Punjab-Haryana High Court
Bisheshar Nath And Anr. vs Shanti Devi (Dead) Through Lrs. on 28 April, 2004
Equivalent citations: (2005)139PLR67
Author: V.M. Jain
Bench: V.M. Jain
JUDGMENT V.M. Jain, J.
1. This Regular Second Appeal has been filed by some of the defendants against the judgment and decree dated 6.9.1983 passed by the Additional District Judge, Sirsa vide which the appeal filed by the plaintiff was accepted, the judgment and decree dated 31.8.1981 passed by the Trial Court were set aside and the suit of the plaintiff was decreed whereas the cross appeal filed by the defendant was dismissed.
2. The facts in brief are that Smt. Shanti Devi widow of Bela Ram had filed a suit for declaration against the defendants to the effect that by virtue of the Will dated 4.8.1977 executed by Bela Ram deceased, the plaintiff was the owner in possession of 91 kanals 19 marlas of land and house Nos. 87,88 (4 marlas each) and one double storeyed shop (hotel) near bus stand Hansi and the entries made in the revenue record and the Municipal records to the contrary were liable to be corrected and consequently decree for permanent injunction was sought restraining the defendants from interfering in the title and possession of the plaintiff over the said properties. It was alleged in the plaint that the plaintiff was the widow whereas the defendants were the sons and daughters of Bela Ram deceased and that said Bela Ram had died on 5.2.1978. It was alleged that Bela Ram deceased had executed a Will dated 4.8.1977 during his lifetime to the effect that after his death, the suit property shall be inherited by the plaintiff exclusively as sole and full owner. It was alleged that the suit property was earlier in possession of Bela Ram deceased and after his death by virtue of the said Will the suit property was in possession of the plaintiff as sole and exclusive owner. It was alleged that the defendants fictitiously and cleverly got their names entered as co-sharers in mutation No. 399 dated 10.1.1979 in the absence of the plaintiff in respect of the agricultural land. It was alleged that the said mutation was illegal and ineffective on the rights of the plaintiff and the same was liable to be set aside and the revenue entries were liable to be corrected accordingly. It was alleged that the defendants were threatening to alienate the suit property and to interfere in the lawful possession of the plaintiff thereon. It was accordingly prayed that in view of the aforesaid Will dated 4.8.1977 executed by Bela Ram deceased in favour of the plaintiff, the suit be decreed as aforesaid.
3. The suit was contested by defendant Nos. 1 and 2, who filed a joint written statement alleging therein that the Will in question was forged and fictitious. It was alleged that house Nos. 87, 88 belonged to defendant Nos. 1 to 2, whereas the double storeyed shop belonged to defendant Nos. 2 and 3. It was alleged that the plot for the said shop was purchased vide sale deed dated 20.9.1963. It was alleged that Bela Ram deceased could not have willed away the aforesaid properties. With regard to the agricultural land, it was alleged that the same was the ancestral property qua such Bela Ram deceased and defendant Nos. 1 to 3 and as such Bela Ram deceased had no authority to execute the Will in respect of the said land. It was alleged that the land was original allotted to Bhagwan Dass in lieu of the ancestral land left by him in Pakistan and there was a dispute between Bela Ram and Bhagwan Dass regarding the share in the ancestral property including the land in dispute, who gave his award and the said award was made .the Rule of the Court vide judgment dated 8.1.1960 passed by Sub Judge, Hisar and in this way Bela Ram became the owner of the land in dispute, which he held as a Karta. It was alleged that the prayer of the plaintiff for getting the said Will registered after the death of Bela Ram was rejected by the Sub Registrar. It was further alleged that the petition in respect of the agricultural land was sanctioned in the presence of the plaintiff and the plaintiff had waived her rights in the agricultural land and was now estopped from filing the present suit. It was alleged that in fact, the plaintiff and the defendants were in joint possession of the suit land in view of the mutation, which was sanctioned on 10.1.1979. Defendants Nos. 3 to 5 filed a joint admission written statement, admitting the claim of the plaintiff.
