Dismissed

Jagdish Chand v. Bhagi Rath (Deceased through LRs Kamlesh Kumar and Others)

Himachal Pradesh HC10 Jul 2024RSA/57/2024

Case brief

AI extract

What is this about?

In this second appeal challenging the dismissal of a declaration suit, the appellant alleged that suit land was ancestral Hindu Undivided Coparcenary property and that a Will and sale deed were fraudulent. The High Court upheld findings that the appellant failed to prove joint family status, dismissing the appeal. No substantial question of law arose.

What did the court decide?

Second appeal dismissed; concurrent findings that Suit of declaration was dismissed and appeal by the plaintiff were dismissed are upheld.

Jagdish Chand Vs Bhagi Rath (Deceased… — Succession and Inheritance | Himachal Pradesh HC (2024)

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2024:HHC:5115

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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RSA No. 57 of 2024

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Decided on: 10.07.2024

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Jagdish Chand .…Appellant

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Versus

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Bhagi Rath (now deceased) son of late Sh. Dandu Ram alias Sohan Lal through Legal heirs namely Kamlesh Kumar and others …Respondents Coram

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The Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

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Whether approved for reporting?¹ For the appellant : Mr. Neel Kamal Sharma, Advocate Advocate. For the respondents : Mr. Ajay Sharma, Senior Advocate with Ms. Kavita Kajal, Advocate, for respondents No. 1(a), 1(c) and 1(d). Ajay Mohan Goel, Judge (Oral)

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By way of this regular second appeal, the appellant/ plaintiff has assailed the judgments and decrees passed by the learned Courts below, in terms whereof, the suit for declaration filed by the plaintiff that the suit land was Hindu Undivided Coparcenary property in the hands of the predecessor-in-interest of the parties, namely, Sh. Dandu Ram and Will dated 11.12.2006 and sale deed No. 518, dated 17.06.2005, executed by Dandu Ram, were fraudulent, fabricated, fictitious and not binding upon

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1 Whether reporters of the local papers may be allowed to see the judgment?

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the plaintiff and was liable to be set aside, was dismissed by the learned Trial and the appeal also met the same fate.

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The case of the plaintiff was that the suit land measuring 33 kanals, 0-9 marlas, situated in Jahu Khurd, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. and land comprised in Khata No. 294, Khatauni No. 318, Khasra No. 749, measuring 5 kanals 16 marlas, to the extent of 1/3^rd share, measuring one kanals 19 marlas, situated in Tika Jahu Khurd, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. was ancestral, Hindu Undivided Coparcenary property, in the hands of the predecessor-in-interest of the parties, namely, Sh. Dandu Ram. According to the plaintiff, the parties being the first class heirs of deceased-Dandu Ram, the suit property was deemed to have been vested in them in equal shares. Shri Dandu Ram before his death was not keeping good health and was bed ridden. He was not in a sound disposing state of mind, yet, defendants No. 1 and 2, succeeded in procuring a fabricated Will dated 11.12.2006, allegedly executed by Shri Dandu Ram. The plaintiff learnt about this Will in the month of June, 2009 and he also came to know that a sale deed was also executed by Dandu Ram in favour of defendants No. 3 and 4 to the extent of land mentioned therein at the back of the plaintiff. As per plaintiff, sale deed was without

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any legal necessity and was a result of fraudulent and undue influence. As per plaintiff, on the basis of sale deed and Will under challenge, the defendants were trying to forcibly dispossess the plaintiff from the suit land and also making an attempt to alienate the suit property in favour of third parties, hence the suit.

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The stand of the defendants was that the defendants No. 1 and 2 were the owners of the suit land in terms of Will dated 11.12.2006, which was duly executed in their favour by Sh. Dandu Ram before his death. It was denied that Shri Dandu Ram was not keeping good health and was not in sound disposing mind so as not to execute the Will. It was also the stand of the defendants that Shri Dandu Ram, in his lifetime, had validly sold the land comprised in Khasra No 1930/1672/1 in favour of defendants No. 3 and 4 for a consideration amount of Rs.48,000/out of legal necessity and earlier Will being relied upon by the plaintiff dated 16.06.1997 stood superseded by the last Will executed by Shri Dandu Ram.

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On the basis of pleadings of the parties, learned Trial Court framed the following Issues:-

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Whether the plaintiff is entitled to the relief of declaration that the suit land was Hindu undivided

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co-parcenary property in hands of Dandu Ram alias Sohan Lal? OPP.

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Whether Will dated 11.12.2006 executed by deceased Dandu Ram is result of fraud and hence not binding upon plaintiff? OPP

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Whether sale deed No. 518, dated 17.06.2005, executed by deceased Dandu is also result of fraud fabrication and null and void? OPP

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Whether plaintiff along with defendants No. 1 and 2 is entitled to inherit the estate of deceased Dandu Ram on the basis of Will dated 16.06.1997 in equal share as alleged? OPP

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Whether the plaintiff is entitled to the relief of permanent prohibitory injunction? OPP

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Whether plaintiff is entitled to joint possession as prayed? OPP

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Whether Will dated 16.06.1997 stood cancelled by virtue of execution of Will dated 11.12.2006? OPD

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Whether suit of the plaintiff is not maintainable in its present form? OPD

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Whether there lies no cause of action and locus standi in favour of the plaintiff to file the present suit? OPD

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Whether defendants are entitled to special costs under Section 35-A of CPC? OPD.

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Relief.

