Himachal Pradesh High Court
___________________________________________________________________ vs Shauji Devi on 7 November, 2016
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 408 of 2008 Decided on: November 7, 2016 ___________________________________________________________________ Vidyadhar ...Appellant .
Versus
Shauji Devi ....Respondent
___________________________________________________________________ Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 ___________________________________________________________________ For the appellant: Mr. G.R. Palsra, Advocate.
of For the respondent: Mr. Vineet Vashishta, Advocate. ___________________________________________________________________ Sandeep Sharma, Judge Instant regular second appeal under section 100 CPC is rt directed against judgment and decree dated 11.4.2008 passed by the Additional District Judge, Mandi camp at Karsog in Civil Appeal No 85 of 2006 affirming judgment and decree dated 17.7.2006, passed by learned Civil Judge (Junior Division) Karsog in Civil Suit No. 41 of 2005, whereby suit for declaration and joint possession by the plaintiff -respondent (hereinafter, 'plaintiff') was decreed and will PW-1/B and Ext. DW-5/A was declared null and void and mutation No. 180 dated 20.3.2005, attested on the basis of aforesaid Will, was set aside.
2. Briefly stated facts as emerge from the record are that plaintiff filed a suit for declaration and joint possession, against the appellant-defendant (hereinafter, 'defendant') to the effect that will 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 21:30:55 :::HCHP 2dated 19.6.2004 executed by late Narsinghu in favour of defendant be declared null and void having no effect on the plaintiff. Plaintiff further averred that mutation No. 180 attested in favour of .
defendant, on the basis of said Will, be also declared null and void and inoperative qua plaintiff and she be declared in joint possession of the suit land with defendant and other co owners. In nutshell, plaintiff claimed that suit land as described in plaint was recorded of in ownership of Narsinghu alongwith other co owners and she being her widow is also entitled to his share alongwith other legal heirs.
rt Plaintiff further contended that during life time of Narsinghu, he executed a Will in favour of defendant depriving her of her share, as a result of which, she was compelled file application under section 125 CrPC in competent court of law against her husband Narsinghu. Matter was compromised in Lok Adalat, whereby Narsinghu furnished undertaking in the Lok Adalat that after his death property would go to his legal heirs and assured the plaintiff that she would be maintained by him in future also. During his life time, Narsinghu cancelled the Will. But on 7.4.2005, plaintiff applied for copy of Will and came to know that false Will dated 19.6.2004 has been executed by defendant in his favour and, on the basis of which, Mutation No. 180 dated 20.3.2005 was attested in favour of defendant showing him to be owner of the suit land.
After death of Narsinghu on 17.11.2004, plaintiff went to Patwari ::: Downloaded on - 15/04/2017 21:30:55 :::HCHP 3 and obtained Jamabandi of suit land, then only she came to know about Mutation No. 180 dated 20.3.2005. Plaintiff claimed that till the death Narsinghu, their relations remained cordial and .
Narsinghu never disclosed with respect to execution of aforesaid Will. Plaintiff, being widow of Narsinghu, claimed that she has right to inherit property in equal share alongwith defendant because she has a pre-existing right for her maintenance. Defendant, despite of repeated requests, refused to admit the claim, as such she was compelled to file suit.
2. rt Defendant resisted the claim of the plaintiff by filing written statement on the grounds of maintainability, non-joinder, mis joinder of necessary parties and cause of action. On merits, defendant stated that there are so many co-sharers of the suit land as per revenue record and plaintiff is not widow of Narsinghu, rather Krishani Devi was legally wedded wife of Narsinghu, out of whose wedlock, he and his sister (Meena Devi) were born. Defendant claimed that Meena Devi was married and residing with her in-laws.
Narsinghu had given undertaking to look after the plaintiff, as she was residing without any relation with Narsinghu but after the decision of the case, plaintiff never resided with Narsingu.
