Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.304 of 1997. Judgment reserved on : 29.3.2011. Date of Decision: April 7th, 2011. Netar Singh and others. ……… Appellants. Versus Lajya Devi and others. …..… Respondents. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellants : Mr. Bhupender Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the Respondents : Mr. K.D. Sood, Advocate, for respondents 1(a) to 1(d) & 2. Respondent No.3 ex-parte. Surinder Singh, J: The present Regular Second Appeal is directed by the defendants, feeling aggrieved and dissatisfied by the judgment and decree of reversal, passed by the learned First Appellate Court in Civil Appeal No.66-NS/13 of 94 decided on 30.7.1997, whereby the Civil Suit No. 127 of 88/87 filed by the plaintiffs was decreed. 2 2. This appeal was admitted on the following substantial questions of law:- 1. “Whether the property which was subject-matter of the suit could be said to be ancestral in the hands of late Shri Deuru, merely on the basis of one mutation showing that Deuru inherited some land? 2. Whether the learned lower Appellate Court acted in an erroneous and perverse manner in raising presumption of parentage in favour of the plaintiff- respondents when it was established that Smt. Dropdi had contracted another marriage and was not living in the company of late Shri Deuru since 1945? 3. Whether the learned Lower appellate Court failed to take into consideration the admissions of late Shri Deuru in the Will that he has only two daughters defendants No.5 and 6, could oral evidence take precedence over such conclusive admissions of the deceased, to allow the plaintiffs to be children of late Shri Deuru from Smt. Dropdi? 4. Whether the judgment and decree passed by the learned Lower Appellate Court is vitiated on account of relying upon inadmissible evidence which was not in conformity with the provisions of Sections 50 and 60 of the Indian Evidence Act? 3 5. Whether the learned Lower Appellate Court has illegally exercised jurisdiction in not raising adverse inference against the plaintiff-respondents for not examining Smt. Dropdi who was the best evidence for establishment of relationship? 6. Whether mere old age and participation of the legatee is a sufficient circumstance to discard the Will, are not such evidence of the learned Lower Appellate Court against the law and the facts established on the record? 7. Whether the judgment and decree of the learned Lower Appellate Court is in consonance with the Code of Civil Procedure since the same contains contradictory statements and does not give reasons for dissenting from the judgment and decree passed by the learned trial Court?” 3. The gravamen of the entire controversy revolves around the fact whether late Narinder Singh and his sister Bilo Devi, to be referred hereinafter as ‘the plaintiffs’ are the son and daughter of late Sh. Deuru consequent to the Will Ex.DW3/A. To have the better understanding of the facts, it shall be relevant to draw a pedigree table of the parties to the suit, which is as under:- 4 4. In nut-shell, the facts giving rise to the present appeal are that the plaintiffs sought declaration to the effect that the suit land is ancestral property and they being the sole heirs of Deuru were entitled to succeed his Budh Ram Leba (died issueless) Shiv Saran (died issueless) Jagat Ram (Dead) (Wife-Padma) Roop Ram (Dead) Deuru (dead) (Wife- Dropdi) Netar Singh (Defendant No.1) Shyam Lal (Defendant No.4) Amar Singh (Defendant No.3) Kalu Bal Krishan (Defendant No.2) Sohan Lal Sunder Lal Narinder (Died during pendency of appeal-Plaintiff No.1.) Bilo Devi Plaintiff No.2. Lajya Devi (Widow) Champa (Daughter) Yogender Kumar (Son) Geeta (Daughter) Note:- Defendants No.5 & 6 Sumitra & Bimla also claimed daughters of Deuru from Padma widow of Jagat Ram (Disputed by Plaintiffs). 5 estate i.e. the suit land and further that the Will Ext. DW3/A executed by Deuru on 15.10.1985 in favour of defendants No.1 to 4 and the mutation on the basis of the said Will are illegal, null and void and nonest on the rights of the plaintiffs with consequential relief of the joint possession. 5. According to the plaintiffs, in the year 1945 Deuru had married their mother Dropdi. This marriage lasted for about 16 years and during the subsistence of this marriage, plaintiffs were born from the lions of Deuru, thereafter their mother Dropdi sought customary divorce and the plaintiffs were brought up by their father Deuru. They were admitted in the Government Primary School Chewa by him. They also pleaded that their father Deuru had succeeded to the estate of Kalu their grand-father alongwith his brothers namely Leba, Shiv Saran, Jagat Ram and Roop Ram vide mutation No.785 attested on 23.3.1952. Thus, the land was ancestral in the hands of Deuru having been inherited from his grand father Budh Ram. 5(ii). It is the case of plaintiffs that Leba and Shiv Saran died issueless. Their estate was inherited by Deuru 6 and Roop Ram. Roop Ram also died and his estate was inherited by his sons Sohan Lal and Sunder Lal. 5(iii). In view of the ancestral nature of the land Deuru could not have executed the Will of the ancestral property and even otherwise the Will aforesaid is surrounded by suspicious circumstances. 