RSA No. 3746 of 2013 (O&M). Case: Ram Piari Vs Sarla Mukherjee and Ors.. High Court of Punjab (India)
| Case Number | RSA No. 3746 of 2013 (O&M) |
| Counsel | For Appellant: R.L. Batta, Senior Advocate and Nikhil Batta, Advocate and For Respondents: Sapna Seth, Navdeep Klair, Advocates for Kajal Chandra, Advocate |
| Judges | Amol Rattan Singh, J. |
| Issue | Code of Civil Procedure, 1908 (CPC) - Order XLI Rule 27; Section 100; Indian Evidence Act, 1872 - Sections 64, 65, 68, 68(c); Indian Succession Act, 1925 - Sections 63, 63(a), 63(b), 63(c) |
| Judgement Date | March 08, 2017 |
| Court | High Court of Punjab (India) |
Judgment:
Amol Rattan Singh, J.
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This is the second appeal filed by the first defendant (now represented by her LRs) in a suit filed by respondent No. 1 herein, i.e. Sarla Mukherjee.
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Both, the plaintiff, as also defendant No. 1 (appellant herein) were sisters, with the other respondents herein also being legal representatives of the other two sisters of the plaintiff-respondent No. 1 (hereinafter to be referred to as "the plaintiff). In her suit, the plaintiff sought possession of 1/4th share of the suit property by partition thereof and further sought rendition of accounts in respect of the said property from the 1st defendant.
The suit property is a house bearing No. EH-197-A, Civil Lines, Jalandhar, originally owned by the father of the parties, i.e. the late Dwarka Nath Mishra. The dispute actually revolves around the validity of the will stated to have been executed by Shri Dwarka Nath Mishra on 26.09.1989.
Dwarka Nath Mishra is stated to have been ill towards the end of his life and was getting treatment in Delhi and Jalandhar and eventually passed away on 20.12.1990.
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He had four daughters, i.e. Sarla Mukherjee (plaintiff), Smt. Ram Piari Mishra (defendant No. 1), Smt. Ram Dulari and Smt. Swarn Kumari.
Both Ram Dulari and Swarn Kumari died in the year 1986, with Ram Dulari leaving behind defendants No. 2 to 5 as her natural legal heirs and Swarn Kumari leaving behind defendants No. 6 and 7 as her legal representatives.
It was contended in the suit that, therefore, the plaintiff was owner to the extent of 1/4th share of the suit property, with 1/4th share coming to defendant No. 1, 1/4th share to defendants No. 2 to 5 and 1/4th share to defendants No. 6 and 7.
It was further stated that defendant No. 1 was in possession of the house as co-owner for herself and on behalf of the defendants. However, despite being requested several times for partition of the property and delivery of 1/4th share thereof to the plaintiff, the first defendant had not done so and eventually, in November, 2001, she flatly refused. Further stating that the first defendant was also liable to pay 1/4th of the rental income of the property to the plaintiff, which the said defendant was using, the suit was filed on 20.11.2002. It was also alleged that defendant No. 1 had refused to allow any person on behalf of the plaintiff to enter the premises to prepare the plan and to take measurement of the property.
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Upon notice issued, defendant No. 1 appeared and filed her written statement. Defendants No. 2 and 3 appeared but did not file their written statement and consequently their defence was struck off and defendants No. 4, 5 and 7 did not respond to the notice and were, therefore, proceeded against ex parte.
Defendant No. 6 appeared and filed a separate written statement, admitting to the contents of the plaint and prayed that the suit be decreed in terms of the prayer made.
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In her written statement, defendant No. 1 took preliminary objections with regard to the suit not being maintainable, not properly valued, jurisdiction etc.
She further stated that the suit property had been bequeathed in favour of the plaintiff and defendant No. 1 in equal shares as per the last valid will executed by their father Shri Dwarka Nath Mishra, the will being a document duly registered in the office of the Sub-Registrar, Jalandhar, on 20.11.1989.
A further preliminary objection on the ground of limitation was also raised.
On merits, the ownership of Shri Dwarka Nath Mishra over the suit property was admitted, further stating that defendant No. 1 (appellant herein) along with her youngest son had been living with Shri Dwarka Nath Mishra in the house and had been looking after him even after he fell down and suffered injuries in his house.
He was stated to have been initially treated at Patel Hospital, Jalandhar, from where he was shifted to Delhi, where he died.
Thus, it was contended that the plaintiff and defendant No. 1 have equal shares of the suit property and that the late father had excluded defendants No. 2 to 7 from inheritance of the property.
Yet further, it was contended in the written statement that the plaintiff was not entitled to claim possession or for any rendition of accounts, being bound by the will left behind by the deceased and that the property had never been rented out. On the other hand, a hefty amount for its repair had been spent by defendant No. 1 for the period of 12 years after the death of Shri Dwarka Nath Mishra.
