of their family.
4.2 According to plaintiffs, during his lifetime, Shri Babu Ram Shastri had executed a Will, on 13.8.1986, which was duly registered with the Office of Sub-Registrar, Paonta Sahib, District Sirmour, H.P. By way of the said Will, Babu Ram had ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 5 ( 2016:HHC:10999 ) distributed his other properties and bequeathed the house in question to the plaintiffs to the exclusion of everybody else, except his wife Saroj, who was given .
the right to reside in the house in question, during her lifetime. The said Will is stated to be executed by Shri Babu Ram, with his sound and disposing state of mind. Babu Ram Shastri is stated to have expired on 28.10.1991.
4.3 On the basis of Will, dated 13.8.1986, the plaintiffs have asserted their ownership and possession, over the house in question. However, according to them, after the death of Babu Ram, defendants had started challenging the title of the plaintiffs over the house in question and started asserting their ownership over the portion of the house in question, which was in their possession.
Requests of the plaintiffs to vacate the portion of the house in question, in their possession, fell on deaf ears of the defendants.
::: Downloaded on - 24/08/2024 20:29:32 :::CIS6 ( 2016:HHC:10999 )
5. On the basis of above, the plaintiffs have sought the decree for possession of the portion, shown in red ink, in the site plan, out of the house .
in question, as well as, for mesne profits.
6. When, put to notice, the suit was contested by the defendants, in which, they have taken the preliminary objections that the suit is bad for non-
joinder of necessary parties, as, plaintiffs have not arrayed Smt. Saroj, widow of Babu Ram.
6.1 Apart from this, the defendants have taken the preliminary objections, with regard to the fact that the plaintiffs have no cause of action to file the suit, and the suit is not properly valued for the purpose of Court fee and jurisdiction.
6.2 On merits, ownership of Babu Ram over the house in question, has not been disputed. However, according to the defendants, Babu Ram had not raised the construction of the entire house, exclusively, at his own expenses.
::: Downloaded on - 24/08/2024 20:29:32 :::CIS7 ( 2016:HHC:10999 ) 6.3 Elaborating their stand, the defendants have pleaded that few years prior to the construction of the house in question, Babu Ram had brought them .
from U.P. and permitted them to raise construction, over the suit property, on their own expenses and costs. Consequently, defendants had constructed a portion of the house, in which they are residing.
These facts have been pleaded by the defendants to show that Babu Ram had created a permanent license, which according to them, is irrevocable, in their favour.
6.4 Not only this, defendants have also pleaded that defendant No. 1 had also spent a considerable amount and helped late Babu Ram to raise construction of the remaining portion of the house in question.
6.5 Asserting their possession over the portion of the house in question, shown in red ink, in the spot map, the defendants have asserted that Babu Ram, during his life time, had not charged anything from ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 8 ( 2016:HHC:10999 ) them. According to them, plaintiffs never resided with Babu Ram. They have also disputed the alleged Will, dated 13.6.1986 by pleading the fact that the .
same is result of fraud, misrepresentation and forgery. According to the defendants, deceased Babu Ram never disclosed the fact of execution of the Will, in favour of the plaintiffs.
6.6 Not only this, the plaintiffs have also asserted the fact that Babu Ram, prior to his death, fell ill and became a man of feeble mind and weak intellect.
6.7 The suit has also been contested on the ground that plaintiffs are quarrelsome in nature and when they had failed to desist from their activities to interfere in the possession of the defendants, then, a meeting was convened, in which, they were advised to refrain from doing illegal acts and not to grab the due share of the defendants, in the house and on the advise of the respectables, the plaintiffs realized their fault and executed an agreement, dated ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 9 ( 2016:HHC:10999 ) 26.9.1992, whereby, they had agreed to make a payment of Rs. 75,000/- to the defendants, within two years, and in case, they fail to do so, they had .
agreed to admit the defendants, as owners of the portion of the house in question in the possession of the defendants. The plaintiffs, according to the defendants, had also agreed not to disturb the possession of the defendants, till the payment of Rs.
75,000/- is made.
6.8 On the basis of above facts, a prayer has been made to dismiss the suit.
7. Plaintiffs have filed replication, denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested, by re-asserting that of the plaint.
