Punjab-Haryana High Court
(O&M;)Hari Ram vs Tarsem Lal,Arihant Jain on 27 August, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No. 3440 of 1986
DATE OF DECISION : 27.08.2014
Pt. Hari Ram (deceased) through LRs and another
.... APPELLANTS
Versus
Tarsem Lal Passey (deceased) through LRs and others
.... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
Present : Mr. Eklavya Gupta, Advocate,
for the appellants.
Mr. Jatinder Nagpal, Advocate,
for the respondents.
***
SATISH KUMAR MITTAL, J.
Defendants No.1 and 2 have filed this Regular Second Appeal against the judgment and decree dated 25.8.1986 passed by the first appellate court, whereby after reversing the judgment of the trial court, suit for possession filed by plaintiff Tarsem Lal Passey (respondent No.1 herein) regarding the house in question has been decreed, and the defendants have been restrained from demolishing any part of the said house.
The brief facts of the case are that the property in question is a house situated in Patiala, which was owned by one Gursaran Dass Duggal. He was having only one daughter. Plaintiff Tarsem Lal Passey is the son of DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -2- daughter of said Gursaran Dass Duggal. On 2.1.1943, when Gursaran Dass Duggal became old and was not keeping good health, he executed a registered Will (Ex.P1) in favour of his wife Smt. Des Rani. According to the terms of the Will, on the demise of Gursaran Dass Duggal, the house in question was to devolve upon Smt. Des Rani. It was stated that she will be limited owner of the said house during her life time without any right of alienation; and after her death, the house would devolve upon plaintiff Tarsem Lal Passey. It is the undisputed position that Gursaran Dass Duggal died before coming into force the Hindu Succession Act, 1956. It is also undisputed fact that after his death, his wife Smt. Des Rani exclusively came into possession of the said house.
Subsequently, in the year 1964, Smt. Des Rani, being absolute owner of the house in question, gifted the same in favour of defendants No.1 and 2 (appellants herein) vide registered gift deed dated 26.4.1964 (Ex.D1), who rented out the house to defendants No.3 and 4. Thereafter, she died and in the year 1983, Tarsem Lal Passey filed the present suit for possession.
The defendants contested the suit. They pleaded that after the death of Gursaran Dass Duggal, Smt. Des Rani became full owner of the house in dispute and she being absolute owner had executed the registered gift deed in favour of defendants No.1 and 2, which was perfectly valid, and thereafter, the plaintiff had no right or interest in the suit property. DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -3-
From the pleadings of the parties, the following issues were framed :
(1) Whether the plaintiff is owner of the property in dispute on the basis of will dated 2.1.1943 after the death of Des Rani as alleged in the plaint ? OPP (2) Whether the registered gift deed dated 26.4.64 in favour of defendants No.1 and 2 is void and if so to what effect ? OPD (3) Whether the suit is bad for joinder of the parties ? OPD (4) Whether the plaintiff has no locus standi to file the suit ? OPD (5) Relief.
Issues No.1 and 2 are relevant, as on the basis of findings recorded on both these issues, suit of the plaintiff was dismissed by the trial court, vide judgment and decree dated 31.10.1984. On issue No.1, it was held that the plaintiff has failed to prove the Will in his favour. He has placed on record only certified copy of the Will as Ex.P1 and the said copy has not been proved in accordance with law. The contention of the plaintiff that since the registered Will was 30 years old document, therefore, under Section 90 of the Indian Evidence Act, 1872 (hereinafter referred to as `the Evidence Act') it should be presumed to be correct, was not accepted. On issue No.2, it was held that the defendants have proved the registered gift deed dated 26.4.1964 (Ex.D1) executed by Smt. Des Rani in favour of defendants No.1 and 2, therefore, it was held that Smt. Des Rani, who was DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -4- absolute owner of the house in question, had validly gifted the same to defendants No.1 and 2 vide the aforesaid registered gift deed.