Lastly, it was denied that the plaintiff had ever approached defendant No. 1 seeking any partition of the property.
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A replication to the written statement of defendant No. 1 was filed by the plaintiff, after which the following issues were framed by the learned Civil Judge (Jr. Divn.), Jalandhar:-
"1. Whether Dwarka Nath Mishra, executed a legal and valid will dated 26.9.89 registered on 20.11.89 in favour of defendant No. 1 and plaintiff? OPD-1
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If issue No. 1 is not proved, whether plaintiff is entitled to possession of 1/4th share on petition? OPP
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Whether the plaintiff is entitled to possession of the suit property? OPP
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Whether the plaintiff is entitled to rendition of accounts? OPP
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Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPP
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Whether the plaintiff has concealed the material facts. If so its effect? OPD
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Whether the suit is barred by limitation? OPD
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Relief."
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In support of her plea, the plaintiff stepped into the witness box as PW-1 and closed her evidence, whereas the first defendant (appellant herein) examined one Harjinder Singh as DW-1, Harwinder Singh Sandhu as DW-2, Onkar Nath Mishra (her son) as DW-3, Jagdish Chander, a Clerk in the office of the Sub-Registrar, Jalandhar, as DW-4, Sohan Lal Bhumbak, SDM, Derabassi as DW-6 (the former Sub-Registrar, Jullundur).
She also tendered various documents in evidence, including the will of Dwarka Nath Mishra as Ex. D-1, and the Punjabi version thereof as Ex. D-2.
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The plaintiff having testified in terms of her plaint, DW-1 testified to the effect that he was one of the marginal witnesses to the will executed by the late Dwarka Nath Mishra, which he stated was executed in his presence by the testator and that he had signed on both the English and the Punjabi version thereof.
Similarly, DW-2, who is the son of DW-1, testified to being another marginal witness to the will, which he also stated was executed in his presence.
DW-3, Onkar Nath, is the son of the first defendant and testified as her attorney, to the effect that a valid registered will was executed.
DW-4, a Clerk from the office of the Sub-Registrar, also testified that the will (Ex. D-1) and its Punjabi version (Ex. D-2) were registered with the office of the Sub-Registrar, Jalandhar, which had been executed by the late Dwarka Nath Mishra.
The Registrar in whose presence the will was registered, i.e. Sohan Lal Bhumbak, appeared as DW-6 and testified to the effect that he had registered the will.
He also proved the endorsements on the English and Punjabi versions of the Will, as Exs. DW-6/1, DW-6/2 and DW-6/3.
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The argument on behalf of the plaintiff was that the will was surrounded by suspicious circumstances with regard to its execution, registration and attestation and that it was a forged document, which could be seen from the cross-examination of both, DW-1 and his son DW-2, with DW-1 having stated that when the will was scribed, an Advocate and the son of DW-1, i.e. DW-2, were present and that the will was written at home and the grand-son of Dwarka Nath Mishra had gone to the Court to get it typed.
The learned Civil Judge having considered the aforesaid and other arguments, as also having appraised the evidence, recorded a finding that DW-2, Harjinder Singh, had stated that he had not seen the original will but only its certified copy.
The grand-son of Dwarka Nath Mishra, i.e. Onkar Nath Mishra, DW-3, appearing for his mother, holding her power of attorney, was found to have stated that the will was executed in his presence and his mothers' and that his grand-father, Dwarka Nath Mishra, had scribed it on a plain paper at house No. 179, Civil Lines, Jalandhar, with this witnesses' brother also present. However, it was further found that he had not stated that he got the will typed after rough notes were given to him by his grand-father, as Ex. D-1 as well its Punjabi translation, Ex. D-2, were both typed documents both registered by the Sub-Registrar.
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Other than the above, it was held by the learned Civil Judge that there were other suspicious circumstances surrounding the will, inasmuch as, the Sub-Registrar, DW-6, had testified that the will was registered at the house of the executant, i.e. Dwarka Nath Mishra and the clerk who appeared from that office, DW-4, had also testified to that effect, but when cross-examined he stated that in order to get a document registered outside the tehsil office, an application was to be moved before the Sub-Registrar. He admitted that if no such application is moved, then none of the revenue officers could get the document registered. This witness had also admitted that no application was available on the file by which a request had been made to the Sub-Registrar that the executant wishes to execute the will at home.
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Another reason for disbelieving the will, as given in the judgment of the learned Civil Judge, was that as per the marginal witnesses thereto, DW-1 and DW-2, the will was executed on 26.09.1989 and thereafter registered on 20.11.1989. Though the will being registered on a subsequent date was not held to be a suspicious circumstances by that Court, but the fact that one Shri Ved Vyas, Advocate, was shown to have been present at the time of its execution as also its registration was found to be suspicious. The presence of Shri Ved Vyas at the time of execution of the will was also seen to be revealed from the statement of DW 1 and 3, to the effect that there...
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