4. On the pleadings of the parties, the learned Trial Court framed various issues. Both the sides led evidence in respect of their respective contentions. After hearing both sides and perusing the record, the learned Trial Court decreed the suit of the plaintiff for declaration to the effect that the Will dated 4.8.1977 executed by Bela Ram was valid only to the extent of Beta Ram's own share in the agricultural land. However, with regard to the remaining agricultural land and other properties in dispute, it was held that the Will was invalid and in respect of the same the suit was dismissed. Aggrieved against the judgment and decree passed by the trial Court, both sides filed appeals. Both the appeals one filed by Smt. Shanti Devi plaintiff and the other filed by defendant Nos. 1 and 2, namely, Bisheshar Nath and Om Parkash, were decided by the learned Additional District Judge by a single judgment,whereby the appeal filed by the plaintiff was accepted while the appeal of the defendants was dismissed and the suit of the plaintiff was decreed in toto. Aggrieved against the same, defendant No.l and 2 have filed the present appeal in this Court.
5. I have heard the learned counsel for the parties and have gone through the record carefully.
6. As referred to above, there are three properties which are the properties in question. Firs., is agricultural land measuring 91 kanals 19 marlas, the second is house Nos. 87, 158 (four marlas each) and the third is a double storeyed shop (hotel). AH the properties have been mentioned in the Will dated 4.8.1977 executed by Bela Ram in favour of his wife Smt. Shanti Devi. So far as the due execution of the aforesaid Will is concerned, both the Courts below found it as a fact that Bela Ram deceased had executed a valid Will in favour of Smt. Shanti Devi, inasmuch as the execution of the said Will by Beia Ram in favour of Smt. Shanti Devi was duly proved on the record. In order to prove the due execution of the said Will, the plaintiff had examined PW3 Moti Ram, Scribe, besides PW4 Ram Swaroop attesting witnesses. Besides that the plaintiffs also examined PW2 Dushyant son of Mehta Dufga Dass, another attesting witness, who identified the signatures of his father on the Will Exhibit P1. When Bisheshar Nath defendant No. 1. appeared in the witness box as DW1, he also stated that the signatures on the Will Exhibit P1 appeared to be of his father. After considering the entire evidence led by the parties, it was found by the trial Court that the due execution of he Will was fully proved on the record. When the matter came up for hearing before the learned Additional District Judge, it was found by the learned Additional District Judge that there were no suspicious circumstances in respect of the Will in question. It was found that the Will was executed in favour of the wife and a reference was made that he had spent sufficient money on his sons and had already given sufficient money to his daughters. It was also found that merely because the Will was scribed at Bhiwani, whereas the property was situated at Hansi, could not be taken as a ground to doubt the genuineness of the Will. Judicial notice can be taken of the fact that Hansi is only at a distance of 35/36 kilometers from Bhiwani. It was found that if the testator was at Bhiwani at the relevant time and wanted to make a Will, there was nothing suspicious about it even though the properties were situated at Hansi and also in District Sirsa. It was also found that there was nothing on the record to show that the testator was not in sound disposing mind or was suffering from any decease for which he was not in a position to execute a Will, especially when Ram Swaroop and Moti Ram PWs had categorically stated that after the Will was scribed, it was read over to the deceased and he had signed the same in correctness thereof, which would clearly show that he was in a sound disposing mind. It was also found that merely because, the testator in the Will had described all the above mentioned properties as his own while executing the said Will, also could not be taken as a ground to hold that there were suspicious circumstances. In my opinion, both the Courts below had given valid reasons for coming to the conclusion that the due execution of the Will in question was fully proved on the record and there is no scope for interference by this Court in respect of this finding of the Courts below. This is especially so when the learned counsel appearing for the defendants-appellants could not refer to any evidence available on the record to show that the finding in this regard was contrary to the evidence or was against law. In fact, there is no misreading of evidence in this regard nor any material evidence has been omitted while giving this finding, which in my opinion, is a finding of fact. Accordingly, I uphold the finding of the Courts below on issue No. 1.
