Delhi District Court
Brij Mohan vs Rajinder Lal on 31 August, 2023
1
IN THE COURT OF MS.VEENA RANI :ADJ-06, WEST
DISTRICT, TIS HAZARI COURTS, DELHI
CNR NO.DLWT01-000862-2015
RCA No.60820/2016
Sh. Brij Mohan (Since Deceased)
through LR's & ors .....Appellants
Versus
Sh.Rajinder Lal Sharma (Since Deceased)
through LR's & ors .....Respondents
DATE OF FILING OF APPEAL :14-09-2015
DATE OF ARGUMENT :28-08-2023
DATE OF FINAL ORDER :31-08-2023
ORDER/JUDGMENT
1. Appellants have preferred the present appeal u/s 96 r/w Order XLI CPC against the Judgment and decree dated 11-08-2015 passed by Ms. Chhavi Kapoor, Ld. Civil Judge, West District, Tis Hazari Courts, Delhi, passed in Civil Suit No.162/2012, titled as Rajinder Lal Vs. Brij Mohan Lal Sharma & Anrs. (hereinafter referred as impugned judgment).
2. Brief facts of the case as narrated in the present appeal is that the father of appellant/respondent no.1 (now deceased through LR's) Sh. Raja Ram was given in the adoption to Sh. Kishan Lal S/o Sh. Kashi Ram. Sh. Kishan Lal was the owner of the property bearing House no.270, RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 2 Gali Kunjarowale, Dariba Kalan, Chandni Chowk, Delhi as well as a private temple bearing no. 278. On the death of Sh. Kishan Lal Sh. Raja Ram inherited his ancestral property. Sh. Kishan Lal executed a Will dt. 09-11-1889 in favour of Sh. Raja Ram, which was duly registered with Sub Registrar, Delhi make a scheme for administration of his properties qua Raja Ram and his 3 sons & respondent no.1, appellant and respondent no.2 and by doing this a coparcenaries constituted the joint family of parties which the Raja Ram was the Karta acquired other assets from the resource of coparcenaries which also included house no.270, cash deposit amount to Rs.15000/- in the name of Sh. Raja Ram in the central Bank of India, Chandni Chowk, beside other gold and silver ornaments amounting to Rs.15000/-.
3. It is averred that Sh. Raja Ram expired on 15-10- 1975 and upon his death qua 1/4th share undivided in the coparcenaries property got separated by operation of law. It is stated that a Will dt. 16-06-1975 was executed by Sh. Raja Ram in his life time, by which he has bequeathed his entire estate to the respondent no.1 and 2, hence by virtue of the said Will, the respondent no.1 claims that he and respondent no.2 are entitled to 3/8th share of the coparcenaries property whereas th appellant is liable to take only 1/4th share of the same. It is submitted that Smt. Prasandi Devi W/o late Sh. Raja Ram and deceased daughter Ms. Satyawati being female member of Hindu join family could not have any title or interest in the above property except in the shame of Sh. Raja Ram, but since RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 3 Raja Ram has not expired intestate and bequeathed his property to the respondent no.1 and 2, hence,a it was stated that Smt. Prasandi Devi (Now deceased) and Smt. Satyawati (now deceased) had no right to seek a share in he suit property. It is stated that the appellant and ors were making unjustified claims with respect to the suit property. It is stated that Smt. Prasandi Devi had been demanding rent from the tenants claiming that she was absolute owner of the suit property. It is alleged that Smt. Prasandi had propounded a Will of Sh. Raja Ram dt. 31-01-1974 by virtue of which she claimed herself the absolute owner of the suit property which the respondent no.1 denied and stated that such will stand surpassed by the subsequent Will executed by Raja Ram in favour of the respondent no.1 and 2 dt.16-06-1975. It is further alleged that Smt. Prasandi had no right to further bequeath the property to the appellant hence the alleged Will dt. 03-04-1980 executed by Smt. Prasandi Devi in favour of the appellant was null and void and the respondent filed the suit claiming the following relief;-
(a) A declaratory decree declaring House no.270 and Temple no.278 are constitutes as well and other as coparcenaries property to which the respondent no.1 and 2 and appellant have equal share.
