Dismissed

Sunak Ram v. Partapi Devi

Himachal Pradesh HC26 May 2017RSA/320/2002

Case brief

AI extract

What is this about?

This Second Appeal challenges a decree dismissing a civil suit challenging a registered will. The Court upheld the lower courts' finding that the failure of the plaintiffs to produce the will or evidence to prove its forgery, coupled with attested revenue mutations in favor of the beneficiaries, validated the will.

What did the court decide?

The appeal was dismissed and the judgment and decree of the courts below were affirmed.

Sunak Ram Vs Partapi Devi — Succession and Inheritance | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RSA No. 320 of 2002 & CMP No. 6517 of 2016

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Reserved on: 27.03.2017

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Decided on: 26^th May, 2017

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Sh. Sunak Ram and another .......Appellants.

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Versus

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Smt. Partapi Devi and others. ...Respondents.

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Coram

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The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?¹ No. For the appellants: Mr. Ajay Kumar, Sr. Advocate with Mr. Dheeraj K. Vashisth, Advocate. For the respondents: Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate.

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Dharam Chand Chaudhary, Judge

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Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree dated 16.04.2002 passed by learned Additional District Judge, Shimla circuit Court at Rohroo in Civil Appeal No. 55-S/13 of 2000, whereby the appeal has been dismissed and the judgment and decree dated 26.04.2000 passed

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by learned Sub Judge, 1^st Class, Court No.2, Rohroo,

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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District Shimla (H.P.) in Civil Suit No. 25-I of 1995/76-I of 1998 has been affirmed.

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This appeal has been admitted on the following substantial questions of law:-

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Whether mere attestation of mutation of inheritance in the revenue records on the basis of disputed un-registered Will can raise presumption of execution or genuineness of the Will or such Will is required to be proved in Civil Court where it is challenged as a forged document?

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What is the effect in case the First Appellate Court as also the trial Court have ignored glaring discrepancies in the pleadings and evidence adduced by the respondents and also ignored legal position regarding proof of a disputed Will?

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The subject matter of dispute in the present lis

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is the ¼ share of Tikkam Dei in the suit land comprised in Khata Khatauni No. 125/151min, Khasra Nos. old 329, 1590/345, 1703/355, 407, 1705/410, 20220210, 411, 1595/413, 1652/460, 1594/631, 1593/613, 650, 1274, 1527/1530, 2021/1530, Kita 15, total measuring 38 bighas, situate in chak Kharshali, Tehsil Chirgaon, District Shimla,

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H.P., who during her life time bequeathed the same in favour of Pratapi Devi, respondent No.1 herein (hereinafter referred to as ‘defendant No.1’ in short). The previous owner of the suit property was her husband Madan Singh. The plaintiffs are the sons of said Madan Singh and Tikkam Dei. Deceased Madan Singh and Tikkam Dei had one daughter also, namely, Sur Dei, who is also no more on the land of living having already expired. Any how, Madan Singh was pre-deceased by the plaintiffs their mother Tikkam Dei and sister Sur Dei. Therefore, the suit property came to be inherited by them in equal share i.e. ¼ share each. Tikkam Dei bequeathed her ¼ share in favour of her grand daughter (daughter’s daughter), Partapi Devi, defendant No.1 in the trial Court. Mutation No. 23 was attested in favour of defendant No. 1 on 19.12.1992, therefore, the suit land to the extent of 3/8 share came to be entered in the name of defendant No. 1 as cosharer. She later on sold the land to the extent of her share to respondent No. 2 to 5 herein (defendants No. 2 to 5 in the trial Court) vide sale deed dated 23.02.1995

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Ext. PW-1/C. Mutation No. 27 dated 28.03.1995 came to be sanctioned and attested qua the land so purchased by the said defendants from defendant No.1, as is apparent from the entries in remark column of Jamabandi for the year 1980-81 Ext. PW-1/D. Kartab Dei, defendant No. 5 being the daughter of Sur Dei has also inherited the share of her mother said Smt. Sur Dei in the suit land along with her sister, defendant No.1 Partapi Devi aforesaid.