7. So far as the agricultural land measuring 91 kanals 19 marlas is concerned, the learned counsel appearing for the defendant-appellants submitted before me that in the previous litigation between Bela Ram and his brother Bhagwana Dass, the Arbitrator had given an award, which later on was made the Rule of the Court and in the said award, the Arbitrator had described the parties to be members of joint Hindu family and as such the agricultural land shall be presumed to be the joint Hindu family property of Bela Ram and his sons. However, I find no force in this submission of the learned counsel for the defendant-appellants. In the award given by the Arbitrator, it was only mentioned that the parties were members of Hindu undivided family in Pakistan whereas after coming to India, they were living separately. However, in my opinion, from this reference made by the Arbitrator in his award, which later on became the Rule of the Court, at the most it could be said that Bela Ram and his brother Bhagwan Dass were members of joint Hindu family in Pakistan. However, no presumption could be raised that the properties owned by Bela Ram and Bhagwan Dass were joint Hindu family properties of the parties. This is especially so when the defendants had miserably failed to produce any evidence to show that the property in question was allotted in lieu of the land held by Bela Ram and/or that the said land was the ancestral property in the hands of Bela Ram or was joint Hindu family property of Bela Ram-and his sons. In the absence of any such material on the record, it could not be said that the suit property was the ancestral property of Bela Ram and his sons nor could it be said that on that account Bela Ram was incompetent to execute a valid Will in respect of the agricultural land. In fact, the learned counsel appearing for the defendant-appellants submitted before me that except the aforementioned reference in the award given by the Arbitrator that Bela Ram and his brother were members of undivided joint Hindu family, there was no other material on the record to show that the property in question was, in fact, owned by the joint Hindu family or was ancestral in the hands of Bela Ram.
8. In view of the above, I uphold the finding of the learned Additional District Judge regarding agricultural land.
9. It was then submitted before me by the learned counsel for the defendant-appellants that the learned Additional District Judge had erred in law in holding that the residential house bearing Nos. 87, 88 (four marlas each) were owned by Bela Ram deceased. It was submitted that in fact, from the copies of the house tax assessment register, it was proved on the record that the said house was owned by all the three sons of Bela Ram deceased and as such Bela Ram deceased was not competent to execute the Will in question in respect of the said house. However, I find no force in this submission of the learned counsel for the defendant-appellants. As referred to above, the house in question has been described as house Nos. 87, 88 (four marlas each). It had been alleged in the plaint that the said houses were situated in Multan Nagar, Hansi. By virtue of the Will Exhibit PI, Bela Ram deceased had given said houses to his wife Smt. Shanti Devi. When Smt. Shanti Devi plaintiff appeared in the witness box as PW1, she stated that the entire property detailed in the Will was owned by her virtue of the said Will. During cross-examination, she denied the suggestion that the houses bearing Nos. 87, 88, Multan Nagar, Hansi were owned by Bisheshar Nath, Om Parkash and Gordhan Dass defendants. She stated that in fact, the said houses were owned by her husband. She was recalled and again appeared in the witness box. She stated that in Multan Nagar Hansi, they had two houses bearing Nos. 86 and 88 and that in exchange of House Nos. 86, they had taken house No. 87 from Shiv Ram and now they were owner of the house bearing Nos. 87 and 88. She stated that on both these plots, her husband had raised the construction after he migrated from Pakistan. She further stated that she was in possession of the shop and the house. During cross-examination, she stated that her husband Bela Ram was employed in the Municipal Committee. She admitted that the house tax in respect of house Nos. 87 and 88 used to come in the name of Bisheshar Nath but stated that he. never paid the house tax and even after the death of Bela Ram, the house tax used to come in the name of Bisheshar Nath, but he never paid the house tax. Gordhan Dass defendant No. 3 and son of the plaintiff and Bela Ram had appeared in the witness box as PW9. He deposed that after migration from Pakistan, two nouses were allotted to his father Bela Ram as a displaced person. He further stated that thereafter his father got house No. 86 (which was allotted to Bela Ram) exchanged with said Shiv Ram for house No. 87 vide exchange deed Exhibit PB. During cross-examination on behalf of the contesting defendants, he stated that his father was employed in the Hansi Municipal Committee as Field Octroi Inspector. He admitted that the house tax notices in respect of House Nos. 87, 88 used to come in the name of Bisheshar Nath, Om Parkash and his name i.e. Gordhan. He admitted the suggestion given on behalf of the defendants that in the said house, his mother, he and Om Parkash were residing while Bisheshar was employed at Hisar and was living away for the last 20-22 years. He stated that he and Om Parkash were residing in the said house with the consent of their mother and that from his childhood, he was residing in the said house while Om Parkash, who was earlier in service elsewhere was residing in this house for the last 5-6 years.