8. With regard to the allegations of execution of the agreement, dated 26.9.1992, between the parties, the plaintiffs have pleaded that after death of Babu Ram, defendants had started playing ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 10 ( 2016:HHC:10999 ) mischief with the family members of plaintiffs, by lodging false complaints and harassing them, with a view to pressurize them to give title over the house .
in question.
8.1 Not only this, defendant No. 1 is stated to have threatened the plaintiffs to get arrested or in the alternative, pressurized them to make a payment of Rs. 75,000/-. The agreement dated 26.9.1992 is stated to be false and the signatures of the plaintiffs are stated to be obtained in connivance with the Police and witnesses. The alleged agreement is stated to be signed by the plaintiffs in order to get rid of the clutches of the Police.
9. From the pleadings of the parties, the following issues were framed by the learned trial Court, on 12.1.1993:
1. Whether late Shri Babu Ram executed Will dated 13.8.1986 in favour of the plaintiffs?
2. If issue No. 1 is proved in affirmative, whether plaintiffs are entitled for the recovery of possession as prayed?OPP ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 11 ( 2016:HHC:10999 )
3. Whether plaintiffs are entitled for the mesne profits, as prayed? OPP
4. Whether late Shri Babu Ram created the permanent irrevocable licence in favour of the .
defendants, as claimed? OPD
5. Whether plaintiffs are restrained from filing the present suit due to their own act, conduct and acquiescence? OPD
6. Whether there is no cause of action? OPD.
7. Whether the suit is bad for non-joinder of necessary parties? OPD
8. Whether suit is properly valued? OPD
9. Relief.
10. Thereafter, parties to the lis were directed to adduce evidence. After closure of evidence, the learned trial Court heard the learned counsel appearing for both the parties and partly decreed the suit of the plaintiffs, vide judgment and decree, dated 18.5.1995, as referred above.
11. Against the said judgment and decree, the defendants had preferred the Civil Appeal No. 25- N/13 of 1995, before the learned First Appellate Court. The learned First Appellate Court, vide judgment and decree, dated 1.5.1998, had ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 12 ( 2016:HHC:10999 ) remanded back the matter to the learned trial Court, with a direction to proceed with the case afresh, after taking amended plaint from the .
plaintiffs, impleading Saroj, the widow of the testator, taking her written statement on record and evidence, if any, with regard to Will and also, after framing necessary issue(s), with regard to the agreement dated 26.9.1992, taking additional evidence, if any, on the same and deciding the case afresh, in accordance with law.
12. The aforesaid judgment has been assailed by the plaintiffs, before this Court, by filing RSA No. 231 of 1998, which was decided on 22.8.2006, by passing the following judgment:
"Based upon the aforesaid reasoning, I set aside the impugned judgment and decree of the learned Additional District Judge passed on 1st May, 1998 and remit the matter to him for re- deciding the first appeal in the light of, and based upon the following directions:
(I) He shall pass an appropriate judgment exercising his jurisdiction as a first appellate Court, by a proper appreciation of evidence, with respect to the findings returned by learned trial Court on all the issues.::: Downloaded on - 24/08/2024 20:29:32 :::CIS
13 ( 2016:HHC:10999 ) (2) In the process he shall himself decide whether the agreement dated 26th September, 1992, admitted to have been executed by the appellants-plaintiffs, has or had any relevance to the issues involved and to the property as well as rights and obligations of the parties upon the said property and as to whether this .
agreement by itself conferred or vested any right, without any further or additional availing of remedies by the defendants- respondents, qua the property in question. (3) The parties submit and undertake before me that they shall not be producing any additional evidence for the adjudication of the aforesaid question relating to the aforesaid agreement by the learned Additional District Judge. The appeal allowed to the aforesaid extent. The matter being remitted to the learned Additional District Judge, Sirmaur District at Nahan, the parties through their learned counsel are directed to appear before him on 14 th September, 2006. Since the matter has already been inordinately delayed, I direct that the appeal shall now be disposed of latest by 30th November, 2006. No orders as to costs."
13. Thereafter, the learned First Appellate Court, vide judgment and decree, dated 10.8.2007, dismissed the appeal, preferred by the defendants.
14. Feeling aggrieved from the said judgment and decree, the present Regular Second Appeal has been preferred, before this Court, assailing the judgment and decree, passed by the learned trial Court and upheld by the learned First Appellate Court, on the ground that both the Courts below have failed to ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 14 ( 2016:HHC:10999 ) appreciate the pleadings of the parties, as well as, oral and documentary evidence, led by the parties, especially the statements of PW-1, PW-3, PW-4, DW-
.