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On the basis of evidence that has been led by the parties in respect of their respective cases, the Issues have been

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decided by learned Trial Court as under:-

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Issue No. 1 : No Issue No. 2: No Issue No. 3: No Issue No. 4: No Issue No. 5: No Issue No. 6: No Issue No. 7: Yes Issue No. 8: No Issue No. 9: No Issue No. 10: No Relief : Suit of the plaintiff is dismissed as per operative part of this judgment.

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With regard to Issue No. 1, learned Trial Court held that whereas it was the contention of the plaintiff that the suit land was undivided coparcenary Hindu property and onus was upon him to prove this fact, however, the plaintiff himself in entering the witness box, in his cross examination stated that he was not aware as to what was written in his affidavit Ext. PW6/A, which was tendered as his examination-in-chief, in which, he had reiterated the contents of the plaint. On these bases, learned Trial Court held that the plaintiff failed to prove that the suit land was undivided joint Hindu Coparcenary property in the hands of deceased-Dandu Ram. With regard to the validity of Will Ext. DW1/A, learned Trial Court held that in order to remove the suspicion shrouding the Will Ext. DW1/A, defendants No. 1 and 2 examined DW3 Jagdish and DW4 Suresh Kumar, who were witnesses to the Will Ext. DW1/A and its endorsement Ext. DW1/B. It also took note of the fact that PW-2, R.L. Sharma, who was the identifier of the testator deceased-Dandu Ram in the Will identified the signatures of deceased-Dandu Ram upon Ext. DW1/A. It took note of the fact that the attesting witnesses deposed that the Will was executed by the testator and he was in sound disposing state of mind at the time of execution of the Will and that the Will was drafted at the instance of its testator and

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after the Will was drafted, the testator accepted the same to be correct and only thereafter it was signed and registered. Defendants also examined DW7 Padma Devi, wife of Shri B.D. Sharma, who was the scribe of the Will and said Padma Devi duly identified the handwriting and signatures of her husband Shri B.D. Sharma on the Will Ext. DW1/A. It was on these bases that learned Trial Court held that the Will Ext. DW1/A was a duly executed Will. With regard to the sale deed in issue, learned Court held that whereas the plaintiff was not able to prove that the suit land was subject matter of joint undivided Hindu Coparcenary property, defendants No. 3 and 4, in order to prove the sale deed had examined DW1, who exhibited the relevant record from the office of Registrar Bhoranj and he also deposed that he had seen the original sale deed in the Court and its certified copy Ext. DW1/C and its endorsement Ext. DW1/D were correct as per record. These defendants also examined Smt. Padma Devi as DW7, who was wife of Sh. B.D. Sharma, the scribe of the sale deed, who identified the handwriting of Shri B.D. Sharma on the sale deed Ext. DW1/C. Defendants No. 3 and 4 also examined DW6 Smt. Sushila Parmar, Advocate, who had identified Dandu Ram and it was she, who alongwith R.L. Sharma, had signed the Will. Learned Trial Court also took note of the fact that the sale

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deed was duly registered before the Sub Registrar where it was duly read over to Dandu Ram before registration, who accepted the same to be correct and put his signatures upon it. On the bases of these findings, the suit was dismissed by the learned Trial Court.

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Learned First Appellate Court by way of a reasoned judgment upheld the findings of the learned Trial Court after reappreciating the entire pleadings and evidence on record. Feeling aggrieved, the plaintiff has filed this regular second appeal.

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Having heard learned Counsel appearing for the parties and having carefully gone through the judgments and decrees passed by the learned Courts below, this Court does not find that there is any occasion for this Court to interfere with the judgments and decrees passed by learned Courts below. The foundation of the case of the plaintiff was that the suit land was joint Hindu Coparcenary property and therefore, Dandu Ram was not legally entitled to either execute the Will or to sell the suit property. There are concurrent findings returned by learned Courts below that the plaintiff failed to prove that the suit land was joint Hindu Coparcenary property. It could not be demonstrated before this Court that the concurrent findings returned by learned Courts below were perverse. In fact, when it is

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borne out from the record that the plaintiff deposed in the Court that he was not aware as to what was contained in the affidavit which was tendered by him as his examination-in-chief, which was a total cut and paste of the plaint, in which, it was averred that the suit property was joint Hindu Coparcenary property, findings returned by the learned Courts below that the plaintiff failed to prove this fact, cannot be faulted with. Similarly, both the learned Courts below have dwelled on the validity of the execution of the Will as well as sale deed in detail, as has also been referred by me hereinabove. The execution of the Will was duly proved by defendants No. 1 and 2 before learned Courts below by producing the marginal witnesses as well as the wife of the scribe of the Will, as also the witnesses who identified the testator. Registration of the Will was also duly proved in the Court by the said defendants. Similarly, the execution of the sale deed was also proved by defendants No. 3 and 4 by leading cogent evidence, including the examination of wife of the scribe of the sale deed, the witness to the execution of the sale deed as well as the officials who proved the registration of the sale deed. On the other hand, no evidence worth its name was led by the plaintiff except his bald assertion that the suit property was joint undivided Hindu coparcenary property and it could not have been either willed or sold by late

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Dandu Ram. In this background, the findings which have been returned by learned Courts below while dismissing the suit as well as the appeal, being based on the record of the case and further being pure and simple findings of fact, call for no interference and further as this Court does not find any substantial question of law involved in this appeal, the same is accordingly dismissed. No order as to costs. Pending miscellaneous application(s), if any, also stand disposed of accordingly.

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July 10, 2024 (narender)

Jagdish Chand v. Bhagi Rath (Deceased through LRs Kamlesh Kumar and Others)

Case brief

What is this about?

What did the court decide?

Jagdish Chand v. Bhagi Rath (Deceased through LRs Kamlesh Kumar and Others)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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