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The grouse of the plaintiffs, in a nut-shell, is that the suit property being coparcenary and they along with their mother Tikam Dei and sister Sur Dei were coparceners, therefore, coparcenary land could have not been bequeathed by way of any will. Otherwise also, said Smt. Tikam Dei used to reside with them and it is they, who had been looking after and maintaining her on the death of their father Madan Singh. Therefore, she had no occasion to bequeath her share in the suit property to defendant No. 1 Partapi Devi. The said defendant allegedly fabricated the will in connivance with her husband Akbar Singh and S/Sh. Roshan Lal Justa

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as well as Dina Nath and Murti Lal, after the death of Tikam Dei. Defendant No. 1 in connivance with her husband got the same attested in collusion with the Assistant Collector 2^nd Grade (Settlement), Rohroo to grab the suit land. The mutation was also got attested and sanctioned in favour of defendant No.1 on 19.12.1992 in connivance with Assistant Collector 2^nd Grade. The sale of the suit land by defendant No.1 in favour of defendants No. 2 to 4 through registered sale deed dated 23.02.1995 is also illegal, null and void as defendant No. 1 was not competent to alienate or transfer the suit property to the said defendants. Therefore, defendants No. 2 to 4 are stated to have not acquired any right, title or interest in the suit land on the basis of the sale deed. It is in this backdrop, declaration to the effect that the plaintiffs are owner in possession of the suit land measuring 38 bighas and that the will executed by deceased Tikkam Dei in favour of defendant No.1 being a forged and fictitious document does not create any right, title or interest in respect of the suit land in favour of Partapi Devi, defendant No.1

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and in favour of defendants No. 2 to 4 with consequential relief of permanent prohibitory injunction restraining defendants No. 1 to 5 from causing any interference in possession of the plaintiffs over the suit land in any manner whatsoever.

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Defendants No. 1 to 4 in written statement have raised preliminary objections qua maintainability of the suit, the same is time barred and no enforceable cause of action has accrued in favour of the plaintiffs to file the same against them. On merits, while admitting that the plaintiffs, deceased Tikkam Dei and Sur Dei had inherited the suit land from their predecessor-in-interest late Madan Singh and that the plaintiffs are issueless have further submitted that Negi Ram has nothing to do with the suit land nor is in any manner related to the plaintiffs, however, with a view to grab the suit land, he had managed the execution of the special power of attorney from them and on the basis thereof has filed the present suit falsely against the defendants. It is denied that deceased Tikkam Dei was not competent to alienate the suit land to defendants No. 2 to 4. In a

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family arrangement, defendants No. 1 and 5 were in possession of a portion of the suit land measuring 15 bighas. They have sold the same to the extent of their share to defendants No. 2 to 4. It is now the said defendants, who are in possession of the same. The suit land is not stated to be yet partitioned. The plaintiffs have also sold five bighas of land out of suit land to one Lalita Negi, who has also not been put in physical possession of a specific portion of the suit land, however, stepped into the shoe of the plaintiffs as joint owners. It is denied that the will executed by Tikkam Dei in favour of defendant No.1 was forged and fictitious and rather the same allegedly was genuine and a legal document. The plaintiffs, as such, have no right to challenge the same. It is also denied that the mutation in the name of defendant No.1 on the basis of will was got attested in connivance with Assistant Collector 2^nd Grade. Defendant No.1 being owner of the suit land to the extent of 3/8 share has rightly transferred the same in the name of defendants No. 2 to 4 by way of sale for consideration. They are not co-sharer of the suit land to

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the extent of 3/8 share. The suit, as such, has been sought to be dismissed.

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Replication was also filed. On the pleadings

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of the parties, following issues were framed:

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Whether the plaintiffs are owner in possession over the suit property, as alleged? OPP.

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Whether Smt. Tikkam Dei had no right to execute a will in the part of suit land, as alleged? OPP.

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Whether the sale deed to the part of suit land by defendant No. 1 in favour of defendant No.2 is illegal and void, as alleged? OPP.

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Whether the defendants interfere with the possession of the plaintiffs and going to alienate or create charge over the suit land, as alleged? OPP.

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Whether the suit is not maintainable, as alleged? OPD.

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Whether the plaintiffs are estopped to file the suit, as alleged? OPD.

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Whether the suit is time barred, as alleged? OPD.

