Punjab-Haryana High Court
Nishabar Singh vs Local Gurdwara Committee Manji Sahib, ... on 16 April, 1986
Equivalent citations: AIR1986P&H402, AIR 1986 PUNJAB AND HARYANA 402, (1986) 2 CURLJ(CCR) 546
JUDGMENT
1. This judgment shall dispose of R.S.A. Nos. 1651 of 1975, 209 of 1976 and Civil Revision No. 1771 of 1976.
2. Briefly the facts are that Smt. Kishan Kaur was the owner of the property in dispute. She made a will dt. 13th Mar. 1964 bequeathing land measuring 36 Kanals 5 Marlas to Sunder Singh for lifetime with a condition that it would revert to Gurdwara Manji Sahib and Darbar Sahib, Amritsar in equal shares after his death and the remaining land to the aforesaid Gurdwara Manji Sahib and Darbar Sahib in equal shares. Smt. Kishan Kaur died on 22nd Dec. 1969. It is alleged that Nishabar Singh defendant 1 had taken possession of the property illegally. Consequently a suit for possession was filed praying that a decree for possession be passed, half in favour of the plaintiff and half in favour of Shiromani Gurdwara Parbandhak Committee, defendant 2. Sunder Singh was impleaded as defendant 3.
3. The suit was contested by Nishabar Singh who denied the allegations of the plaintiff and pleaded that Smt. Kishan Kaur did not execute any will in favour of Manji Sahib, Karnal or Darbar Sahib, Amritsar. On the other hand she had executed a will dt. 16th Dec. 1969 in his favour. It was further pleaded that Sewa Singh had no locus standi to institute the suit on behalf of the plaintiff. Defendant 2 filed a separate written statement supporting the claim of the plaintiff and further pleading that decree for half of the land be passed in its favour. Sunder Singh died during the pendency of the suit.
4. On the pleadings of the parties the following issues were framed:
1. Whether the plaintiff has no locus standi to file the suit?
2. Whether Kishan Kaur made any valid will on 13-3-1964 in favour of the plaintiff and defendants 2 and 3? If so, to what effect?
3. Whether Kishan Kaur deceased made a valid and legal will on 16-12-1969 in favour of defendant 1? If so, to what effect?
4. Relief.
Later and additional issue was framed which was numbered as 2-A and is as follows:
If issue No. 2 is proved, whether Smt. Kishan Kaur had revoked, cancelled or destroyed the impugned will during her lifetime?
5. The trial Court held that the plaintiff had the locus standi to file the suit that Smt. Kishan Kaur made a valid will dt. 13th Mar. 1964 and that the will dt. 16th Dec. 1969 in favour of defendant 1 did not stand proved. It further held that Smt. Kishan Kaur did not cancel or destroy the will dt. 13th Mar. 1964. Consequently the suit was decreed by it in favour of the plaintiff with regard to whole of the property. Defendant 1 went up on appeal before the Additional District Judge.
6. During the pendency of the appeal defendant 2 filed an application in the trial Court under Ss. 151 and 152 of the Civil P.C. for amendment of the decree on 24th Jan. 1975 praying that the decree be amended and a decree for half of the property be passed in its favour. It dismissed the application on 5th Dec. 1975 on the ground that the appeal had been decided by the first appellate Court and the decree of the trial Court had merged in that decree. Defendant 1 has come up in Civil Revision No. 1771 of 1976 against this order.
7. The Additional District Judge affirmed the findings of the trial Court on all the issues but held that the plaintiff was not entitled to half of the property. Consequently he partly accepted the appeal, modified the decree of the trial Court and passed a decree in favour of the plaintiff-respondent regarding half of the property and dismissed the suit regarding the other half. Two appeals have been filed, one by Nishabar Singh defendant 1 (R.S.A. No. 1651 of 1975) and the other by Shiromani Gurdwara Parbandhak Committee and another (R.S.A. No. 209 of 1976).