1, DW-2 and DW-3, Ext. PW3/A, Ext. DW1/A and Ext. D1.
15. The findings of the Courts below have been assailed further on the ground that the learned First Appellate Court has failed to comply with the directions, issued by this Court, on 22.8.2006, while deciding RSA No. 231 of 1998, as this Court had given three directions, in the aforesaid judgment, but, those directions have not been complied with. As such, according to the appellants, the impugned judgment and decree, passed by the learned First Appellate Court, deserves to be set aside.
16. The findings of both the Courts below have further been assailed on the ground that both the Courts below have failed to appreciate the provisions of Sections 17, 18 and 49 of the Indian ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 15 ( 2016:HHC:10999 ) Registration Act, as according to them, the parties have resolved their differences, by way of compromise, dated 26.9.1992, Ext. D-1 and Ext. D-
.
1 does not fall within the ambit and scope of Sections 17 and 49 of the Registration Act.
17. The appellants have further pleaded that even if document Ext. D-1 is taken to be falling within the domain of Section 17 of the Registration Act, then, the said document could be construed to be an agreement, whereby possession was admitted to be that of the defendants/appellants, and as such, they are entitled for the protection of Section 53-A of the Transfer of Property Act.
18. The present appeal has also been filed on the ground that the application under Order 6 Rule 17 CPC has also wrongly been dismissed by the learned First Appellate Court. According to the appellants, the Will, Ext. PW3/A has not been proved to be the document, executed by the testator, with his sound and disposing state of mind. As such, the said ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 16 ( 2016:HHC:10999 ) document is stated to be the result of fraud and forgery. The suspicious circumstances could not be dispelled by the propounder of Will.
.
19. On the basis of above facts, Mr. Chander Shekhar Sharma, Advocate, appearing for the appellants has prayed that the present appeal may kindly be accepted, by setting aside the impugned judgments and decrees, passed by both the Courts below and suit of the plaintiff is prayed to be dismissed.
20. Per contra, Mr. R.K. Gautam, learned Senior Counsel, assisted by Mr. Jai Ram Sharma, Advocate, has prayed that the learned trial Court has rightly appreciated the oral, as well as, documentary evidence, adduced by the parties, and partly decreed the suit of the plaintiffs, which has been upheld by the learned First Appellate Court.
As such, highlighting the scope of this Court under Section 100 of the CPC, it has been prayed that the concurrent findings, cannot be interfered by this ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 17 ( 2016:HHC:10999 ) Court. Hence, a prayer has been made to dismiss the present Regular Second Appeal.
21. The present appeal has been admitted on .
26.9.2007, on the following substantial questions of law:
(I) Whether the beneficiaries setting up a registered Will, the execution and authenticity of which is challenged, is required to discharge the onus as envisaged under the Indian Succession Act and the Indian Evidence Act and whether without the discharge of such onus, it can be construed that the execution of the Will has been proved or that its suspicious circumstances dispelled and whether on the failure to discharge the onus, the Will can be construed to be a valid one?
(2) Whether on the applicability of the provisions of Section 53-A of the Transfer of Property Act, the non registration of the document Ext. D-1 would be construed to be a bar to its admissibility as evidence of part performance and whether the defence as envisaged under this Section could be raised by the party setting up such interest in the suit land and property? (3) Whether an application under Order 6 Rule 17 CPC setting up a counter claim in furtherance of Section 53-A of the Transfer of Property Act made on the basis of an agreement inter se the parties could be allowed at the time of first appeal and the rights of the parties defined and adjudicated and whether dismissal of such application is proper without adjudicating the rights of the parties.
(4) Whether on the basis of the parties setting up completing title and the differences resolved by compromise, there being no question of derivation of title from one to the other, such arrangement would come within the ambit and scope of Sections 17 and 49 of the Registration Act though no interest in the property was created or declared by the document for the first ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 18 ( 2016:HHC:10999 ) time and whether the findings to the contrary are substantial in law?
22. On 25.10.2021, the following additional substantial question of law has been framed, by this .
Court.
"Whether impugned judgment passed by learned Additional District Judge, Sirmaur is vitiated on account of non-compliance of direction of remittance passed in judgment dated 22.8.2006 in RSA No. 231 of 1998 for not returning the findings on issue No. 5?"
