IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA FAO (Ord.) No.511 of 2007 along with FAO (Ord.) No.512 of 2007 Judgment reserved on: 9.12.2010 Date of decision: 16.12.2010. FAO No.511 of 2007: Smt.Jai Devi …Appellant -Versus- Smt.Surti Devi ….Respondent FAO No.512 of 2007: Smt.Jai Devi and another …..Appellants -Versus- Smt.Surti Devi and another …..Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? No For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Ms.Seema Sood, Advocate vice Mr.Satpal Chauhan, Advocate. Deepak Gupta, J. 1. These two appeals are being disposed of by one judgment since common questions of law and fact are involved and both the parties in the proceedings are closely related to each other. 2. FAO No.511 of 2007 is directed against the order of the learned District Judge, Kinnaur Division at Rampur Bushahr dated 8th November, 2007 whereby he remanded the case to the learned trial Court and set-aside the judgment and decree dated 18th February, 2005 passed by the learned Trial Court in Civil Suit No.4-1 of 1995. 3. FAO No.512 of 2007 is directed against the order of the learned District Judge, Kinnaur Division at Rampur Bushahr dated 8th November, 2007 whereby he set-aside the judgment and decree 2 of the learned Trial Court dated 18.2.2005 in Civil Suit No.83-1 of 2002 and remanded the case to the trial Court for decision afresh. 4. Smt.Jai Devi filed Civil Suit No.4-1 of 1995 in the Court of the learned Sub Judge, Rampur Bushahr in the year 1995 against her sister Smt.Surati Devi. It was alleged that both Jai Devi and Surati Devi were the daughters of late Sh.Nain Sukh who had no male issue. According to the plaintiff, defendant Surati Devi was married to Bhagat Singh and Bhagat Singh used to live as ‘ghar Jawain’ in the house of his father-in-law. It was alleged that taking undue influence of this fact Bhagat Singh got half the property of Sh.Nain Sukh transferred in his name. Nain Sukh allegedly died on 20.1.1994. The plaintiff alleged that the defendant had set-up some Will allegedly executed by Nain Sukh in favour of Surati Devi. She claimed that this Will was totally forged and therefore prayed that she be declared to be owner in possession along with the defendant in the immovable property of late Sh.Nain Sukh. It was also alleged that this property was ancestral property. 5. Civil Suit No.83-1 of 2002 was filed by Surati Devi and her husband Bhagat Singh, against Jai Devi and her husband Govind. In this suit it was alleged that Nain Sukh was owner in possession of the property comprised in Khata/ Khatauni No.24/37-46, Kita 27, measuring 54-9 bighas to the extent of half share as per jamabandi for the year 1972-73. Nain Sukh had gifted half share to plaintiff Bhagat Singh vide gift deed No.29/75 dated 15.2.1975 and possession was delivered to Sh.Bhagat Singh. It was alleged that Nain Sukh had no male issue and he was only having one daughter, namely, Surati Devi wife of Sh.Bhagat Sing. According to Surti Devi and Bhagat Singh, Nain Sukh after gifting half of his property 3 in favour of Bhagat Ram had executed a registered Will of his remaining property in favour of Surti Devi on 12.11.1985. On this basis it was prayed that the defendants be restrained from interfering in the possession of the plaintiffs over the suit land. 6. As far as the first suit is concerned, the following issues were framed in the suit: “1.Shether the Will executed by Sh.Nain Sukh is genuine and valid?....OPD 2.Whether the suit had not been properly valued? If so, what is the correct value?...OPD 3.Relief.” 7. Since the onus to prove both the issues was on the defendant, the defendant led evidence first. The suit thereafter was dismissed in default but was restored and thereafter, statement of the plaintiff was recorded and then the case fixed for arguments. Arguments were heard and the learned trial Court decreed the suit vide his judgment dated 18.2.2005. In this suit the only question was with regard to the validity of the Will. 8. It would be pertinent to mention that in the written statement originally filed to the plaint the defendant did not deny the fact that the plaintiff and she were real sisters. During the pendency of the suit, the defendant filed an application for amendment of the written statement but in view of her earlier admission the amendment application was dismissed vide order dated 16.10.2004 and therefore the admission of the defendant continues to remain on record that Jai Devi was the daughter of Nain Sukh. In this case, the defendant did not even care to produce the original Will nor took any steps to prove the same. The learned trial Court therefore decreed the suit of Jai Devi. 4 9. This judgment and decree has been set-aside by the learned lower Appellate Court and one of the grounds which weighed with the lower Appellate Court was that after the evidence of the plaintiff had been led, the defendant should have been given an opportunity to lead evidence and since this had not been done, the case had to be remanded. This shows total non-application of mind on behalf of the learned District Judge. As noted hereinabove, the onus to prove the issues was on the defendant and therefore the defendant led evidence first and thereafter the plaintiff led evidence and therefore there was no need to permit the defendant to lead evidence again. 