Vidya Devi Vs Shakuntla Devi

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

RSA No.289 of 2018 alongwith RSA Nos.295 & 309 of 2018 Reserved on: 22.03.2024 Pronounced on: 03.05.2024

RSA No.289 of 2018
Vidya Devi & Others		……Appellants
	Versus
Shakuntla Devi & Others		…Respondents
_______________________ RSA No.295 of 2018	______________	____________
Vidya Devi & Others		……Appellants
	Versus
Jagir Singh & Others		…Respondents
_______________________ RSA No.309 of 2018	______________	____________
Vidya Devi & Others		……Appellants
	Versus
Shakuntla Devi & Others		…Respondents
_______________________ *Coram:*	______________	_____________

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Hon’ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

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Whether approved for reporting? For the appellants : Mr. Ajay Chandel, Advocate, in all the appeals. For the respondents : Mr. Ashwani K. Sharma, Sr. Advocate with Mr. Ishan Sharma, Advocate, in all the appeals. _______________________________________________________

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M.S. Ramachandra Rao, Chief Justice .

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Heard learned counsel for the parties.

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1. Since common issues arise between the parties in the above appeals, the same are being disposed of by this common order.

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1. The appellants in these three RSAs are the legal heirs of the plaintiff Gian Singh.

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1. The parties will henceforth be referred to as per their array in the trial Court.

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The relationship between the parties

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1. Gian Singh is the son of Sh. Kishan Singh through his wife Ramku Devi.

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1. Kishan Singh had another wife by name Sairo Devi.

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1. Kishan Singh had two sons through Sairo Devi by name Jagir Singh & Bachitter Singh and two daughters by name Kartari Devi & Sheelan Devi.

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1. Kanta Devi is the wife of Jagir Singh and Shakuntla Devi is the wife of Bachitter Singh.

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1. Kishan Singh’s father is Gopala and Kishan Singh had two brothers by name Bishomber and Bansi Lal. The father of Gopala is Ram Saran.

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The case of the plaintiff

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1. The case of the plaintiff Gian Singh (now deceased) is that Kishan Singh inherited certain properties from his grand-father Ram Saran and the same were ancestral properties; but treating them as self acquired properties, Kishan Singh had executed (a) on 27.2.2001 a registered will bequeathing certain properties to Jagir Singh, Bachitter Singh & Sairo Devi;

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(b) on 31.07.2001 two Gift Deeds and two Sale Deeds

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gifting and transferring for consideration certain properties in favour of Smt. Kanta Devi and Smt. Shakuntla Devi.

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1. The plaintiff contended that since the property is an ancestral property, Kishan Singh could not have executed either the registered Will dt. 27.02.2001 or the two Gift Deeds dt. 31.07.2001 or the two Sale Deeds dt. 31.07.2001.

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1. He therefore filed on 26.12.2001 Civil Suit No.390 of 2001 before the Civil Judge (Sr. Division), Court No.1, District Hamirpur, Himachal Pradesh, seeking possession of the lands covered by the Gift Deeds and the two Sale Deeds.

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1. The plaintiff also filed Civil Suit No.203 of 2003 on 01.08.2003 before the same Court seeking declaration that he is the legal heir of Kishan Singh and the defendants have no right

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over the properties, which are subject matter of the said suit, and that Kishan Singh had no authority to execute the registered Will on 27.02.2001.

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1. He impleaded Jagir Singh, Bachitter Singh, Kartari Devi, Sheelan Devi and Sairo Devi as defendants in the three suits. The case of the defendants

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1. The defendants contested the suits disputing the pleas of the plaintiff and asserting that the property, in respect of which Kishan Singh executed the above documents, was not an ancestral property and but was his self acquired property.

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1. Parties led oral and documentary evidence in support of their respective pleadings.