8. The cases were listed before me on 9th Sept. 1985. On that day a contention was raised by Mr. Anand Swaroop that it had not been proved that Sewa Singh who instituted the suit on behalf of the plaintiff was authorised to instituted it. In view of the pleadings of the parties I framed an additional issue No. 1A as follows:
Whether Sewa Singh had the locus standi to institute the suit on behalf of the plaintiff? OPP.
After framing the additional issue, I remanded the case under O. 41, R. 25 of the Civil P.C. to the trial Court for recording the evidence of the parties on the said issue and to give its finding thereon. It was further directed that the report be submitted by the trial Court to the District Judge who would also record his finding after hearing the parties. The parties in pursuance of that order led evidence before the trial Court which held that Sewa Singh had the locus standi to institute the suit on behalf of the plaintiff, in view of the resolution dt. 30th April, 1970, Exhibit PW 1/A that finding has been affirmed by the Additional District Judge, Karnal. The appellant filed objection petition (CM 535-C of 1986) against the report.
9. First I shall deal with R.S.A. No. 1651 of 1975 filed by a Nishabar Singh. Mr. Anand Swaroop has contended that no resolution dt. 30th April 1970 was passed by the plaintiff authorising Sewa Singh to institute the suit and the findings of the Court below are erroneous. I regret my inability to accept the contention. Both the Court, after considering the evidence, gave a concurrent finding that the resolution dt. 30th April, 1970 authorising Sewa Singh to institute the suit was passed by the plaintiff. There is also mention about the resolution in the plaint. If the resolution was not passed on that date, that fact could not have been mentioned in the plaint. After taking into consideration all the facts I reject his submission. Consequently C.M. No. 535C of 1986 stands dismissed.
10. The next submission of Mr. Anand Swaroop is that the original will has not been found at the time of the death of the testatrix and consequently it would be deemed to have been cancelled. In support of his contention he placed reliance on Allan v. Morrison, (1900) AC 604.
11. I have duly considered the argument but I am not inclined to accept it. The question that arises for determination is that if the duly executed will is not found at the time of the death of the testator/testatrix whether a presumption can be drawn that the testator/testatrix had revoked it. Section 70 of the Succession Act, 1925, provides that no unprivileged will shall be revoked otherwise than by marriage, or by another will or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same. In Durga Parshad v. Debi Charan, AIR 1979 SC 145, their Lordships of the Supreme Court while interpreting the section 125 down the following six principles to determine the said question:
"1. That where a will has been properly executed and registered by the testator but not found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption is drawn it is rather a weak one in view of the habits and conditions of our people.
2. That the presumption is a rebuttable one and can be rebutted by the slightest possible evidence direct or circumstantial. For instance, where it proved that a will was a strong and clear disposition evincing the categorical intention of the testator and there was nothing to indicate the presence of any circumstances which is likely to bring about a change in the intention of the testator so as to revoke the will suddenly, the presumption is rebutted.
3. That in view of the fact that in our country most of the people are not highly educated and do not in every case take the care of depositing the will in the banks or with the Solicitors or otherwise take very great care of the will as result of which the possibility of the will being stolen, lost or surreptitiously removed by interested persons cannot be excluded, the presumption should be applied carefully.
4. That where the legatee is able to prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against the temperament and inclination of the testator no presumption of revocation of the will can be drawn.
5. That in view of the express provision of S. 70 of the Act the onus lies on the objector to prove the various circumstances, viz., marriage, burning, tearing or destruction of the will.
6. When there is no obvious reason or clear motive for the testator to revoke the will and yet the will is not found on the death of the testator it may well be that the will was misplaced or lost or was stolen by interested persons."