On appeal filed by the plaintiff, the judgment and decree passed by the trial court was reversed and suit of the plaintiff was decreed. On issue No.1, it was held that the registered Will in question was 30 years old document, therefore, presumption envisaged in Section 90 of the Evidence Act is attracted. It was held that the presumption as enshrined in Section 90 of the Evidence Act applies to certified copies as well. Thus, certified copy of the Will, which is 30 years old document, is admissible in evidence as secondary evidence if the same was produced from proper custody. Therefore, the said Will was taken to have been proved. After coming to the said conclusion, it was further held by the first appellate court that under the term of the Will, Smt. Des Rani was limited owner of the property in question with no right of alienation, and after her death, the property was to devolve upon Tarsem Lal Passey (plaintiff), in terms of the Will (Ex.P1) as full owner, therefore, he was entitled to take possession of the property on the basis of title.
It is pertinent to mention here that the learned first appellate court has not examined at all the effect of Section 14 (1) of the Hindu Succession Act, 1956 (hereinafter referred to as `the Act') on the right of Smt. Des Rani being limited owner under the Will.
In my opinion, in view of the facts and circumstances of the DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -5- case, the following two substantial questions of law are arising in the present appeal for consideration :
(i) Whether the presumption with regard to a Will executed more than 30 years back without the same being proved in terms of Section 63 (c) of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, can be drawn under Section 90 of the Evidence Act on the basis of certified copy of the said Will ?
(ii) Whether a wife, in whose favour a Will was executed by her husband bequeathing the property as limited estate in lieu of maintenance and possession of the same came to her before coming into force the Act, becomes absolute owner of such property, after coming into force of the said Act, in view of Section 14 (1) of the Act ?
On the aforesaid substantial questions of law, I have heard learned counsel for the parties and have gone through the judgments and decrees passed by both the courts below as well as record of the case.
In this case, the Will dated 2.1.1943 was a registered Will. The original Will was not produced by the plaintiff. Only the certified copy of the same was placed on record as Ex.P1. Neither the attesting witness nor the scribe of the Will was examined.
PW.1 Inderjit Singh, Registration Clerk, brought the summoned record from Tehsil Office, Patiala. PW.2 Khem Singh, Field Kanoongo, stated that the certified copy of the Will dated 2.1.1943 was issued by the Office of Sub Registrar, Patiala. PW.3 Manmath Nath is son of Lala Bhagat DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -6- Ram, the attesting witness of the said Will, who has died. He stated that he had seen the certified copy of the Will and his father had told him regarding execution of the aforesaid Will by Gursaran Dass Duggal. He does not prove the signatures of his father on the Will. PW.4 Som Parkash is son of the scribe of the Will in question. He also does not prove the signatures of the testator and the attesting witnesses on the Will.
While considering the evidence led by the plaintiff, learned trial court rightly came to the conclusion that the plaintiff has failed to prove the execution of the Will dated 2.1.1943 (Ex.P1). In my opinion, in the facts and circumstances of the case, the learned first appellate court has erred in law, while reversing the said finding of the trial court and coming to the conclusion that in the present case, presumption to the certified copy of the Will has to be raised under Section 90 of the Evidence Act.
It is well settled that merely because a Will is more than 30 years old document, presumption under Section 90 of the Evidence Act cannot be drawn that the document was duly executed and attested by the persons by whom it purports to have been executed and attested. In Bharpur Singh and others vs. Shamsher Singh, AIR 2009 SC 1766 and M.B. Ramesh (D) by L.R.s vs. K.M. Veeraje Urs (D) by L.R.s and others, AIR 2013 SC 2088, the Hon'ble Supreme Court has held that a presumption regarding documents 30 years old does not apply to a Will. A Will has to be proved in terms of Section 63 (c) of the Indian Succession Act, 1925 read DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -7- with Section 68 of the Evidence Act. In the present case, in my view, the plaintiff has not proved the Will in question, either directly or by leading secondary evidence, in terms of Section 63 (c) of the Indian Succession Act, 1925. In order to prove the execution of a Will, it is mandatory that out of two attesting witnesses, at least one witness should have been examined to state that the testator had signed or affixed his/her mark to the Will in presence of the attesting witnesses. In this case, no such evidence has been led by the plaintiff. Thus, in my opinion, the learned first appellate court has committed illegality while reversing the findings of the trial court on issue No.1. Consequently, issue No.1 as well as the aforesaid first substantial question of law are decided against the plaintiff.