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Whether the suit is bad under Section 10 C.P.C. as alleged? OPD.

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Relief.

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The plaintiffs in support of their case have

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examined their special power of attorney Negi Ram as

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PW-1 and stated that deceased Tikkam Dei had illegally bequeathed her share in the suit land in favour of defendant No.1 and likewise the said defendant had also unlawfully transferred the suit land to the extent of 3/8 share in favour of defendants No. 2 to 4. The order of mutation Ext. PW-1/B, according to him is also not binding upon the plaintiffs. The sale deed Ext. PW-1/C is also stated to be illegal. PW-2 is Hari Krishan, who remained Pradhan of local Gram Panchayat during the year 1985-1995, whereas, PW-3 Rattan Dass and PW-4 Desh Raj are the witnesses qua plaintiffs allegedly being in possession of the suit land. On the other hand, Vidya Singh has stepped into the witness box as DW-1 and defendants have also examined one Basant Lal as DW-2 in support of their case.

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Learned trial Judge on appreciation of the oral as well as documentary evidence available on record while answering issue No.1 partly in favour of plaintiffs, whereas, issues No. 2 to 4 in toto and issues No. 5 to 8 in negative i.e. against the defendants while holding the plaintiffs to be co-sharer of the suit land has

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dismissed the suit. Learned lower appellate Court, in appeal has affirmed the judgment and decree passed by learned trial Court and dismissed the appeal.

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The legality and validity of the impugned judgment and decree has been questioned before this Court on various grounds, however, mainly that the evidence available on record has been misread and misinterpreted and thereby recorded absolutely wrong findings. The findings recorded by learned lower appellate Court are also far fetched and unwarranted as well as based upon assumptions and presumptions. 10. An application registered as CMP No. 6517 of 2016 also came to be filed on behalf of the applicants/respondents under Section 41 Rule 27 read with Section 151 of the Code of Civil Procedure with a prayer to allow them to produce in evidence the copy of mutation No. 133 dated 18.06.2003, Annexure R-1, copy of mutation No. 214 again dated 18.06.2003, Annexure R-2, copy of Jamabandi for the year 2010-11, Annexure R-3, copy of Jamabandi for the year 2005-06, Annexure R-4, copy of misal hakiyat, Annexure R-5, copy

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of misal hakiyat, (amended) 1996-97, Annexure R-6 and copy of order passed by learned Sub Divisional Collector, Rohroo in an appeal preferred by the plaintiffs against the order of partition of the suit land, Annexure R- 7, whereby the appeal has been dismissed.

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The pleadings i.e. reply/rejoinder etc. in this application are complete and the same has also been considered along with main appeal. As a matter of fact, these documents now sought to be produced by way of leading additional evidence pertains to the partition of the suit land between the parties on both sides in the present lis and the entries qua the same in the revenue record. As a matter of fact, the respondents-applicants/ defendants by producing the additional evidence intends to show that the suit land during the pendency of the present lis stands partitioned amongst the share holders and they are now in possession of the land to the extent of their share allotted to each other in the partition. The partition proceedings have attained finality. Whether such evidence is essentially required for adjudication of the substantial questions of law, is a

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question to be taken into consideration at an appropriate stage in this judgment during the course of adjudication of the substantial questions of law as formulated.

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As a matter of fact, both the substantial questions of law revolve around the authenticity and genuineness of the will executed by deceased Tikkam Dai in favour of her grand daughter (daughter’s daughter) Pratapi Devi, defendant No.1. The challenge to the will is on the grounds inter-alia that the suit property being coparcenary property and the status of said Tikkam Dai to be that of a coparcener, she could have not bequeathed the suit property to the extent of her share in favour of defendant No.1. Also that will is the result of fraud and misrepresentation because Tikkam Dai residing with the plaintiffs and enjoying every amenity of life in their company, had no occasion to bequeath the suit property to the extent of her share to defendant No.1. Also that, husband of defendant No.1 in connivance with Assistant Collector 2^nd Grade, Rohroo

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has managed the execution and registration of the will in the name of the said defendant.