Defendant, several times, went to the house of plaintiff to call her back but she did not come back. Ultimately, the plaintiff solemnised marriage with some other person of Ilaka Kajon, Tehsil Karsog in ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 4 the year 2003 and since then she has been residing with her new husband. Lastly, defendant claimed that since plaintiff did not return to the house of his father Narsinghu, he and his sister Meena .
Devi looked after their late father Narsinghu and due to this love and affection, their father Narsinghu executed Will dated 19.6.2004, bequeathing property/his share in his name and deprived plaintiff of his property. Narsinghu executed the Will at his own volition and of same was genuine. While praying for dismissal of suit, defendant specifically claimed that plaintiff has no right, title or interest over rt the suit land and as such suit deserves to be dismissed. Defendant further claimed that plaintiff is not entitled to inherit the suit property, because same is coparcenary property, and plaintiff is not entitled to inherit the same from their father by way of succession.
Defendant further stated that even if it is proved that suit is not coparcenary property, and Will is not genuine one, in that event, defendant and his sister are legally entitled to inherit the property being legal heirs of late Narsinghu.
3. Learned trial Court settled following issues on 4.8.2005:
"1. Whether the plaintiff is entitled for the decree of declaration to the effect that will executed by late Sh. Narsinghu dated 19/6/2004 in favour of defendant is liable to be declared null and void? OPP
2. Whether the Will exeuted by late Narsinghu in favour of defendant is in contravention of his ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 5 undertaking before Lok Adalat in maintenance proceedings filed by the plaintiff? OPP
3. Whether the will is result of fraud and undue influence? OPP .
4. Whether the plaintiff is entitled for the decree of joint possession to the suit land and mutation No. 180 dated 20/3/2005 on the basis of will is liable to be declared illegal, null and void? OPP
5. Whether the present suit is not maintainable? OPD
6. Whether the present suit is bad for non-joinder and mis-joinder of necessary parties? OPD of
7. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
8. Whether the plaintiff has no cause of action? OPD rt
9. Whether the plaintiff has solemnized the second marriage during life time of deceased Narsinghu?
OPD
10. Whether deceased Narsinghu has executed a valid and due will in favour of defendant? OPD
11. Whether the plaintiff is not legal heir of deceased Narsinghu? OPD
12. Relief?"
4. Vide judgment and decree dated 17.7.2006, learned trial Court, decreed the suit of the plaintiff and declared will Ext. PW-
1/B and Ext. DW-5/A, as null and void.
5. Being dissatisfied with the judgment passed by learned trial Court, defendant approached Additional District Judge Mandi camp at Karsog by way of an appeal under section 96 CPC, which was registered as Civil Appeal No. 85 of 2006. However, fact remains ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 6 that appeal preferred by the defendant was dismissed and judgment of trial court stood upheld, hence, present regular second appeal, laying herein challenge to the judgment passed by both the Courts .
below.
6. RSA at hand was admitted by this Court on following substantial question of law of "Whether second wife plaintiff Shauji Devi is entitled to inherit the property of deceased Narsinghu to the extent of half share as is claimed by her?"
7. Mr. G.R. rtPalsra counsel representing the defendant, vehemently argued that the judgments and decrees passed by the courts below are not sustainable in the eyes of law as same are not based on correction appreciation of evidence adduced on record by the parties. While referring to the impugned judgment passed by first appellate Court, Mr. Palsra forcefully contended that bare perusal of same suggests that the Court below has failed to appreciate the evidence in its right perspective and impugned judgment is based on conjectures and surmises and as such same can not be allowed to sustain. Both the courts below came to wrong conclusion that Will is shrouded by suspicious circumstances because it stands duly proved that Narsinghu executed aforesaid Will in favour of defendant bequeathing therein his share in joint property in favour of defendant to the exclusion of plaintiff. He ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 7 further stated that there is no evidence available on record suggestive of the fact that plaintiff was legally wedded wife of Narsinghu and as such there was no occasion for the courts below .