23. In this appeal, the appellants have also preferred CMP No. 4430 of 2018, under Order 41 Rule 27 CPC to place on record and prove the document, Annexures A-2 and A-3, as well as, seeking permission to summon the witnesses to prove these documents.
24. The said application has been filed on the ground that while preparing the case for arguments, it has come to the notice of the counsel, representing the appellants that in the document, Ext. D-1, appended on page No. 67 of the trial Court file, there is certification note made by Shri Beer Singh Lambardar, Kedarpur, Tehsil Paonta Sahib, ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 19 ( 2016:HHC:10999 ) District Sirmour, H.P., who has certified that Uma Dutt Sharma, S/o Shri Nanhe Mull, is residing in village Kedarpur with his brother Babu Ram .
Shastri, since 1986. The said document is stated to be signed by Gopi Chand, Up-Pradhan, Gram Panchayat, Bhatanwali, who has given endorsement to the effect that name of Uma Dutt Sharma, S/o Shri Nanhe Mull, has been entered in the Pariwar Register of Gram Panchayat, Kedarpur, since 1986.
This document is stated to be corroborating the version of appellant. These documents are stated to be necessary for the just adjudication of the case, as well as, to decide the real controversy, involved in the present case. Hence, a prayer has been made to allow the aplication.
25. When, put to notice, this application has been contested by the plaintiffs by filing reply, denying the contents of the same, on the ground that the documents, sought to be proved/produced, by way of this application, is nothing, but, an attempt to ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 20 ( 2016:HHC:10999 ) mislead the Court. These documents are stated to have no relevance with the controversy, involved in the present case. As such, a prayer has been made .
to dismiss the application.
26. The learned counsel appearing for the appellant could not satisfy the judicial conscience of this Court as to how the documents, which are already on record, before the learned trial Court, are relevant for the just adjudication of the present case. Consequently, the present application, does not fulfill the ingredients of Order 41 Rule 27 CPC, as such, the same is ordered to be dismissed.
27. In this case, the learned First Appellate Court has decided the appeal preferred by the defendants, bearing Civil Appeal No. 25-N/13 of 1995, on 1.5.1998, whereby, the case was remitted back to the learned trial Court, with the observations, reproduced above.
28. Thereafter, the plaintiffs filed Regular Second Appeal, bearing No. 231 of 1998, before this Court.
::: Downloaded on - 24/08/2024 20:29:32 :::CIS21 ( 2016:HHC:10999 ) This Court, while deciding the aforesaid appeal, remanded the matter back to the learned First Appellate Court, to decide the same afresh, by .
issuing the directions, reproduced above.
29. Thereafter, the learned First Appellate Court has dismissed the appeal, preferred by the defendants, on 10.8.2007.
30. It is the case of the defendants that the learned First Appellate Court has not complied with the directions, issued by this Court, while deciding RSA No. 231 of 1998.
31. The perusal of the judgment passed by the learned First Appellate Court shows that the directions issued by this Court, have duly been complied with, by the learned First Appellate Court.
So, it cannot be said that the directions issued by this Court in RSA No. 231 of 1998 have not been complied with. As such, substantial question of law, framed on 25.10.2021, is decided, against the appellants.
::: Downloaded on - 24/08/2024 20:29:32 :::CIS22 ( 2016:HHC:10999 )
32. So far as the substantial questions of law, framed on 26.9.2007, are concerned, the learned trial Court has upheld the Will, set up by the .
plaintiffs. The Will is a solemn document, which speaks about the arrangements, which the testator has made, with regard to his estate, which will take effect, after his death. Meaning thereby, when the question of devolution of the estate of the testator arises, on the basis of Will, the person, who had executed the said document, is not available, in the world to tell about his intention. In that situation, the Court has to sit on the arm-chair of the testator to consider all the circumstances, which the testator might have taken into consideration, while executing the Will.
33. It is no longer res-integra that before accepting the document as a Will, it is for the propounder to not only dispel the suspicious circumstances, but to prove the fact that document, which is being relied upon as Will, was conscious ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 23 ( 2016:HHC:10999 ) execution of the document, by the testator, with his sound and disposing state of mind. The term "suspicious circumstances" has not been defined .
anywhere, however, it depends upon the peculiar facts and circumstance of each case. No universal formula can be applied.