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The judgments of the trial court

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1. On 31.08.2012, the trial Court decreed Civil Suit No.390 of 2001 and Civil Suit No.392 of 2001 and on 10.01.2013 decreed Civil Suit No.203 of 2003 and gave findings in all the three suits that the properties, which are subject matter of the Will, the two Gift Deeds and the two Sale Deeds are ancestral/ coparcenery properties, which Kishan Singh inherited from his father.

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The First Appeals

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1. Challenging the same, defendants filed Civil Appeal No.166/12 RBT No.41/13, 99/14; Civil Appeal No.167/12 RBT No.40/13, 100/14; & Civil Appeal No.52/13 RBT No.12/13, 146/14, before the Additional District Judge, Hamirpur.

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The judgment in the First Appeals

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1. All these three First Appeals were allowed by the lower Appellate Court setting aside the judgments of the trial Court and dismissing the three civil suits filed by the plaintiff.

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1. The lower Appellate Court held that the evidence on record was not sufficient to establish the plea of the plaintiff that the suit property in the hands of Kishan Singh was ancestral property.

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The present RSAs

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1. Challenging the same, these RSAs have been filed by the plaintiff’s legal heirs.

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1. These appeals were admitted on 24.11.2023 to consider the following substantial questions of law:

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“RSA No.289 of 2018

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This appeal is admitted to consider the following substantial questions of law:

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1. Whether the learned First Appellate Court erred in not holding the property in the hands of deceased Kishan Singh to be ancestral and coparcenary property and thereby erred in reversing the well reasoned findings returned by the learned Trial Court? 2.

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2. Whether the learned First Appellate Court erred in not holding that the property being ancestral and coparcenary could not have been gifted as per prevalent custom?

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RSA No.295 of 2018

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This appeal is admitted to consider the following substantial questions of law:

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1. Whether the learned First Appellate Court erred in not holding the property in the hands of deceased Kishan Singh to be the ancestral and coparcenary property and thereby erred in reversing the well reasoned findings returned by the Learned Trial Court?

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2. Whether the learned Appellate Court below has failed to appreciate the oral evidence on record as well as the customary law prevalent in the area to come to the wrong conclusion that the custom as alleged regarding Will in view of the provisions of Section 30 read with Section 4 of the Hindu Succession Act, 1956 stands abrogated?

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3. Whether the learned First Appellate Court below erred in not holding that the property being ancestral and coparcenary cannot be disposed of by way of Will as per prevalent custom as well as Hindu Succession Act?

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4. Whether the Lower Appellate Court’s finding regarding validity of the Will executed by deceased Kishan Singh is perverse?

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RSA No.309 of 2018

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This appeal is admitted to consider the following substantial questions

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of law:

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1. Whether the learned First Appellate Court erred in not holding the property in the hands of deceased Kishan Singh to be the ancestral and coparcenary property and thereby erred in reversing the well reasoned findings returned by the Learned Trial Court?

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2. Whether the learned First Appellate Court should have held that the property being ancestral and coparcenary, if sale is not permissible as per law?”

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The applications for additional evidence

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1. The appellants/plaintiffs have filed CMP No.14788 of 2019 in RSA No.289 of 2018, CMP No.2508 of 2020 in RSA No.295 of 2018 & CMP No.14794 of 2019 in RSA No.309 of 2018, under Order 41 Rule 27 CPC.

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They contend that they wish to produce as additional evidence the documents annexed to the said applications which support their plea that the properties in question are ancestral properties in the hands of Kishan Singh; that the properties had been inherited by Gopala from his father Ram Saran and were thus ancestral in nature in the hands of Kishan Singh, the son of Gopala and his three sons; and so he could not have disposed of the same by way of a Will, Sale or Gift.

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1. It is also contended that these documents would enable this Court to pronounce judgment and to do full, complete and

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effectual justice to the parties; that the additional evidence was required to answer the subject matter and to pronounce the judgment on the material issue as to the nature of the property.

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1. It is also contended that the documents are essential for deciding the rights of parties and they are public documents, which do not require any proof.

