Himachal Pradesh High Court
Mathru(Deceased) Through Her L.Rs. ... vs Rangia(Deceased) Through His L.Rs on 6 December, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA R.S.A. No. 213 of 2004 Reserved on: 09.11.2016 Date of decision: 06.12.2016.
.
_____________________________________________________________ Mathru(deceased) through her L.Rs. Sahil. & others.
.....Appellants Versus Rangia(deceased) through his L.Rs.
Smt. Hardei & others.
of .....Respondents ______________________________________________________________ Coram:
rt The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
______________________________________________________________ For the appellants: Mr. Rajnish K. Lall, Advocate.
For the respondents: Mr. Rajiv Jiwan, Advocate, for respondent No.1.
Respondent No.3 ex parte.
Chander Bhusan Barowalia, Judge.
The present regular second appeal is maintained by the appellants against the judgment and decree dated 24.2.2004, passed by the learned District Judge, Bilaspur, H.P., in Civil Appeal No.63 of 1993, whereby the learned Appellate Court reversed the judgment and decree, dated 30.4.1993, passed by the learned trial Court in Civil Suit No.48/1 of 1989, with the prayer to set 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 2aside the impugned judgment and decree, passed by the learned Appellate Court and the suit of the plaintiff.
2. Briefly stating the facts giving rise to the .
present appeal are that the deceased appellant/plaintiff Mathru (hereinafter called as the 'plaintiff'') instituted a civil suit for declaration against respondent No.1, Rangia (deceased) (hereinafter to be referred as the 'defendant') on of the allegations that Jiunu son of Kesru had been owner of land described in Khewat No.20, Khatoni No.23, Khasra rt No.75, 76, measuring 15.7 Bighas, situated in revenue estate Dhaliar, Pargna Rattanpur, Tehsil Sadar, District Bilaspur, H.P. It has been alleged that after the death of Jiunu, the land in question devolved on his wife, namely Dwarku. The plaintiff, Mathru (deceased) was wife of Santu son of Sardaru, whereas Santu was nephew of Jiunu.
It has been averred that Sardaru and Jiunu were brothers.
It has also been alleged that after the death of Dwarku, the suit land had devolved on Santu, who was in sound disposing state of mind and body on 4.9.1980 had executed the Will of his estate, including the suit land in favour of the plaintiff. Santu died on 14.11.1981 and after his death, the plaintiff, on the basis of 'Will', became owner of the suit ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 3 land and after the death of Dwarku, Mutation No.97 was sanctioned in favour of Santu on 13.6.1980. The appellant/plaintiff had filed an appeal against the .
attestation of Mutation No.97, dated 13.6.1980, before the Sub Divisional Collector and the Sub Divisional Collector had set-aside the said mutation. He also directed the Naib Tehsildar to decide the mutation afresh. It has been averred of that the Naib Tehsildar un-authorisedly and illegally had attested the mutation in favour of the appellant/ plaintiff rt and the defendant had filed an appeal before the Sub Divisional Collector, who remanded the matter to the Naib Tehsildar and Naib Tehsildar again attested the Mutation No.105 and 106 in favour of the appellant. The plaintiff instituted an appeal, but the Sub-Divisional Collector, vide order dated 30.9.1988, dismissed the appeal. It has been alleged that after the death of Santu, defendant No.1 Rangia (deceased) constructed a house and a cow shed on the suit land. The plaintiff deposed that Dwarku had not executed any Will in favour of defendant No.1. The said Will was stated to be forged so as to rob the plaintiff of her estate. The plaintiffs Nos. 2 to 4 and Tulsi Ram were also the legal heirs of Santu. They had admitted the due ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 4 execution of the Will by Santu, dated 4.9.1980, in favour of the plaintiff. They claimed the ownership and possession of the suit land on account of her relationship with Dwarku.
.
3. The respondent/Defendant No.1 had resisted the suit land on the ground of maintainability, estoppel, for want of cause of action and locus-standi in preliminary objections. It has also been averred that the of appellant/plaintiff No.1 was not the legally wedded wife of Santu. It has been alleged that Santu executed his last 'Will' rt in favour of Dwarku on the basis of which, mutation was attested in her name. Thereafter, Dwarku executed a 'Will' in favour of appellant No.1 (deceased) and after detailed inquiry, the Assistant Collector 2nd Grade, attested the mutation in his name. The appellant/plaintiff has no right in the suit land and Santu never executed any 'Will' in favour of the appellant/plaintiff nor there was any occasion for him to execute a 'Will' in her favour. In a 'Will', which was executed on 31.5.1975, by Santu, it was mentioned that the appellant Mathru was not residing in his house for the last 14 years and not maintaining him in any way. It has also been alleged that after his death, Dwarku became the owner of the suit land and after her death, the defendant ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 5 became the owner of the said land on the basis of a 'Will', which was executed in his favour by said Dwarku. Mutation was attested on the basis of 'Will' executed on 04.2.1979. It .