34. Plaintiffs are the nephews of Babu Ram, whereas, Uma Dutt is real brother of Babu Ram and Dulari is wife of Uma Dutt. Meaning thereby, the parties are closely related to each other, as well as, to testator Babu Ram. This fact, although, has nowhere been mentioned by the plaintiffs, in the pleadings, but, from the deposition, of DW-1, Uma Dutt, this fact stood probabilized, as he has deposed that Babu Ram was his real brother, whereas plaintiffs are his nephews.
35. Since, the plaintiffs have set up their case on the basis of Will, dated 13.8.1986. As such, onus is upon them to prove due execution of document, Ext. PW3/A. To prove this fact, plaintiff No. 1 ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 24 ( 2016:HHC:10999 ) Chander Shekhar has appeared in the witness box.
According to him, Babu Ram expired on 28.10.1991 and he came back to Paonta Sahib, on 1.11.1991, .
as he was serving in Maharashtra. Thereafter, he came to know about the execution of the Will. The Will was allegedly executed on 13.8.1986, about five years prior to death of the testator. On the document, Ext. PW3/A, Surjit Singh and Bali Mohammad, have put their signatures, as witnesses.
36. Out of said two witnesses, Surjit Singh has been examined as PW-3. This witness has deposed that the Will was scribed by Mr. Gupta, Deed Writer, who after scribing the same, read over the contents of the same to the testator, who accepted the same as correct and thereafter, this witness and Bali Mohammad have put their signatures over the Will, as witnesses. Thereafter, the Will was produced before the Tehsildar, where this witness has identified the testator, over the Will Ext. PW3/A. ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 25 ( 2016:HHC:10999 ) From this deposition, status of PW-3, does not fall within the definition of 'attesting witness', but, he was identifier of the testator. Evidence of this .
witness has to be read as a whole, not in the piecemeal. In the opening lines of his examination-
in-chief, he has deposed that he is witness to the document, but, in the next line, he has deposed that he has put signatures over the document, Ext.
PW3/A, as identifier of the testator. Even, in the endorsement made over the Will, Ext. PW4/A, status of Surjit Singh has been mentioned as identifier. Moreover, the plaintiffs have not examined the other attesting witness, Bali Mohammad, to prove the Will. Meaning thereby, although, name of PW-3 has been mentioned, as witness, but, he has not put his signatures with animo attestandi. Hence, evidence of PW-3 is too short to prove the execution of the document, Ext.
PW3/A as Will, in accordance with Section 61 of the ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 26 ( 2016:HHC:10999 ) Indian Succession Act and Section 68 of the Indian Evidence Act.
37. The essential condition of valid attestation .
has elaborately been discussed, by three judges Bench of Hon'ble Supreme Court in case 'M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others', reported in AIR 1969 Supreme Court 1147. In this case, the Hon'ble Supreme Court has categorically held that the person, who puts signatures on the document for some other purpose i.e. to certify that he is a scribe or an identifier or a registering officer, does not fall within the definition of "an attesting witness".
Relevant paragraph 8 of the said judgment, is reproduced, as under:-
"8. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words :-
"Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 52 Mad. 123. direction of the executant, or has ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 27 ( 2016:HHC:10999 ) received from the executant a personal acknowledgment of hissignature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall .
have been present it the same time and no particular form of attestation shall be necessary." It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness. to a fact. Briefly put, the essential conditions of a valid attestation under s. 3 are :
(1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness."
(Self-emphasis supplied)
38. The learned trial Court has wrongly held that defendants are neither the heirs of the testator nor they are claiming his estate, in his property, as defendant No. 1 is the real brother of the testator, ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 28 ( 2016:HHC:10999 ) who died intestate. When, the suit has been filed by the plaintiffs, on the basis of Will, then, the defendants have every right to assail the Will in .
question, as they have taken the plea of irrevocable license, over the portion of the house in question.
Even otherwise, the plaintiffs have set up their claim over the house in question, on the basis of Will and sought possession from the defendants.
39. Interestingly, while upholding the Will Ext.
PW3/A as genuine, the learned trial Court has simply held that DW-1 Uma Dutt has not uttered a single word against the Will, in his statement. The plaintiffs have to stand upon their legs, and they cannot take benefits of weakness of defense.
40. The learned First Appellate Court has discussed the evidence of PW-3, in piecemeal and the material deposition, made by this witness, qua the fact that he has signed the document, Ext.