12. Now the matter is to be determined taking into consideration the above observations. Sewa Singh (PW 1) deposed that Nishabar Singh took possession of all the properties of the testatrix and the will was in his possession Nishabar Singh admitted that after the death of Smt. Kishan Kaur he took possession of all her goods. However, he said that he did not find the will in her papers. Sunder Singh was nearly related to her and served her during her lifetime. She, therefore, while bequeathing the property in favour of defendants 1 and 2 for her spiritual benefit made a provision for him for his lifetime. Nishabar Singh was not related to her. There were no changes in circumstances after the execution of the will on account of which she might have revoked the will. A contention was raised by Mr. Anand Swaroop that Sewa Singh had deposed that the testatrix might have torn the will. According to him, she destroyed the will with a purpose to revoke it. The contention, however, cannot be accepted. He was not sure whether the will had been destroyed by her. The onus was on Nishabar Singh to prove, the circumstances because of which she might have destroyed the will. He has failed to discharge the onus. I do not think Mr. Anand Swaroop can get benefit from that sentence. She was a simple village uneducated lady and was not expected to take as much care as could exclude the possibility of the will being stolen or destroyed or removed. The greater possibility is that Nishabar Singh took the will in his possession and destroyed that. Therefore, it cannot be held that the will was cancelled by the testatrix.
13. In Allan's case (1900 AC 604) (supra) to which reference has been made by Mr. Anand Swaroop, it was observed that where a will duly executed, traced to the testator's possession and last seen there, is not forthcoming on his death, the presumption is that it was destroyed by himself; and to rebut it, there must be sufficient evidence that it was not destroyed by the testator animo revocandi. The above observations are based on the decision of the Privy Council in Welch v. Phillips, (1836) 1 Moo PC 299. That case was noticed by the Privy Council in Padman v. Hanwanta, AIR 1915 PC 111 and it was observed that the said presumption may not be applicable to the people of this country in view of their nature and habits. The relevant observations of their Lordships are as follows:
"We think that the more reasonable presumption in this case is that the will was mislaid and lost, or else was stolen by one of the defendants after the death of Daula......... their Lordships think that it was perfectly within the competency of the learned Judges to come to that finding. Much stress has been laid on the view expressed by Baron Parke, in Welch v. Phillips, (1836) 1 Moo PC 299 that when a will is traced to the possession of the deceased and is not forthcoming at his death, the presumption is that he has destroyed it. In view of the habits and conditions of the people of India this rule of law, if it can be so called, must be applied with considerable caution. In the present case the deceased was a very old man and, towards the end of his life, almost imbecile. There is nothing definite to show that he had any motive to destroy the will or was mentally competent to do so. On the other hand, the circumstances favour the view the Chief Court has taken that the will was either mislaid or stolen".
The above observations of the Privy Council were followed by the Supreme Court in Durga Parshad's case (AIR 1979 SC 145) (supra) in the following words:
"The Privy Council made it very clear that the more reasonable presumption in a case like this should be that the will was mislaid, lost or stolen rather than that it was revoked. The Privy Council further endorsed the fact that the presumption of English law should be applied to Indian conditions with considerable caution. The High Court in the instant case does not appear to have kept in view the note of warning sounded by the Privy Council in the aforesaid case."
In the circumstances Mr. Anand Swaroop cannot derive any benefit from that case. Therefore, there is no substance in this appeal.
14. Now I advert to R.S.A. No 209 of 1979 filed by S.G.P.C., Amritsar and Local Gurdwara Committee. Mr. Gurbachan Singh has argued that after the death of Sunder Singh, the appellants in terms of the will are entitled to the property in equal shares. If S.G.P.C. did not institute the suit, it can now be transposed as plaintiff and a decree be granted in its favour in order to avoid multiplicity of the proceedings and to do justice between the parties. He made reference to Bhupendra Narayan Sinha Bahadur v. Rajeshwar Prosad Bhakat, AIR 1931 PC 162, and R. S. Maddanappa (deceased) v. Chandramma, AIR 1965 SC 1812, in support of his argument.