has been alleged that the suit land was never inherited by Jiunu from Santu. In fact, it was inherited by Dwarku from Santu. It has also been averred that finally the mutation was attested in the name of the defendant by the Assistant of Collector 2nd Grade and the order was confirmed in an appeal by the Collector, Sub Division, Sadar, on 30.9.1988, rt and the same has become final, as it was not challenged in any higher Court. It was also admitted that a house was constructed on the suit land.
4. On the pleadings of the parties, the trial Court framed the following issues:
"1. Whether Shri Santu, deceased jaws the owner in possession of the land in dispute? OPP.
2. Whether Shri Santu, deceased made a valid 'Will' in favour of the plaintiff ?
OPP.
3. Whether the plaintiff is entitled for a decree of possession by demolishing the house ? OPP.
4. Whether the suit is estopped to deny the title of the plaintiff on account of the admission, conduct and commission of the defendant No.1? OPP.::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 6
5. Whether Shri Santu made a valid 'Will' in favour of Smt. Dwarku, deceased? OPD.
6. Whether Smt. Dwarku, deceased made a valid 'Will' in favour of defendant No.1? OPD.
.
7. Whether the plaintiff has no right to file the present suit as she is not widow of Shri Santu, deceased? OPD.
8. Whether the plaintiff has no cause of action? OPD.
9. Whether the suit is not maintainable in of the present form? OPD.
10. Whether Smt. Gulabi is the legally rt wedded wife of Shri Santu and the plaintiff has no right to file the suit ? OPD.
11. Whether the plaintiff is estopped from filing the present suit of her act, conduct, omission and deeds? OPD.
12. Whether the orders of the Revenue Officers in mutation proceedings cannot be challenged in the Civil Court and have become final? OPD.
13. Relief."
5. The learned trial Court decided Issues No.1 to 3 in favour of the appellant/ plaintiff and Issues No.4 to 12 in favour of the defendants/respondents and decreed the suit.
6. Feeling aggrieved and dissatisfied by the judgment and decree passed by the learned trial Court, the ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 7 plaintiff filed an appeal before the learned lower Appellate Court. Learned lower Appellate Court allowed the appeal in favour of the defendants with costs. Hence, the present .
appeal, which was admitted on the following substantial question of law:- .
"1. Whether the findings recorded by the learned first appellate Court are dehors the evidence on record regarding the validity of of the Will Ex.DA?"
7. I have heard the learned counsel for the parties rt and have also gone through the record of the case.
8. Learned counsel for the appellants has argued that the lower Appellate Court has failed to take into consideration the fact that the Will, Ext.DA was not proved by the defendants, as per the law and the defendants have taken the contradictory plea of tenancy and one more Will in his favour and the judgment passed by the learned Appellate Court is liable to be set-aside. He has further argued that the Will was prepared after the death of the Testator and to cover up the facts, the cuttings were made in the register.
9. On the other hand, the learned counsel appearing for the respondents, has argued that the Will ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 8 was prepared by the deceased in his sound state of mind and it was witnessed by the respectable persons and the same was also proved, as per the law. So, the lower .
Appellate Court has rightly relied upon the Will Ext.DA. He has further argued that the death of Dwarku was taken place on 22.2.1979 and the death was registered on 23.2.1979 immediately thereafter.
of
10. To appreciate the arguments of the learned counsel for the parties I have gone through the record of the rt case, in detail.
11. As far as pedigree table on the basis of pleadings of the parties is prepared as under:
Keshru Sardaru (Son) Jiunu (Son) Santu (Son) Dwarku (wife) Mathru (wife). Dwarku executed the Will However, inherited Santu in the name of defendant No.1, on the basis of Will. her nephew.
12. From the above relationship, it is clear that Mathru inherited Santu also on the basis of Will that may ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 9 be for the reasons that Santu might be having some other legal heir(s), but that is not matter in dispute. As far as defendant No.1 is concerned, he inherited his Aunt Dwarku .
also on the basis of Will. Now in case the Will of Dwarku made in favour of defendant No.1 (nephew) is held invalid, as per the case of the plaintiff, the property of Dwarku, Will devolve upon Mathru back, as Santu was the nephew of of Jiunu and Santu, had made Will in favour of Mathru.