10. Bisheshar Nath defendant appeared in the witness box as DW8 and deposed that house Nos. 87, 88 were recorded in the Municipal record in his name and in the name of Om Parkash and Gordhan Dass for the last about 25 years. He stated that Bela Ram was not the owner of the said house. During cross-examination, he admitted that house Nos. 87, 88 were allotted in Hansi after the partition of the country and this allotment was in lieu of the claim. He also stated that the same were allotted in the name of their father. He also stated that one house bearing No. 86 was allotted to Shiv Ram. He admitted that the property, which was exchanged with Shiv Ram was exchanged by their father and stated that it was an immediate exchange. He stated that Om Parkash was aged 35-36 years while Gordhan was aged 32-33 years and that partition of the country had taken place about 33-34 years back. DW2 Charan Dass, House Tax Clerk had produced copies of the house tax assessment register Exhibits D5 and D6.
11. Exhibit P16 is the agreement between the Governor of the State of Punjab .on one hand and Bela Ram deceased on the other hand in respect of tenement Nos. 86 and 88 situated in Hansi, whereby the Governor of Punjab had agreed to sell the said tenement Nos. 86 and 88 to Bela Ram and Bela Ram had agreed to purchase the same. Exhibit P17 is a similar agreement between Governor of Punjab on one hand and Bhoja Ram (father of Shiv Ram) on the other hand in respect of tenement No. 87, Exhibit PB in the exchange deed dated 7.8.1954 vide which Bela Ram owner of house Nos. 86 and 88 had exchanged house No. 86 owned by Shiv Ram and by virtue of the said exchange deed Bela Ram had become the owner of house Nos. 87 and 88. PW6 Hardial had proved the execution of the exchange deed Exhibit PB. He deposed that he was attesting witness of the said exchange deed, which was scribed by Khuman Chand deed writer at the asking of Bela Ram and Shiv Ram and that both of them in his presence had singed after it was read over to them. He stated that by virtue of the said exchange deed, quarter No. 87, which was allotted to Bela Ram stood exchanged and that quarter Nos. 86 came to Shiv Ram while 87 came to Bela Ram and in this manner Bela Ram got quarter Nos. 87, 88 which were side by side. He admitted during cross-examination on behalf of the contesting defendants that he knew Bela Ram before partition and that quarter numbers 86 and 88 were allotted to Bela Ram in lieu of his claim for the property left in Pakistan. He showed his ignorance if Bela Ram had transferred house Nos. 87, 88 in the name of his sons. He stated that he had visited Bela Ram at his house bearing Nos. 87 and 88 during his lifetime and he besides his wife and children used to reside therein. He denied the suggestion that during his lifetime Bela Ram had transferred these houses bearing Nos. 87, 88 in the name of his sons.