10. As far as Civil Suit No.83-1 of 2002 is concerned, the learned trial Court vide his judgment dated 18.2.2005 dismissed the suit. Before the learned lower Appellate Court, during the pendency of the appeal, the plaintiff moved an application under Order 41 Rule 27 CPC to produce on record the original or certified copies of Gift Deed dated 14.2.1975 and mutation attested on the basis of such document. The learned lower Appellate Court, came to the conclusion that production of such document was necessary for the just decision of the case and thereafter remanded the case back to the learned trial Court. 11. To say the least, the approach of the learned District Judge was wholly wrong. Even if, the application had to be allowed the learned lower Appellate Court instead of remanding the case should either itself have recorded the evidence or should have asked the learned trial Court to record evidence and then remit its finding. 5 12. Keeping in view the fact that the first suit was filed in the year 1995 and litigation between two sisters has been pending since long, I am clearly of the view that on the basis of the material on record itself both the suits can be disposed of at this stage itself. 13. As far as the relationship between the parties are concerned, due to admission made in civil suit No.4-1 of 1995 it has to be held that both Surti Devi and Jai Devi are real sisters. In the suit filed by Jai Devi she had herself admitted that her father had transferred half share of his property in the name of Bhag Singh husband of Surti Devi. She had not challenged the said transfer nor had she arrayed Bhagat Singh as party in the said proceedings. Therefore, in later proceedings filed by Surti Devi, Jai Devi could not deny the execution of gift deed in favour of Bhagat Singh and the averments made by her in the previous suit are themselves proof of the fact that such gift deed was executed. 14. As far as the Will is concerned, Surti Devi has miserably failed to prove the Will in accordance with law. Surti Devi had produced this Will in the first Civil Suit but neither the attesting witnesses were examined nor any other witness examined to prove the same. In the second suit Surti Devi did examine the attesting witnesses. An interesting fact is that in the examination-in-chief of Sh.Kali Dass, PW-2 was in the form of affidavit typed in English, but in cross examination he clearly admitted that he did not know English and his affidavit had not been read over and explained to him. Therefore, his statement is not worth the paper it is written on. In cross-examination he also states that the Will Ext.PW-2/A was not read over or explained to Sh.Nain Sukh in his presence. In 6 fact PW-2 Kali Dass could not even identify the signatures of Nain Sukh on the Will. 15. Sh.Prem Chand, the other attesting witness was examined as PW-3. His examination-in-chief by way of affidavit supports the plaintiff. In this he has stated that when he was going from Rohru to Sarahan, he came to meet Bija Ram, Munshi in the Court. Bija Ram was writing the Will of an old man. Later on he was told that this old man was Nain Sukh and according to him this person signed the Will. Thus, it is clear that Nain Sukh was not known to him earlier. He had never seen Nain Sukh prior to the said date. In cross examination, this witness also admitted that parties to the suit were not known to him. Therefore, it is extremely doubtful that he could have been associated as a marginal witness when he does not know even the testator or the beneficiary of the Will. 16. Both these marginal witnesses belong to different villages and they do not belong to the village of Nain Sukh. There is no explanation why witnesses of the area were not associated with the Will. In this Will there is no mention of Jai Devi. This also casts a doubt on the validity of the Will. The Will has accordingly not been proved in either of the two cases. 17. The upshot of the above discussion is that it has been proved on record and in fact admitted by Jai Devi that her father had gifted half of his property to Bhagat Singh, husband of Surti Devi. As far as the other half of the property is concerned, Will in favour of Surti Devi has not been proved. As such Jai Devi is entitled to half share in this half i.e. ¼ share in the entire property. Resultantly, Suit No.4-1 of 1995 filed by Jai Devi is decreed to the extent that the plaintiff Jai Devi in that suit is held entitled to half share in the 7 half share left with Nain Sukh after he had gifted half of his property to Bhagat Singh. To that extent Jai Devi is held to be owner in joint possession along with defendant Surti Devi and is entitled to a share in the property i.e. 1/4th share in the total property of deceased Nain Sukh. 18. As far as Civil Suit No.83-1 of 2002 is concerned, the same is decreed qua half share and it is held that half of the land was gifted by Nain Sukh in favour of Bhagat Singh and he is the owner thereof and Jai Devi has no right, title or interest in the same and she and her husband Govind are restrained from interfering in the same. 19. Both the appeals are disposed of in the aforesaid terms. Decree sheet be drawn up accordingly. No order as to costs. December 16, 2010. ( Deepak Gupta ), PV Judge