13. The close scrutiny of the oral as well as rt documentary evidence placed on record, reveals that Dwarku was in sound disposing state of mind and body when she executed her last and final Will Ext.DA on 4.2.1979, in favour of defendant No.1. DW-4, Nikku Ram and DW-5, Tulsi Ram during their cross-examination, had clearly stated that Dwarku had died after 20-23-25 days of the execution of the Will Ext.DA. It has also come on the record that after the death of Smt. Dwarku, defendant No.1 had applied for attestation of mutation of the estate of Dwarku, in his favour, on the basis of the Will dated 4.2.1979. Santu had pressed for attestation of the mutation of the estate of Dwarku in his favour on the ground of his relationship with the deceased. The Assistant Collector 2nd ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 10 Grade had attested the mutation of the estate of Dwarku in favour of Santu. On perusal of Ext.P-2, it was revealed that Santu had pronounced the Will as forged. It has been .
contended that he had stated before the Mutation Officer that the Will had been prepared after the death of Dwarku.
Santu had nowhere stated before the Mutation Officer/ Assistant Collector 2nd Grade, as to when Dwarku had died.
of Mutation No.97 (Ex.P2) of the estate of Dwarku, which was attested in favour of Santu, as per the death certificate, rt produced before the A.C. 2nd Grade, Dwarku died on 22.1.1979. Defendant No.1 had also represented him through sheer inadvertence in death certificate, date of death of Dwarku, which was recorded as 22.1.1979, whereas she died on 22.2.1979. Although, defendant No.1 had produced evidence of execution of the Will by Dwarku in his favour on 4.2.1979, yet the Mutation Officer had proceeded to attest the mutation No.97 in favour of Santu. It was also alleged that the parties were having litigation for the last about 10 years prior to institution of Civil Suit 48/1 of 1989 in the lower Court. Initially, the plaintiff, as also her predecessor-in-interest, Santu, had no where stated before the Revenue Officer that Dwarku had died on 22.1.1979.
::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 11Capital was sought to be made of error of date of death of Dwarku recorded in the Death Register. The plaintiff had nowhere stated,as to when Dwarku had died and question .
of succession of her estate had arisen for consideration.
14. Point arising for determination of the dispute between the parties, was whether Dwarku had executed a valid Will of her estate on 4.2.1979,,in favour of defendant of No.1 and in case she had done so, the suit of the plaintiff was bound to fail. DW-2 Rangia (defendant No.1) had stated rt that he had been putting up with Jiunu and Dwarku from the time when he was about 10-12 years old. He had been rendering services to Dwarku and her husband. Due to love and affection, Dwarku executed her Will Ex.DA, in farour of defendant No.1, on 4.2.1979, and, thereafter, she died on 22.2.1979. DW-3 Jeet Ram had stated that he had scribed the Will on 4.2.1979 under the strict instructions of Dwarku and he explained the contents of Will to Dwarku, who admitted the same to be correct and had marked her thumb in the presence of DW4 Nikku, DW5, Tulsi Ram, Santu son of Beeru and Shankar. DW4 and DW5,were two other witnesses, who attested the Will in the presence of Dwarku.
It has been alleged that Tulsi Ram was the Pradhan of the ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 12 Gram Panchayat concerned on 4.2.1979 and he attested the Will after reading the same to the testatrix Dwarku. DW5 had endorsed his attestation on the Will. It has been .
averred that defendant No.1 alongwith three other witness was given opportunity for being cross-examined, but in his cross-examination, he could not depose anything favourable from defendant No.1 and his three witnesses. The Will in of question, is alleged to have been rejected by the learned lower Civil Court on the ground that Dwarku had died on rt 22.1.1979, hence, the Will Ext.DA, dated 4.2.1979, had been forged after the death of Dwarku. The Will had not been scribed by a licensed Deed Writer and the same was treated a suspicious circumstance. It has been alleged that at one point of time, defendant No.1 had claimed non-occupancy tenancy and possession of the suit land. These circumstances had rendered the Will, a suspicious document. Defendant No.1 had also failed to repel the suspicious circumstances surrounding the execution of the Will. Hence, it was initially recorded in the record that Dwarku died on 22.1.1979, but lateron, it was recorded as 22.2.1979. It has come on record that the death of Dwarku was reported by Nihalu Ram on 23.2.1979, immediately after her death. So, the evidence shows that Dwarku had died on 22.2.1979, which is ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 13 also clear from the record and in the natural course, there can be a cutting in the record and that cutting does not go to show that the cutting is wrong, as no evidence or pleading has come on behalf of the plaintiff that Dwarku had died on 22.1.1979 .
and not on 23.2.1979. It has also come on record that Dwarku got executed the Will in question in the presence of witnesses and it was duly scribed. There is no suspicious circumstances surrounding the execution of the Will Ext.DA by Dwarku in of favour of the defendant No.1(deceased). There are also reasons to show that Dwarku was being looked after by her nephew, the beneficiary, now defendant No.1 (deceased) and he was also rt dealing the land of Dwarku.