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According to the appellants, the trial Court as well as the lower Appellate Court had never asked the plaintiff to bring the said documents and the appellants were not aware of the procedural technicalities as to what documents were required to be produced on record to prove that the nature of the land is ancestral property.

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1. It is stated that the appellants could not produce the same previously as they were not well versed with the intricacies of the law and despite due diligence, they could not produce the said documents.

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1. Counsel for the appellants also contended that the said documents would enable this Court to pronounce the judgment and to do full, complete and effectual justice to the parties and so, these applications ought to be allowed.

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1. The counsel for the respondents/defendants opposed the said application and contended that the plaintiffs/appellants cannot be allowed to fill up the lacunae in their evidence; that they had not shown any due diligence in producing the same when the case was pending in the trial Court or lower appellate Court; and the applications therefore should be dismissed.

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1. We shall first deal with these applications.

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1. Order 41 Rule 27 CPC, states as under:-

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“27. Production of additional evidence in Appellate Court-(1)

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The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

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(a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

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(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed,

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or]

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(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

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the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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(2) Whether additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

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In Arjan Singh vs. Kartar Singh¹ , the Supreme Court held that the true test for allowing an application, seeking to adduce additional evidence, is “whether the appellate court was able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.”

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1. In Union of India v. Ibrahim Uddin² , the Supreme Court summed up the law on the aspect in the following terms:

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“36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Redd y34, Municipal Corpn. of Greater

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1 AIR 1951 SC 193

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2 (2012) 8 SCC 148

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Bombay v. Lala Pancham 35, Soonda Ram v. Rameshwarla l36 and Syed Abdul Khader v. Rami Redd y37.)

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37. The appellate court should not ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide Haji Mohammed Ishaq v. Mohd. Iqbal and Mohd. Ali and C o.38) 38. Under Order 41 Rule 27 CPC, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence. (Vide Lala Pancham 35.)

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39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence

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in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava39 and S. Rajagopal v. C.M. Armugam40. )

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40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a “substantial cause” within the meaning of this Rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

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41. The words “for any other substantial cause” must be read with the word “requires” in the beginning of the sentence, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this Rule will apply e.g. when evidence has been taken by the lower court so imperfectly that the appellate court cannot pass a satisfactory judgment.

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42. Whenever the appellate court admits additional evidence it should record its reasons for doing so (sub-rule (2)). It is a salutary provision which operates as a check against a too easy reception of evidence at a late stage of litigation and the statement of reasons may inspire confidence and disarm objection. Another reason of this requirement is that, where a further appeal lies from the decision, the record of reasons will be useful and necessary for the court of further appeal to see, if the discretion under this Rule has been properly exercised by the court below. The omission to record the reasons must, therefore, be treated as a serious defect. But this provision is only directory and not mandatory, if the reception of such evidence can be justified under the Rule.”

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(emphasis supplied)

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1. I may point out that these applications are moved to place on record the documents for the first time after the appeals had been filed in 2018 in relation to Civil Suits, which have been instituted on 26.12.2001 and 01.08.2003, and no attempt had been made prior to 2018 either in the trial Court or in the lower Appellate Court to bring these documents on record.

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1. I, therefore, do not accept the plea of the appellants that the plaintiff had exercised due diligence, and in spite of that he could not produce this evidence either in the trial Court or in the lower Appellate Court.

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1. Unless I find that I would not be able to pronounce the judgment on the material before me without taking into consideration the additional evidence sought to be adduced or that I will not be able to pronounce the judgment in a more satisfactory manner without looking into the additional evidence, I cannot allow these applications.

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1. I do not feel that, in the facts and circumstances of these appeals, it is necessary for me to consider the additional evidence now brought to the notice of this Court in these applications for pronouncing judgment in the matter in a satisfactory manner.