PW3/A, as identifier of Sh. Babu Ram, has not been considered by the learned trial Court. As stated ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 29 ( 2016:HHC:10999 ) above, the evidence of a witness cannot be considered in piecemeal, as evidence of PW-3, read with the endorsement Ext. PW4/A, makes out a .
case, which is sufficient to take out the deposition of PW-3, from the purview of being the 'attesting witness'. As such, the findings of the learned trial Court, as well as, the learned First Appellate Court, to the considered opinion of this Court, fall within the definition of 'perverse findings'.
41. Another reason, upon which, the findings can be said to be perverse, is that neither the learned trial Court nor the learned First Appellate Court, have bothered to mention the relationship of the parties inter se. Defendant No. 1 is not the stranger, but, the real brother of testator. Moreover, the relief has been sought against Uma Dutt, defendant No.
1.
42. In view of the above, document, Ext. PW3/A has not been proved as per the law. As such, ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 30 ( 2016:HHC:10999 ) substantial question of law No. 1 is decided in favour of the defendants, and against the plaintiffs.
43. So far as, substantial questions of law Nos. 2, .
is concerned, by way of document, Ext. D-1, defendants have not obtained the possession of the portion of the house in question, as such, they are not entitled to get the relief of Section 53-A of the Transfer of Property Act.
44. The Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi & anr. Vs. Pralhad Bhairoba Suryavanshi (dead) by LRs and others, reported in (2002) 3 Supreme Court Cases 676, has discussed the provisions of Section 53-A of the Transfer of Property Act. Relevant paragraphs 15 to 17 are reproduced as under:
"15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 31 ( 2016:HHC:10999 ) required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a .
transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired.
16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
17. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 32 ( 2016:HHC:10999 ) though a suit for specific performance of a contract has barred by limitation.
45. The Hon'ble Supreme Court in FGP Limited versus Saleh Hooseini Doctor & anr., .
reported in (2009) 10 Supreme Court Cases 223, has again elaborately discussed the ingredients of Section 53-A of the Transfer of Property Act.
Relevant paragraphs 23 and 24 are reproduced as under:
r to "23. The submission by the appellant's counsel on part performance of the contract under Section 53-A of the Transfer of Property Act also cannot be accepted. Section 53-A of the Transfer of Property Act is based upon the equitable doctrine of part performance in English Law. Initially Section 53-A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various Courts in India.
24. Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are:-
(1) a contract to transfer immovable property;::: Downloaded on - 24/08/2024 20:29:32 :::CIS
33 ( 2016:HHC:10999 ) (2) the transfer should be for consideration;
(3) the contract must be in writing;
.
(4) it should be signed by or on behalf of the transferor;
(5) the terms of the contract can be ascertained with reasonable certainty from the writing;
(6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession; r (7) such taking of or continuance in possession should be in part performance of the contract;
(8) the transferee should do some act in furtherance of the contract; and (9) he should have performed, or be willing to perform, his part of the contract.
46. As such, in view of the decisions of the Hon'ble Supreme Court in Shrimant Shamrao Suryavanshi and FGP Limited's cases (supra), the substantial question of law No. 2 is decided against the defendants.
::: Downloaded on - 24/08/2024 20:29:32 :::CIS34 ( 2016:HHC:10999 )
47. In view of the decision of this Court on substantial questions of law No. 1 and 2, substantial questions of law No. 3 and 4 became redundant.
.
48. In view of above, the present appeal deserves to be allowed by setting aside the judgments and decrees, passed by the Courts below, and the suit of the plaintiffs is ordered to be dismissed, as the plaintiffs have failed to prove the document Ext. PW3/A, as consciously executed document by the testator, with his sound and disposing state of mind.
49. In view of the aforesaid discussions and observations, succession of Shri Babu Ram is ordered to be devolved, as per Section 8 of the Hindu Succession Act.
50. No other point has been urged or argued.
51. In view of above, the appeal is allowed in above terms and the judgments and decrees, passed ::: Downloaded on - 24/08/2024 20:29:32 :::CIS 35 ( 2016:HHC:10999 ) by both the Courts below, are set aside and the suit of the plaintiffs is dismissed.
52. Decree-sheet be prepared accordingly.
.
53. The pending application(s), if any, are also disposed of.
54. Record be sent down.
(Virender Singh)
Judge
24.8.2024
(Kalpana) r
::: Downloaded on - 24/08/2024 20:29:32 :::CIS