RSA No. 166 of 2001. Case: Jawahar Singh and Diwan Singh Both sons of late Shri Lalman, resident of Village Bhangrotu, Tehsil Sadar, District Mandi, H.P. Vs Kishan Singh and Ors.. Himachal Pradesh High Court
| Case Number | RSA No. 166 of 2001 |
| Counsel | For Appellant: Mr. Harish Behl, Advocate and For Respondents: Mr. Sanjeev Kuthiala, Advocate |
| Judges | Sanjay Karol, J. |
| Issue | Code of Civil Procedure, 1908 - Rules 13, 3, 4, 7; Section 100; Indian Evidence Act, 1872 - Sections 114, 68; Indian Succession Act, 1925 - Section 63 |
| Judgement Date | December 01, 2012 |
| Court | Himachal Pradesh High Court |
Judgment:
Sanjay Karol, J.
-
This is plaintiffs' Regular Second Appeal filed under Section 100 of the Code of Civil Procedure. Plaintiffs-appellants Shri Jawahar Singh and Shri Diwan Singh (herein after referred to as the plaintiffs) filed Civil Suit No. 71/90, titled Jawahar Singh and another versus Kishan Singh and others, for declaration and injunction as a consequential relief, against defendants-respondents Shri Kishan Singh and others (hereinafter referred to as the defendants, which expression also includes their legal heirs). The same was dismissed by the Court of Sub Judge 1st Class, Court No. 2, Mandi, in terms of judgment and decree dated 20th November, 1993. In the plaintiffs' Civil Appeal No. 53 of 1996/94, titled Jawahar Singh and another versus Kishan Singh and others, learned Additional District Judge, Mandi, has affirmed the judgment and decree, in terms of its judgment and decree dated 27th November, 2000. The present appeal stands admitted on the following substantial questions of law:
-
Whether in the facts and circumstances of the case, the learned courts below are right in holding the will to be validly executed ignoring the pleadings as well as the evidence brought on record with regard to the will being shrouded in suspicious and unnatural circumstances?
-
Whether in the absence of necessary ingredients, required as per section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act being on record, the ld. Courts below are right in holding the will to be validly executed?
-
I have heard Mr. Harish Behl, learned counsel for appellants, Mr. Sanjeev Kuthiala, learned counsel for respondents and perused the record. Learned counsel have relied upon various decisions rendered by various Courts, including the Apex Court.
-
In support of his contentions, Mr. Behl has referred to and relied upon the decision of the apex Court rendered in Shankarsan Parida (dead) and his legal heirs Ramphamani Dei and others versus Laxmindhar Nayak, AIR 1991 Orissa 23; Ramchandra Rambux versus Champabai and others, AIR 1965 SC 354; Gorantla Thataiah versus Thotakura Venkata Subbaiah and others, AIR 1968 SC 1332; and Smt. Indu Bala Bose and others versus Manindra Chandra Bose and another, (1982) 1 SCC 20. He has specifically invited my attention to the evidence led by the plaintiffs, i.e. statement of plaintiff Shri Jawahar Singh (PW-1), Shri Brij Lal (PW-2) and Shri Thopa (PW-3).
-
In rebuttal, apart from taking me through the record, Mr. Kuthiala, learned counsel for the beneficiaries, has referred to and relied upon the decision rendered by this Court in Shri Ishwar Datt versus Smt. Leela Devi and others, 1997 (1) SLJ 684, and the apex Court in Pentakota Satyanarayana and others versus Pentakota Seetharatnam and others, (2005) 8 SCC 67, Adivekka and others versus Hanamavva Kom Venkatesh (Dead) by LRs. and another, (2007) 7 SCC 91; Gopal Swaroop versus Krishna Murari Mangal and others, (2010) 14 SCC 266; and Saroja versus Santhil kumar and others, (2011) 11 SCC 483.
-
Plaintiffs filed a suit for declaration to the effect that the Will dated 21.9.1981 allegedly executed by Smt. Kanchnu in favour of Shri Kishan Singh (defendant No. 1) and Shri Manjit Singh (defendant No. 2) is forged, fictitious, null and void. Defendants No. 3 to 7 are the legal heirs of deceased Kanchnu.