12. From the entire evidence referred to above, in my opinion, it stands fully proved on the record that house Nos. 87, 88 were originally owned by Bela Ram which were allotted to him in lieu of his claim for the property left in Pakistan. As referred to above, initially Bela Ram was allotted house Nos. 86 and 88 and later on he exchanged house No. 86 with house No. 87 from Shiv Ram, who was allotted house No. 87. Besides the evidence led by the plaintiff that the house Nos. 87 88 were owned by Bela Ram, even DW8 Bisheshar Nath had admitted that the said houses were originally allotted to their father in lieu of the claim. Furthermore, when PW6 Hardial attesting witness of the exchange deed Exhibit PB appeared in the witness box it was suggested to him during cross-examination that the houses were allotted to Bela Ram in lieu of his claim for the property left in Pakistan, which suggestion was admitted by him as correct. He, however, denied the suggestion that during his lifetime Bela Ram transferred those houses bearing Nos. 87, 88 in the name of his sons. Initially this witness showed his ignorance regarding the transfer of the houses by Bela Ram to his sons but again he denied the suggestion. Even, Gordhan, another son of Bela Ram, had stated that the said houses were allotted to their father. Thus from the evidence led by both the sides, it stands fully proved on the record that house Nos. 86 and 88 were allotted to Bela Ram in lieu of his claim for the property left in Pakistan and later on Bela Ram got house No. 86 exchanged with Shiv Ram in respect of house No. 87 and thus Bela Ram became the owner of house Nos. 87, 88 and this fact is proved from the oral and documentary evidence available on the record. In my opinion, it was for the contesting defendants to prove as to in what manner and at what point of time Bela Ram during his lifetime had transferred house Nos. 87, 88 in favour of his three sons,namely Bisheshar Nath, Om Parkash and Gordhan. Since the contesting defendants had miserably failed to produce any evidence regarding transfer of the house Nos. 87 and 88 by Bela Ram in favour of his sons during his life time, in my opinion, it could not be said that the said house Nos. 87 and 88 were owned by the sons of Bela Ram, merely because in the copies of house tax assessment register Exhibit D3 and D4 and copies of the property tax register Exhibit D13 and D14, Bisheshar Nath, Om Parkash and Gordhan had been recorded as owners of the houses in question (house Nos. 87 and 88) situated in Multan Nagar Colony, Hansi. In my opinion, the learned Additional District Judge, had rightly found that the houses in question bearing Nos. 87, 88 were also owned by Bela Ram deceased at the time of his death and merely on the basis of the entries in the house tax assessment register, it could not be said that the said houses were owned by the sons of Bela Ram. I am further of the opinion that the learned Additional District Judge had rightly ignored the entries in the house tax assessment register and property tax register by virtue of the authority A.I.R. 1936 Lahore 956, Jagan Nath v. Harbans Singh and Ors. while coming to this conclusion.
13. With regard to the commercial property described as one double storeyed shop (hotel), near bus stand Hansi, in my opinion, the learned Additional District Judge, had erred in holding that the said property was also owned by Bela Ram deceased at the time of his death and/or Bela Ram was competent to execute the Will in question in favour of his wife Smt. Shanti Devi in respect of the said property. Exhibit D7 is the copy of the sale deed 20.09.1963 in respect of shop in question. As per the said sale deed, it was sold by Shripat Rai vendor in favour of Om Parkash and Gordhan sons of Bela Ram for Rs. 300/-. Defendant Nos. 1 and 2 in their joint written statement has specifically stated that the plot for the shop was purchased vide sale deed dated 20.09.1963 and that the double storeyed shop belonged to defendant Nos. 2 and 3, namely Om Parkash and Gordhan and that Bela Ram could not have willed away the same. Besides the aforementioned sale deed dated 20.09.1963 copy of which is available on the record as Exhibit D7, copy of house tax assessment register Exhibit D2 is also available on the record showing Om Parkash and Gordhan sons of Bela Ram as owners of the said shop, which has been described as a double storeyed hotel, situated on the Tosham Road. Even the original sale deed dated 20.09.1963 in the names of Om Parkash and Gordhan. DW8 Bisheshar Nath, one of the contesting defendants, specifically deposed that the shop, which has been described in the Will as a hotel, was owned by Om Parkash and Gordhan and the same was purchased in their names in the year, 1963 and that Bela Ram was never the owner of the said shop. During cross-examination, he admitted that the shop was purchased but denied the suggestion that it was purchased in the name of their father. On the other hand, he stated that only the plot of the shop was purchased in the year 1963. He denied the suggestion that their father had purchased the shop in the names of his sons as a Benami. PW9 Gordhan Dass deposed that the plot for the shop was purchased by their father and he had raised the construction thereon. During cross-examination he stated that he did not know whether the plot on which the hotel was constructed was purchased from Shripat Rai. He further admitted that "registry" in respect of the said plot was in his (Gordhan's) name and in the name of Om Parkash. He further stated that it was a benami transaction.