to accept the claim of plaintiff that she was entitled to her share from the property of Narsinghu being his legal heir. He further stated that legally wedded wife of Narsinghu was Krishna Devi and, he, alongwith sister Meena Devi, was born out of their wedlock.
of While concluding his arguments, Mr. Palsra forcefully contended that the Will dated 19.6.2004, could not be brushed aside by rt learned courts below while placing heavy reliance upon the undertaking given by Narsinghu in the Lok Adalat. He further stated that the learned trial Court committed grave error while rendering erroneous finding on issues No.1 to 4, which prejudiced the case of the defendant, and no finding qua issue No. 6 was returned by the court below, merely on the ground that same was not pressed. In this regard, Mr. Palsra stated that issue No.6 being legal in nature was required to be decided by the learned trial Court, at the first instance before recording findings qua other issues. In the aforesaid background, Mr. Palsra prayed that the appeal may be accepted and suit filed by the plaintiff may be dismissed.
8. Mr. Vineet Vashishta, counsel for plaintiff, supported judgments and decrees passed by learned courts below. He strenuously argued that perusal of judgments and decrees passed ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 8 by learned courts below suggests that same are based on correct appreciation of evidence and there is no illegally or infirmity, in the same, as such present appeal deserves to be dismissed. While .
referring to the judgments passed by both the learned courts below, Mr. Vashishta forcefully contended that judgments and decrees are based on correct appreciation of evidence adduced on record and both the learned courts below have dealt with each and every aspect of of the matter meticulously and there is no scope of interference, especially in view of concurrent findings of fact recorded by learned rt courts below. Mr. Vashishta further argued that there is ample evidence led on record by plaintiff, be it ocular or documentary, suggestive of the fact that she was legally wedded wife of Narsinghu, who before his death had undertaken before Lok Adalat that he will maintain plaintiff during his life time and she will get her share in the suit property being his legal heir. In the aforesaid background, counsel representing defendant sought dismissal of the present appeal by upholding the judgments and decrees passed by both the Courts below.
9. I have heard the parties and gone through the records.
10. During arguments having been advanced by the parties, this court had an occasion to peruse pleadings and documentary as well as oral evidence, adduced by parties, perusal whereof clearly ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 9 suggests that plaintiff Shouji Devi successfully proved on record that she was legally wedded wife of Narsinghu. Plaintiff by way of suit for declaration and joint possession claimed that will dated .
19.6.2004 executed by Narsinghu in favour of defendant be declared null and void. Similarly she claimed that Mutation No. 180, attested on the basis of the aforesaid Will, be declared null and void and inoperative qua plaintiff. Plaintiff, with a view to prove that she was of legally weeded wife of Narsinghu, examined herself as PW-1 and stated that she was legally wedded wife of Narsinghu, who during rt life time executed a Will in favour of defendant, compelling her to file a maintenance petition. She further stated that same was compromised before Lok Adalat, wherein Narsinghu furnished undertaking that after his death, his legal heirs, including plaintiff, would inherit his property. She further stated that he had undertaken to maintain her. She also stated that the moment she came to know that Narsinghu executed a Will in favour of defendant, she filed maintenance petition. It has also come in her statement that she rendered her services to Narsinghu during his life time and performed his last rites.
11. PW-2 Karmia and PW-3 Dhari have also supported version of plaintiff by stating that she was legally wedded wife of Narsinghu and she has rendered her services to Narsinghu during his life time and also performed his last rites. PW-3 Dhari further stated that ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 10 plaintiff is in possession of 3-4 fields out of share of Narsinghu and was cultivating same till date. Cross-examination of these witnesses, nowhere suggests that defendant was able to extract anything .
contrary, rather suggestions put to them by defendant that plaintiff was not legally wedded wife of Narsinghu were specifically denied by them. Plaintiff apart from aforesaid evidence as discussed above also made available on record documents Ext. PW-1/A to Ext. PW-
of 1/A-3, copies of Parcha Jamabandi for the year 2001-2002, which shows beyond reasonable doubt that Narsinghu was owner in rt possession of his share in suit land alongwith others. Copy of Parivar register issued by Gram Panchayat Mashog further proves that plaintiff is recorded wife of Narsinghu. PW-1/D, death certificate of Narsinghu suggests that he expired on 17.11.2004.