-
Undisputed facts, which emerge from the record, are as follows. Smt. Kanchnu owned approximately 40 bighas of land in the State of Himachal Pradesh. She had six children (two sons Shri Inder Singh and Shri Lalman, and four daughters). In the year 1971, she gifted the said land in favour of her two sons, in equal shares. Sometimes in the year 1975, Shri Lalman died intestate. Thus, by virtue of succession, Smt. Kanchnu inherited the estate of Shri Lalman alongwith his other legal heirs, including plaintiffs Shri Jawahar Singh and Shri Diwan Singh, sons of Shri Lalman. With respect to the share which she thus inherited (which is approximately 5 bighas), Smt. Kanchnu executed registered Will dated 21.9.1981 in favour of defendants No. 1 and 2 (Shri Kishan Singh and Shri Manjit Singh, sons of defendant No. 3 Shri Inder Singh). On 18.12.1988, Smt. Kanchnu expired and on the basis of the said Will, entries pertaining to the mutation of inheritance were attested by the revenue authorities. Aggrieved thereof, plaintiffs filed the instant suit for declaration on 11.6.1990.
-
It has also come on record that after the death of her first husband, Smt. Kanchnu again got married to Shri Pat, who also executed a Will dated 8.9.1978 in favour of the present defendants No. 1 and 2. It may be only noticed that valid execution of the said Will is subject matter of separate proceedings.
-
The instant suit was filed by the plaintiffs, inter alia taking the plea that after the death of their father Shri Lalman, they were thrown out of their ancestral house by their uncle Shri Inder Singh and since then they have been residing in the house of their maternal grandfather. Despite the same, plaintiffs continued to be on visiting terms with the defendants. Smt. Kanchnu was weak and not enjoying good health. Since she was staying with Shri Inder Singh and she being a rustic and illiterate woman, Shri Inder Singh managed to get the Will executed in favour of his sons. A plea of fraud, undue influence, coercion, misrepresentation and deception played by Shri Inder Singh and his sons was taken. Significantly, plaintiffs also pleaded that the Will was forged, false and fictitious and was not executed by Smt. Kanchnu at all.
-
Contesting defendants resisted the suit, clearly denying the averments made in the plaint.
-
Based on the pleadings of the parties, trial Court framed the following issues:
-
Whether the will dated 21.9.81 No. 128 was executed by Smt. Kanchanu in favour of the defendants no. 1 and 2, is valid one? OPD 1 and 2
-
If issue no. 1 is not proved in affirmative whether the will no. 128 dated 21.9.81 is forged, false and fictitious and procured by misrepresentation of facts, as alleged? OPP
-
Whether the plaintiffs are entitled for the relief as prayed for? OPP
-
Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD 1, 2.
-
Whether there is no enforceable cause of action against the defendants? OPD
-
Relief.
-
Appreciating the evidence led by the parties, trial Court dismissed the suit, holding the Will to have been validly executed by Smt. Kanchnu in favour of defendants No. 1 and 2. The first Appellate Court upheld such findings of fact.
-
The concurrent findings of fact unless it is shown that there is material irregularity, perversity or illegality with regard to the same cannot be interfered with.
-
The ratio of law laid down by the Apex Court in Chunilal V. Mehta & Sons Ltd. versus Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, even post amendment of the provisions of Section 100 CPC, stands reiterated by the Apex Court, and in its various judicial pronouncements it is held that it would be open for the High Court to interfere with the findings of facts recorded by the Court below only where such findings are vitiated by;
(i) non-consideration of relevant evidence, {Jagdish Singh vs. Nathu Singh, (1992) 1 SCC 647 & Ram Das vs. Gandia Bai, (1997) 1 SCC 74};
(ii) conclusion is based on no evidence, {Ramanuja Naidu vs. V. Kanniah Naidu and another, (1996) 3 SCC 392, Neelkantan vs. Mallika Begum, (2002) 2 SCC 440}.
(iii) Conclusions are biased and evidence is not sufficient to support the same; {Ramanuja Naidu (supra)};
(iv) material evidence having a direct impact on the decision of the case was ignored; {Ram Das (supra) & Bharatha Matha vs. R. Vijaya Renganathan, (2010) 11 SCC 483};
(v) misread evidence which led to miscarriage of justice, {Rohini Prasad vs. Kasturchand (2000) 3 SCC 668};
(vi) Rejected the witness accepted by the trial Court, {Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar, (1999) 3 SCC 722};
(vii) Findings are erroneous being contrary to the mandatory provisions of law applicable/settled by the Apex Court, {Kondiba Dagadu Kadam (supra)};
(viii) assumed jurisdiction not vested in the Court {Kondiba...
To continue reading
Request your trial