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1. I am of the opinion that the appellants cannot be permitted to fill up the lacuna in their evidence at this late point of time in spite of having ample opportunity to bring this material on record both in the trial Court as well as the lower Appellate Court.

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1. Therefore, these applications are dismissed.

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Consideration by the Court of merits

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1. Coming to the RSAs themselves, I may point out that in the judgment rendered by the trial Court in Civil Suit No.203 of 2003 on 10.01.2013, it had relied upon the findings recorded in Civil Suit No.390 of 2001 & Civil Suit No.392 of 2001, both decided on 31.08.2012, and took a view that the said judgments operate as res judicata and bind it.

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1. It overlooked the obvious fact that by that time, the judgments in both the Civil Suits had been appealed on 03.10.2012 itself to the Additional District Judge, Hamirpur, and the same had not attained finality. It cannot be disputed that the principle of res judicata would be inapplicable if the judgment which is sought to be relied upon had not attained finality. Section 11 of the CPC, itself, states that no Court should try any suit or issue in which matter directly or substantially in issue has been

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directly and substantially in issue in a former suit between the same parties in a Court competent to try such subsequent suit and has been heard and finally decided by such Court.

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1. It appears that this Principle of Law has not been noticed by the trial Judge while delivering the judgment in Civil Suit No.203 of 2003.

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1. The issue as to the nature of the property was undoubtedly a common issue in all the three suits and they all came to be tried by the same Court and the judgment was pronounced by the same Judge.

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1. Moreover, the trial Court while delivering the judgment in Civil Suit No.390 of 2001 and Civil Suit No.392 of 2001 having rightly observed that the onus was on the plaintiff to prove that the property was ancestral, came to the conclusion on the basis of Jamabandies for the year 1954-55 that the suit land in question had come into the hands of Kishan Singh by way of partition from his father Gopala.

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1. Admittedly the previous Jamabandies had not been filed by the plaintiff showing inheritance by Gopala from his father Ram Saran.

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1. This in my opinion was not a correct finding of fact, since Kishan Singh could have obtained the property by partition with his brothers, if the property was the self acquired property of his father Gopala also, and no evidence had been adduced by the plaintiff to show as to how Gopala obtained the properties. This was the view taken by the lower Appellate Court.

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1. The lower Appellate Court on perusal of the evidence on record, came to the conclusion that the property can be traced to Gopala during 1910-11 and there was no document on record showing as to how Gopala acquired the property.

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1. In my opinion, it rightly came to the conclusion that in the absence of evidence, the property in the hands of Gopala, has to be taken his self acquired property. It therefore rightly concluded that the self acquired property of Gopala devolved on Kishan Singh and his two brothers and continued to be self acquired property in their hands.

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1. The lower Appellate Court had also considered Ex.D-9, which is a Will executed by Gopala, whose translation is Ex.DW-9/1 was admittedly implemented in the revenue record long back without any objections and that this established that the

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intention of Gopala was that the legatees under the Will should

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get the properties as self acquired properties only.

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The lower Appellate Court also considered the evidence of the plaintiff as PW-1 and noted that he was living separately since 1993 in Tika Karohta where his wife had inherited property from her father and concluded that the plaintiff was unlikely to have rendered any services to his father Kishan Singh. It believed the evidence of the defendants that the plaintiff’s conduct was callous and full of hatred and since he never bothered to look-after Kishan Singh nor provided any maintenance and intentionally neglected him, Kishan Singh executed the above documents and gave substantial properties to the defendants and gave a meager portion only to the plaintiff under the Will.

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1. The findings recorded by the lower Appellate Court are based on evidence on record and supported by reasons, which cannot be said to be either perverse or based on no evidence.

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1. Therefore I hold that the findings recorded by the 1^st Appellate Court are proper and that it rightly held that the property in the hands of Kishan Singh was not ancestral or coparcenery property and was self acquired property and he was competent

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to execute the Will, the two Sale Deeds and the two Gift Deeds

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in question.

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