Apart from above, plaintiff also placed on record Ext. PW-1/E dated 22.2.2002, i.e. order passed by Lok Adalat in maintenance petition filed by plaintiff before SDJM Karsog, wherein deceased Narsinghu compromised matter before Lok Adalat. PW-1/F is copy of statement of Narsinghu recorded at the time of recording of aforesaid compromise before Lok Adalat, which suggests that Narsinghu had given undertaking that he will maintain plaintiff till his death and after his death property will be inherited by legal heirs. Similarly, the will executed by him before Lok Adalat was also cancelled.
::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 1112. Careful perusal of aforesaid oral and documentary evidence led on record by plaintiff clearly suggests that she was successful in proving that she was legally wedded wife of Narsinghu, who had .
undertaken before Lok Adalat that he would be maintaining plaintiff during his life time and after his death she would be entitled to share in his property alongwith other legal heirs. As has been observed above, there is nothing in the cross-examination of plaintiff of as well as other plaintiff witnesses, which could compel this Court to believe the version of Mr. Palsra, that both the Courts below rt miserably failed to appreciate that there was no evidence on record suggestive of the fact that plaintiff was a legally wedded wife of Narsinghu, rather, this Court, after carefully perusing the pleadings as well as evidence led by parties, has no hesitation to conclude that plaintiff was legally wedded wife of Narsinghu, who had bounden himself before Lok Adalat that he will not execute any will qua suit land in favour of defendant. As far as factum of plaintiff being wife of late Narsinghu is concerned, that stands duly proved by way of overwhelming documentary evidence as discussed above. Most importantly, statement of Narsinghu recorded before Lok Adalat leaves no scope for this Court to differ with the findings of the learned courts below that plaintiff namely Shouji Devi was legally wedded wife of Narsinghu, because in his statement, Narsinghu has admitted plaintiff to be his legally wedded wife. Though, plaintiff by ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 12 way of leading oral as well as documentary evidence made an attempt to prove on record that Will dated 19.6.2004, i.e. Ext. PW-
1/B and Ext. DW-5/A was executed by Narsinghu bequeathing .
his share in suit land in favour of defendant but, at the cost of repetition, it may be observed that Will Ext. PW-1/B and Ext. DW-
5/A, is of no consequence in view of undertaking given by Narsinghu before Lok Adalat, on the basis of which, compromise of decree was passed, which admittedly attained finality, because at no point of time, any challenge was laid to the same by late Narsinghu.
13. rt Before adverting to the merits of the case, it would be appropriate to deal with the specific objection raised by the learned counsel representing the respondents with regard to maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below, Mr. Vineet Vashishta had invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP 13 our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained." (p.269)
14. Perusal of the judgment, referred hereinabove, suggests that .
in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the of Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from rt re-appreciating the evidence available on record.
15. In view of above, this Court sees no illegality and infirmity in the concurrent findings of facts recorded by learned courts below holding plaintiff, to be leally wedded wife of Narsinghu. Since both the learned courts below held plaintiff to be legally wedded wife of Narsinghu, there is no illegality and infirmity in holding her entitled to the share in the property of Narsinghu after his death being his legal heirs.
16. Hence, substantial question of law is answered accordingly.
17. Accordingly, the appeal is without any merits, and the same is dismissed. Pending applications are also disposed of.
(Sandeep Sharma) Judge November 7, 2016 Vikrant ::: Downloaded on - 15/04/2017 21:30:56 :::HCHP