14. From the above evidence led by the parties, in my opinion, it stands fully proved on the record that the plot on which the double storeyed hotel was constructed was purchased by virtue of the sale deed dated 20.09.1963 in the name of Om Parkash defendant Nos. 2 and Gordhan defendant Nos. 3. That being the position, in my opinion, it could not be said that Bela Ram was owner of the said double storeyed hotel. In the ab- sence of any further proof, mere allegation during evidence that in fact, it was purchased by Bela Ram benami in the name of his sons Om Parkash and Gordhan, in my opinion, cannot be accepted in the absence of any further proof, especially when there is no pleading regarding the said transaction being benami. In my opinion, the learned Additional District Judge, had erred in law in holding that the said double storeyed hotel was also owned by Bela Ram or that Bela Ram was competent to Will away the same in favour of his wife Smt. Shanti Devi.
15. From the evidence led by the parties and from the above mentioned discussion, in my opinion, it would be clear that a substantial question of law arises for determination in this appeal with regard to the finding given by the learned District Judge, in respect of the double storeyed to be perverse and just contrary to the oral and documentary evidence available on the record.
16. In view of my detailed discussion above,it would be clear that the double storeyed hotel, which has been described as property No. 3 in the present suit, was not owned by Bela Ram deceased and he could not have executed the Will in question in respect of the said property in favour of his wife Smt. Shanti Devi. The finding of the learned Additional District Judge regarding ownership of the hotel, in my opinion, is not only perverse but is also contrary to the oral and documentary evidence available on the record. Thus, in view of the finding of the Additional District Judge in respect of the double storeyed hotel being perverse and contrary to the evidence available on the record, the above mentioned substantial question of law is decided in favour of the defendant-appellants and it is held that the said finding regarding the said property is perverse and contrary to the evidence. Furthermore, in view of the aforesaid discussion, it is held that Bela Ram could not have executed the Will in respect of the property shown as double storey hotel, as the same was owned by Om Parkash and Gordhan sons of Bela Ram.
17. It may also be noticed here at this stage that during the pendency of the appeal Smt. Shanti Devi plaintiff had expired and defendant No,3 Gordhan (who had filed admission written statement along with defendant Nos. 4 and 5), was declared as her legal representative by virtue of the Will allegedly executed by Smt. Shanti Devi in his favour. Thus, by virtue of the said Will and on the basis thereof having been declared as her legal representative, Gordhan Dass had stepped into the shoes of the plaintiff Smt. Shanti Devi. In this view of the matter, the suit filed by her qua the double storey hotel, can be decreed only to the extent of 1/2 share, inasmuch as, in respect of 1/2 share Gordhan, who is the Legal Representative of Smt. Shanti Devi, was proved to be the owner, whereas in respect of the remaining 1/2 share in the said hotel, defendant-appellant No. 2 Om Parkash was proved to be the owner. With regard to the remaining properties i.e. agricultural land and the house Nos. 87, 88 (4 marlas each) in my opinion, the suit filed by Smt. Shanti Devi had rightly been decreed by the learned Additional District Judge and no fault could be found with the same.
18. For the reasons recorded above the present appeal is partly allowed, the judgment and decree dated 6.9.1983 passed by the Additional District Judge are modified in respect of the property described as double storeyed shop (hotel) situated at bus stand, Hansi and the suit of the plaintiff qua the said property is decreed to the extent of 1/2 share. However, the findings of the learned Additional District Judge, with regard to the other properties i.e. agricultural land measuring 91 Kanals 19 Marias and the houses bearing Nos. 87, 88 (4 marlas each), regarding which the suit was decreed are affirmed. The net result is that the suit filed by Smt. Shanti Devi shall stand decreed in toto except in respect of 1/2 share in the property described as double storeyed shop (hotel), regarding which the suit shall stand dismissed.
In view of the peculiar facts of the present case, the parties are left to bear their own costs.