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Interestingly enough, the will has not seen the light of the day nor produced in evidence. The solitary statement of PW-1 Negi Ram, special power of attorney of plaintiff that the same is result of fraud and misrepresentation, hence illegal, cannot be believed to be a gospel truth and rather the onus was upon the plaintiffs to have proved with the help of cogent and reliable evidence that will was not a legal and genuine document and rather forged and fictitious. However, no such evidence has been produced. The remaining witnesses PW-2 Hari Krishan, PW-3 Rattan Dass and PW-4 Des Raj have not uttered even a single word in this regard. Even the record qua registration of will from the office of Assistant Collector 2^nd Grade, Rohroo has also not been sought to be produced in evidence. On the other hand, the entries in Jamabandi Ext. PW-1/D reveal that the suit property to the extent of share of Smt. Tikkam Dai was mutated vide mutation No. 423 dated 19.12.1992 in the name of defendant No.1 after being

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bequeathed by way of will. The remarks column of this document further reveals that mutation of the land measuring 14-5 bighas on its sale by defendant No.1 was attested and sanctioned in the name of defendants No. 2 to 4 on 28.03.1995. The copy of mutation No. 23 is Ext. PW-1/B. This document reveals that other share holders (plaintiffs etc.) though were summoned, however, did not appear. The mutation was attested and sanctioned after holding inquiry and recording statements of Roshan Lal Justa and two other witnesses namely Dina Nath and Murti Lal. The Assistant Collector on being satisfied qua the genuineness of the will, attested the mutation of the share of Tikkam Dai in the suit land in the name of defendant No.1. The said defendant, therefore, had acquired title in the suit land as a co-sharer vide sale deed Ext. PW-1/C. She had sold the same to defendants No. 2 to 4 vide registered sale deed Ext. PW-1/C. Mutation No. 27 was also sanctioned and attested in their name on 28.03.1995. No evidence is produced by the plaintiffs to show that the suit property was coparcenary or that Tikkam Dai could have not

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bequeathed the same in favour of defendant No.1. Being so, there is no question of mutation of the land in dispute attested and sanctioned in the name of defendant No.1, on the basis of will executed by Tikkam Dai, being illegal. As a matter of fact, it was for the plaintiffs to have challenged the genuineness and authenticity of the will in question, however, as noticed supra, they have failed to do so. When the plaintiffs have failed to produce any evidence to show that will was not a genuine document and rather forged and fictitious, it lies ill in their mouth to claim that both Courts below have ignored the provisions of law attracted in a case where execution of will is in dispute.

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The pleadings and the evidence produced by the defendants is cogent, reliable and convincing because as per their simple case, they pleaded in the written statement Tikkam Dai, a co-sharer in the suit land to the extent of ¼ share had rightly bequeathed her share in favour of defendant No.1 by way of registered will. This part of their case finds support from the order of mutation Ext. PW-1/B. The copy of registered will Ext. PW-

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1/C reveals that defendant No.1 had sold her share in the suit land to defendants No. 2 to 4 for consideration i.e. Rs. 85,000/-. The land so purchased by the said defendants was duly mutated in their name. Therefore, the documentary evidence itself is sufficient to arrive at a conclusion that the defendants have successfully pleaded and proved that Tikkam Dai had bequeathed her property by way of a legal and valid will to defendant No.1. The said defendant, in turn, has sold the same to defendants No. 2 to 4.

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Therefore, it cannot be said by any stretch of imagination that there were glaring discrepancies in the pleadings and evidence produced by the defendants, which have been ignored by both Courts below and on that count, the findings recorded have vitiated. In this view of the matter, the additional evidence in the nature of subsequent events is not required to decide the substantial questions of law as formulated in this appeal. The application, as such, is dismissed. Therefore, no question of law arises for adjudication in this appeal muchless to speak of substantial questions of law as

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aforesaid, rather both Courts below have dismissed the suit on appreciation of the evidence available on record in its right perspective. The impugned judgment and decree, therefore, calls for no interference by this Court and the same is accordingly affirmed.

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In view of what has been said hereinabove, this appeal fails and the same is accordingly dismissed. However, with no orders so as to costs.

Sunak Ram v. Partapi Devi

Case brief

What is this about?

What did the court decide?

Sunak Ram v. Partapi Devi

Case brief

What is this about?

What did the court decide?

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