15. The defendant No.1 (deceased) had also claimed tenancy of the suit land. After bare perusal of the evidence on record, it reveals that defendant No.1 (deceased) had been in possession of the suit land. Dwarku, in her life time, had not disputed the possession of defendant No.1 (deceased) over the suit land. Defendant No.1(deceased) was stated to be the sole legatee under registered Will of Jiunu, therefore, there was every possibility to enter the tenancy of the suit land having been incorporated in favour of defendant No.1 (deceased) with the consent of Dwarku, could not at all be ruled out. There was no evidence on record to establish that defendant No.1 (deceased) had been carrying on any dispute with Dwarku or her husband.
::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 1416. The evidence on record also reveals that Dwarku had been 85 years of age at the time of her death. Her husband had died in the year 1967. Jiunu, who was the husband of Dwarku, was about 70-80 years at the time of his .
death. So, admittedly the testatrix and her husband required support and maintenance. No where is the case of the plaintiff that her husband or she herself had been looking after and maintaining Dwarku or her husband. The plaintiff nowhere of stated that her husband or she herself had looked after Dwarku or her husband at any stage. Defendant No.1, Rangia had claimed possession of the suit land from the time of Jiunu.
rt When defendant No.1 had been looking after and maintaining Dwarku and her husband for the last 10-20 years, there had been this reason also when Dwarku had executed her last and final Will of her estate in his favour. In the books, maintained by the Gram Panchayat, Ex.D-4, defendant No.1 from time to time of his childhood, is stated to be residing with the testatrix and her husband. As against this, the plaintiff (Mathru) and her husband had been separate in mess and worship from Dwarku and her husband, as was evident from the books, Ext.P-5, of the Gram Panchayat and electrol rolls. It is no where stated that the Will dated 4.2.1979, executed by Dwarku, in favour of Defendant No.1, was un-natural. The plaintiff had also examined her brother in support of her suit.
PW3, Ghunger Ram, who was the brother of the plaintiff, had ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 15 no where stated anything so as to render the Will, dated 4.2.1979, a suspicious document. The plaintiff appeared to be claiming ownership and possession of the suit land, because of the sole relationship of her husband Santu with Dwarku and .
her husband. Proceedings under Sections 107/151 Cr.P.C.
between DW-3, Jeet Ram and the daughter of the plaintiff, in no way, rendered the evidence of DW3 unreliable. Perusal of the evidence on record also reveals that defendant No.1 had been of able to prove and establish that Dwarku was in sound disposing state of mind on 4.2.1979 and had executed her last and final Will of her estate in his favour. After the death of rt Dwarku, on 22.2.1979, defendant No.1 had been owner-in-
possession of the suit land. Defendant No.1 had been rightly entered owner in possession of the suit land vide Mutation No.105 and 106 of revenue estate Dhalia. So, the learned Sub Divisional Collector has rightly dismissed the appeal of the plaintiff on 30.9.1988. Therefore, on the basis of Will, dated 4.2.1979, Ext.DA, the plaintiff or her husband could not be treated, as legal heirs of Dwarku.
17. The net result of the above discussion is that the findings, as recorded by the learned lower Appellate Court, are just, reasoned and after appreciating the evidence on record to its true perspective, as the defendant has proved the Will Ext.
DA, without any suspicion and other circumstances also shows that the Will Ext. DA was duly executed by Dwarku in favour of ::: Downloaded on - 15/04/2017 21:41:30 :::HCHP 16 her nephew (defendant No.1), who was looking after Dwarku and also dealing her land. So, the question of law is answered holding that findings recorded by the learned first Appellat Court are as per the law and the validity of Will Ext.DA is .
correctly held by the learned lower Appellate Court.
18. Resultantly, the present appeal is without any merit, which deserves dismissal and is accordingly dismissed.
However, in the peculiar facts and circumstances of this case, of there is no orders as to costs. Pending application(s) if any, also stands disposed of.
rt (Chander Bhusan Barowalia)
Judge
December 06, 2016
(M. gandhi)
::: Downloaded on - 15/04/2017 21:41:30 :::HCHP