Even if it is taken that a valid Will was executed by Gursharan Dass Duggal, even then suit of the plaintiff cannot be decreed on the basis of title. A perusal of the certified copy of the Will (Ex.P1) reveals that the testator executed the Will making his wife Smt. Des Rani as limited owner in lieu of her maintenance. It was written in clause 3 of the Will that the testator is bequeathing the house to his wife keeping in view his domestic need. After his death, she will be limited owner of the house without any right of alienation and after her death, the house will devolve upon his daughter's son. Thus, from the Will, it is clear that Smt. Des Rani was given the house as limited owner in recognition of her pre-existing right of maintenance and such right blossomed into absolute ownership after 1956 DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -8- under Section 14 (1) of the Hindu Succession Act, 1956. A Hindu female, particularly a wife, has right of maintenance under Sastric Law. It has been held by the Hon'ble Supreme Court in C. Masilamani Mudaliar and others vs. Idol of Sri Swaminathaswami Thirukoil and others, (1996) 8 Supreme Court Cases 525 that the property given under a Will to a wife must be construed to have been acquired by the wife in lieu of her right of maintenance. In this case, the Will is clear. It has been specifically stated by the testator that in lieu of the domestic expenses, the house is bequeathed in favour of his wife, though as limited owner till her death. It has been held by the Apex Court in the aforesaid case that if the acquisition of the property attracts sub-section (1) of Section 14 of the Hindu Succession Act, 1956, sub-section (2) does not come into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc., then sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, it does not engulf and wipe out the operation of sub-section (1). Test is whether the Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in positive, sub-section (1) of Section 14 gets attracted. Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -9- attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case. Thus construed, both sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance.
In the present case, as is clear from the Will, right of Smt. Des Rani in the Will was not created for the first time, but the house was bequeathed to her in recognition of her pre-existing right of maintenance. The right of maintenance of Smt. Des Rani was existing before execution of the Will, which was acknowledged in the Will itself by the testator. Therefore, in the present case, sub-clause (2) of Section 14 of the Hindu Succession Act, 1956 does not attract at all. The learned first appellate court has not taken into consideration this aspect of the matter. Thus, the aforesaid second substantial question of law is also decided against the plaintiff and in favour of the appellants.
In the present case, Gursaran Dass Duggal died before 1956. In that eventuality also, his wife Smt. Des Rani, on demise of her husband, inherited the property being first class heir and she became absolute owner of the same. Thus, examining from any angle, after coming into force the Hindu Succession Act, 1956, Smt. Des Rani became absolute owner of the house in question and she was fully competent to alienate the same by any DASS NAROTAM 2014.09.02 14:54 I attest to the accuracy and integrity of this document RSA No. 3440 of 1986 -10- mode of alienation. The alienation made by Smt. Des Rani in favour of defendants No.1 and 2 vide the valid gift deed dated 26.4.1964 has not been disputed in this case, and both the courts below have decided issue No.2 against the plaintiff.
In view of the above, I am of the considered opinion that the learned first appellate court has committed grave illegality, while reversing the judgment and decree of the trial court, and decreeing the suit of the plaintiff on the basis of title.
Consequently, the impugned judgment and decree dated 31.10.1984 passed by the first appellate court is set aside and that of the trial court is restored.
Appeal is, accordingly, allowed, with no order as to costs.
August 27, 2014 ( SATISH KUMAR MITTAL )
ndj JUDGE
DASS NAROTAM
2014.09.02 14:54
I attest to the accuracy and
integrity of this document