(b) A declaratory decree, declaring that appellant had misappropriated more than the value of his share in coparcenaries property he is not entitled to make any claim in house no.270 and temple no.278 as the same are exclusive property of the respondent no.1 and 2.
RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 4 In the alternative a decree of partition of the coparcenaries properties in favour of respondent no.1 and 2 and the appellant for division by metes and bounds of movable property and assets value thereof and a preliminary decree be drawn up.
(c) Decree of rendition of account in favour of respondent no.1 and against Smt. Prasandi Devi and Brij Mohan.
(d) On pursuing preliminary decree of partition and rendition of account, the receiver be appointed and respondent no.1 be put in possession of this share in coparcenaries property.
(e) A declaratory decree in favour of respondent no.1 and against Smt. Prasandi Devi and Brij Mohan are not entitled to any claim in coparcenaries property.
(f) A decree of prohibitory in avour of the respondent and against Smt. Prasandi Devi restraining her permanently from claiming ownership and collecting rent from the tenants.
(g) A decree of mandatory injunction in favour of the respondent and against Smt. Prasandi Devi, Brij Mohan and Anand Bihar thereby ordering to stop their use and occupation of portion of House no.270 and deliver the possession of the same to the respondent no.1 and Sh. Anand Bihari Lal.
4. It is averred that the above plaint was amended several time and that last amended plaint was filed a copy of same is placed herein on record. It is stated that the appellant and Smt. Prasandi Devi filed their joint written statement and Sh. Anand Bihari Lal filed his separate written statement and subsequently the appellant filed RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 5 independent written statement to the amended plaint. The copy of the same are also filed on record herein.
5. It is stated by appellant that after trial of the case and hearing of all the parties ld. Trial court has passed the impugned order/judgment & preliminary decree dated 11- 08-2015. Now the appellant preferred the appeal against the said impugned judgment/decree. The ground for the appeal are as under:-
(A) That the ld. Trial court erred in appreciating the admissions of respondent no.1 that the suit property acquired by Sh.
Raja Ram through Will dt. 09-11-1889 as absolute owner of suit property and said property was not the subject matter of partition.
(B) That the ld. Trial court erred in appreciating that the registered Will dt. 31-01-1974 of Sh. Raja Ram and Will dt. 03-04-1980 by Smt. Prasandi Devi were duly proved by Prasandi Devi and appellant in eviction proceeding before the Ld. Rent Controller in case titled Smt. Prasandi Devi Vs. Hari Ram etc. and appellant proved the above will in execution proceedings in Ex. No.223/2010 wherein the respondent no.1 party who filed his objection, he was given the opportunity to lead evidence but due to non production, his objection and appeal was dismissed and on the basis of Will he alone was substituted as LR of Smt. Prasandi Devi.
(C) That Ld. Trial Court erred in not taking the notice of various judgments passed by trial court of Rent controller and Rent Controller Tribunal.
RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 6 (D) That the ld. Trial court erred in appreciating the aforementioned Wills which stood proved in above proceedings.
(E) That the ld. Trial court erred in holding that non production of original court record was fatal in this case. (F) That the ld. Trial court erred in holding that no opportunity to cross examine the witnesses in proceedings which is contradictory to the records.
(G) That the ld. Trial court erred in appreciating that the appellant is of 75 years of age and Will pertain to 1975 and 1980 and it was not possible to check the availability of attesting witness due to gaps of long time and change of addresses.
(H) That the ld. Trial court erred in holding that the above stated Wills were not proved in accordance with the provision of Section 68 of Evidence Act.
(I) to (K) That the ld. Trial court erred in holding that appellant concealed the material facts and respondent failed to get the thumb impression lab tested as it was the burden upon him; that the above Will was resisted at the house of Raja Ram and no Registrar visits the residence of a person unless the legal formality are completed. (L) That the ld. Trial court erred in holding the Will dt. 31-01- 1974 was not proved as per law.
(M) That the ld. Trial court erred in holding that the respondent has succeeded in showing the court that Smt. Prasandi Devi had no authority to bequeath the estate of Sh. Raja Ram to the appellant by way of Will dt. 03-04-1980.
RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 7 (N) That the ld. Trial court erred in holding that appellant was habitual of making contradictory claims before the court. (O) &(P) That the ld. Trial court erred a long time for about 40 years; that minor discrepancy in cross examination is due to old age of appellant and laps of time.
(Q) That the ld. Trial court erred in holding that Will dt. 31- 01-1974 and Will dt. 03-04-1980 are invalid in law and can not be considered to have conferred by any right upon him. (R) That the ld. Trial court erred in holding that suit property is liable to be partitioned amongst three brother by way of metes and bounds.
(S) to (U) That the ld. Trial court erred in deciding the issues no.6,8,10 and 13 in favour of Respondent no.1 and issues no;12 in favour of the respondent no.1 and against the appellant. That the ld. Trial court erred in deciding the issue no.1 & 5 in favour of the respondent no.1 and against the appellant.
(V) That the ld. Trial court has passed the impugned judgment and decree on conjunctures and surmises and without application of judicial mind and same is liable to be set aside.
6. In his reply to the present appeal, the respondent no.2 Sh. Anand Bihari Lal has stated that ld. Trial court has passed the judgment/decree rightly. It is admitted that Sh. Raja Ram was adopted by Sh. Kishan Lal but Sh. Raja Ram has no concern with the original father of Sh. Raja Das after said adoption. It is stated that Sh. Chand and Om Parkash, the nephews of Sh. Raja Ram filed a suit no.337/514 of 1954/56 for partition and rendition of RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 8 accounts alleging that the property in dispute is a joint Hindu Family Property and being the Coparcener of the property Sh. Raja Ram was entitled to be share to the extent of ½ and the said suit was decreed by Ld. Sr. Sub Judge, Delhi and appeal against the said order and said appeal was accepted by the Hon'e High Court of Delhi and admitted the contention of Sh. Raja Ram that the property in question comes to the share of Raja Ram from the adopted father Sh. Kishan Lal and not from his real father Sh. Ramji Dass. It is stated that from the order of Hon'ble High Court it is clear that the property in question is an ancestral property. It is stated that due to little dispute regarding suit property, the family of Rajinder Lal had left the premises prior to 1961-1962 due to threats by Brij Mohan Lal, after locking his respective portion (One kotha & One Dalan) and started living at E-74 Gole Building, Krisha Nagar, Delhi on rent. It is further stated that replying respondent has also left the premises in 1972 after locking his respective portion and started living on rent some other property as Sh. Brij Mohan Lal was indulged in bad activities and as Sh. Brij Mohan Lal also threatened to shoot the family of replying respondent. It is also stated that Sh. Rajinder Lal was also in habit of taking forcible possession of the properties of the others which included the properties of the answering respondent and his mother and sisters. Police complaints were also lodged against Sh. Rajinder Lal but no action was taken by police.
7. It is submitted that both the Will dt. 31-01-1974, 16- 06-1975 and 03-04-1980 have not been considered by ld.
RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 9 Trial Court. It is denied by the answering respondent that ld. Trial court has erred in appreciate the facts, evidence and material on records while passing the decree & judgment. The answering respondent has controverted all the grounds taken by the appellants for setting aside the impugned order/decree. It is stated that present appeal is not filed within the prescribed period of limitation and same is false and frivolous and same is liable to be rejected.
8. I have gone through the written arguments/written submissions filed on behalf of the parties and perused the records. This court deliberates as under:-
Deliberations:
9. It is a settled principle of law that the appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage, it would have come to a different conclusion. {See : (i).Neon Laboratories Ltd. Vs. Medical Technologies Ltd., (2016) 2 SCC 672 (para 5) (ii).Wander Ltd vs. Antox India Pvt. Ltd., (1990) Suppl SCC 727}
10. The appellate court ought to not interfere with the finding of the trial court unless the finding recorded by the trial court is erroneous or the trial court ignored the evidence on record. {See : Venkatesh Construction Co. Vs. Karnataka Vidyuth Karkhane Limited, (2016) 4 SCC 119 (para 20) (Three-Judge Bench)} RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 10
11.In the present case the Ld. Trial Court has rightly taken a view that the non-production of original WILL(s) rendered the case of the appellant un-proved.