15. I find substance in the submission. It cannot be disputed that according to the will, S.G.P.C. is entitled to half share in the property. The will has been established by the Local Gurdwara Committee in the suit which was filed in 1970. A period of about 16 years has already elapsed, after the institution of the suit. In case S.G.P.C. is relegated to institute a fresh suit, it will take a long time for it to take possession of the property. It is well settled that the Court can suo motu transpose a defendant as plaintiff in order to avoid multiplicity of the proceedings.
16. I am fortified in the above view by the observations of their Lordships in Bhupendra Narayan Sinha Bahadur's case (AIR 1931 PC 162) (supra). In that case the plaintiff instituted a suit for declaration of his ownership and possession of the subsoil, and an injunction restraining the respondents from digging and removing the stones, earth or minerals, including the ochre, and claiming a large sum as damages. He was the eldest of four brothers, representing a zamindari which he alleged to be an impartible estate vested in him alone. He, however, joined his brothers as pro forma defendants to the suit and they supported his claim. The Subordinate Judge gave the appellant the declaration and injunction asked, in respect of the minerals, but holding that his sole title to the zamindari was not established, gave him only a quarter of the damages proved in respect of the removal of ochre. Both the parties appealed to the High Court which allowed the appeal of the respondent with the result that the plaintiff's suit was dismissed. The plaintiffs went up in appeal to the Privy Council. A contention was raised there that the appellant having not established that the zamindari was impartible, he could not recover more than the quarter share of the damages. Their Lordships observed as follows:
"If the finding as to impartibility is correct, the family must apparently be joint, and it is perhaps not easy to see how any member can recover his individual share. But their Lordships think that the question of impartibility should not have been gone into in the present proceedings. All the members of the family were parties to the suit, and were at least jointly entitled to the whole. The pro forma defendants asked that a decree should be passed in favour of the appellant. If there was a technical objection to this, the Court clearly had power at any stage of the proceedings to remedy the defect under O. 1, R. 10, Civil P.C., by adding the pro forma defendants as co-plaintiffs with the appellant. Such a course should, in their Lordships' opinion always be adopted where it is necessary for a complete adjudication upon the questions involved in the suit and to avoid multiplicity of proceedings."
These observations were followed din R. S. Maddanappa's case (AIR 1965 SC 1812) by the Supreme Court and it was observed that the power under O. 1, R. 10(2) of the Civil P.C. was exercisable by the Court even suo motu. As pointed out by the Privy Council in Bhupendra Narayan Sinha Bahadur's case (AIR 1931 PC 162) (supra), the power ought to be exercised by a Court for doing complete justice between the parties. Consequently I transpose S.G.P.C. as plaintiff along with the Local Gurdwara Committee. Thus S.G.P.C. is entitled to a decree for half of the land.
17. Mr. Gurbachan Singh while arguing Civil Revision No. 1771 of 1976 has submitted that the trial Court had the power to amend the decree in view of the circumstances of the case but it erroneously rejected the prayer of S.G.P.C. on the ground that the decree of the trial Court has merged in that of the appellate Court I do not agree with this submission. The trial Court passed a decree in favour of the Local Gurdwara Committee for whole of the land. Before the decision of the application the appellate Court modified the decree of the trial Court and dismissed the suit of the plaintiff qua half of the property. It is well settled that the decree of the trial Court after decision of the appeal merges with that of the appellate Court. After the modification of the decree by the appellate Court, the trial Court was left with no jurisdiction to amend the decree. Consequently I do not find any merit in the revision petition.
18. For the aforesaid reasons I accept R.S.A. No. 209 of 1975 and pass a decree for possession of whole of the land in favour of S.G.P.C. and Local Gurdwara Committee in equal shares. However, I dismiss R.S.A. 1651 of 1965 and Civil Revision No. 1771 of 1976. No order as to costs. C.M. No. 1587-C of 1985 is dismissed as infructuous.
19. Order accordingly.