12.As far as the registered WILL was concerned, it has been considered by the Ld. Trial Court that DW-1 admitted in his cross-examination that he had not obtained the original copy of the WILL dated 31.01.1974 or certified copy from the record of the Sub-Registrar Office. Although the said witness stated that the original WILL was filed in the eviction proceedings, no steps were taken to summon the records etc. The Ld. Trial Court further pointed that the defendant was reluctant in producing the original WILL. The Ld. Trial Court further observed that none of the persons in whose presence the WILL was executed, were called to the witness box. The contradictions were also pointed out by the Ld. Trial Court.
13.The rule is and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact." (See:- Sarju Pershad Vs Jwaleshwari Pratap, AIR 1951 SC 120= 1950 SCR 7839).
14.The Hon'ble Supreme Court having considered a number of English and Indian decisions in laying down the subtle RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 11 principle on the point regarding the powers of the first appellate court in appreciation of evidence and interference with finding of fact recorded by the trial court in Radha Prasad Vs Gajadhar Singh, AIR 1960 SC 115 and held that, "the position in law, in our opinion, is that when an appeal lies on facts it is the right and the duty of the Appellate Court to consider what its decision on the question of facts should be; but coming to its own decision it should bear in mind that it is looking at the printed record and had no opportunity of seeing the witnesses and that it should not lightly reject the Trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court.
15. The Ld. Trial Court has discussed the evidence at length and has also discussed the cross-examinations of the witnesses and came to a conclusion. The Ld. Trial Court had taken into account all the facts and the evidence of the matter including the relevant documents. There is nothing to show that the reasoning and conclusion of the trial court are in any manner illegal. The Ld. Trial Court had considered all the evidence before it and also considered the version of the appellant-herein in all respect. There is no reason to interfere with the reasoning and findings of the Ld. Trial Court. The Appellate Court cannot substitute its own view by reversing the decision of the Trial Court unless the findings of the trial Court are perverse. This RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 12 court finds no reason to interfere in the decision/ judgment / order of the Ld. Trial Court.
16. It is, apt to observe that the foundation of Civil law is based on "preponderance of probability", means an out weighing in the process of balance however slight may be the tilt of the balance or the preponderance. As a conjecture 'preponderance' generally signifies that which satisfies the conscience and carries conviction to an intelligent mind. So, preponderance of evidence means to out weight; to weigh more, a clear preponderance may mean that which may be seen in discernible, and may be appreciated and understood. But, it may also convey the idea of certainty beyond doubt. The second LIMB of appreciation of evidence is 'admissibility and appreciation' of documentary evidence. The Evidence Act; classify document into two types: one is according to section 74 is 'public document'. Before a document rendered by a party, is received in evidence, the question of its admissibility arises and the same is to be decided in accordance to certain statutory provisions that deal with the admissibility of documentary evidence. It is a cherishing aspect to remember that admissibility of document in evidence is distinct from that of proof of its execution and contents. The Ld. Trial Court has rendered the findings on sound factual and legal basis.
17. The Ld. Trial Court has rightly disposed of the issue relating to the proof of WILL(s) as the burden of proving the execution of the Will would be on the propounder who RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors 13 is to prove it affirmatively that the testator approving the content and then only shifts upon those oppose the Will to prove fraud or undue influence to displace the case of proving the will. The propounder also has to establish that the testator at the time of execution of the will or in a sound state of mind and body as laid down in a catena of judgments.
18. In view of the principles of appeal under the Civil Procedure Code and guidelines laid down by the Hon'ble Supreme Courts and the High Courts this court does not find any ground to interfere with the judgment of the Ld. Trial Court. Accordingly, the present Appeal is dismissed.
19. Copy of this judgment/order be sent to the ld Trial Court. TCR be sent back accordingly. Appeal file be consigned to record room as per law. Digitally signed by VEENA VEENA RANI RANI Date:
2023.09.05 Announced in the open court. 12:51:25 +0530 (VEENA RANI) Additional District Judge-06, West District, Tis Hazari Courts, Delhi Judge Code : DL271/Date:31-08-2022 RCA No.60820/2016, Sh. Brij Mohan (Since Deceased) through LR's & ors Vs. Sh. Rajinder Lal Sharma (Since Deceased) through LR's & ors