5(iv). Defendants No.1 to 4 are the direct beneficiaries under the Will and the names of Sumitra and Bimla defendants were wrongly shown to be the daughters of Deuru since they are the daughters of Jagat Ram and said Will is the result of concoction, undue influence and misrepresentation of facts. The names of the plaintiffs were altogether ignored and the alleged beneficiaries taking the advantage of the illiteracy of old age and illness of said Shri Deuru fabricated the aforesaid document (Will) and this fact came to their knowledge when the plaintiffs intended to get the property partitioned and found that their names were not mentioned in the revenue record. Their representation to the quarter concerned did not yield any fruitful result, as such they filed the suit. 5(v). Vide their joint written statement, the defendants resisted and contested the suit of the plaintiffs 7 and challenged their locus-standi to file the present suit. Although the defendants admitted that Dropdi married to Deuru in the year 1945, but it is alleged that she sought customary divorce after few months and remained in the company of some other persons, during that period, she might have given birth to the plaintiffs, much after giving divorce by Deuru. It was also their case that Deuru was mentioned as father of the plaintiffs without his knowledge. It is also alleged that the mother of the defendants No.1 to 4 Padma wife of Jagat Ram after the death of Jagat Ram in the years 1955-56 married Deuru and during this marriage, defendants Sumitra and Bimla were born. Even in the year 1968, Padma also left the company of Deuru. The defendants defended the Will being it is a registered document and pleaded that there is clear cut mention in the Will that Deuru did not had any male issue, thus, the plaintiffs have no connection with said Deuru. Deuru had executed the Will in favour of defendants No.1 to 4 wherein Sumitra and Bimla are also the beneficiaries, thus they supported the impugned mutation on the basis of the Will and denied that the Will was the result of concoction and under the influence of 8 misrepresentation. Hence the ancestral concept of the suit land qua the plaintiffs is denied. 6. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit property is ancestral property in the hands of Shri Diwaru qua the qua the plaintiffs? …OPP. 2. Whether the plaintiffs are the sons and daughter of Shri Diwaru born of his loin from Smt. Dropdi, his divorced wife, as alleged? …OPP. 3. Whether Shri Diwaru executed a Will of his property in favour of defendants? …OPP. 4. Whether Will regarding ancestral property by Shri Diwaru is not valid and is illegal, null & void? …OPP. 5. Whether the Will is the result of undue influence, misrepresentation and is not binding upon the plaintiffs? …OPP. 6. Whether the mutation of inheritance by Shri Diwaru attested in favour of defendants on the basis of Will is wrong, illegal, null and void? …OPP. 7. Whether the plaintiffs have no locus-standi to file the suit? …OPD. 8. Whether suit has been properly valued for court fee and jurisdiction? …OPD. 9. Relief. 7. After the complete trial, learned trial Court held that the plaintiffs have no locus-standi to raise the issue with respect to the property being ancestral as their relation as alleged with late Shri Deuru stands not proved 9 and further that the Will Ex.DW3/A executed by said Deuru was a genuine document. Therefore, mutation of inheritance of Deuru attested in favour of the defendants on the basis of the Will is correct, legal and the plaintiffs have also no locus-standi even to challenge the validity of the registered Will, as such all the issues were decided against the plaintiffs and in favour of the defendants. Consequently the suit of the plaintiffs was dismissed. 8. Feeling aggrieved and dissatisfied by the impugned judgment and decree passed by the learned trial Court, the plaintiffs filed appeal before the learned District Judge, who after hearing the parties and going through the evidence on record, came to the conclusion that the learned trial Court has misread the evidence, therefore the findings returned by the learned trial Court dismissing the suit of the plaintiffs is against the facts and law, therefore, liable to be set-aside. Thus, on the reappraisal of the evidence, learned first Appellate Court came to the conclusion that the defendants admitted that Dropdi was married to Deuru in the year 1945 and even the witnesses of the defendants either expressed ignorance about the divorce inter-se Deuru and Dropdi or stated that they lived together for about 10/12 years, 10 thereafter sought customary divorce and during this period, plaintiffs took birth from the womb of Dropdi and loins of Deuru, which fact was also established by the witnesses produced by the plaintiffs coupled with the documentary evidence. It was also held that the suit land in the hands of Deuru was ancestral and while examining the evidence with respect to the Will Ex.DW3/A, it was held that it was not a genuine document, for the reasons that there was no mention of the divorce between Deuru and Dropdi and no provision for the plaintiffs being his children was made. Even the name of Padma, mother of defendants No.5 and 6 namely Sumitra and Bimla were not mentioned in the said document. At the time of alleged Will Deuru was at about 65 years of age and was not keeping good health and died within 20 days from the date of the execution of the alleged Will. Also that the beneficiaries in the Will took active part in getting the said document executed. The actual place of execution of the Will was stated to be different by the witnesses during trial. Further DW5 Mohan Lal though from the same village did not know the names of defendants No.5 and 6. It is also not proved that Padma widow of his brother Jagat Ram was married to Deuru, rather it stands proved that 11 Deuru was living alone in the family of Jagat Ram and was under the influence of defendants. Thus, the Will aforesaid was disbelieved. 9. Shri Bhupender Gupta, learned Senior Advocate on the instructions of Shri Janesh Gupta, Advocate vehemently argued that the approach of the first Appellate Court raising the presumption of parentage in favour of the plaintiffs is erroneous. Smt. Dropdi could have been the best witness to depose about the parentage of the plaintiffs, but she was withheld and not examined, therefore the adverse inference should have been drawn. There is also no evidence as to who got the plaintiffs admitted in the School and entered their parentage of Deuru in the school record. The evidence of the plaintiffs is vague and oral evidence could not have taken precedence over the documentary evidence, i.e. Will executed by Deuru wherein Deuru clearly acknowledged the paternity of defendants No.5 and 6 and made no reference of the plaintiffs as his children. It is also argued that the evidence of the plaintiffs with respect to their relationship with Deuru is not in conformity with the provision of Section 50 and 60 of the Indian Evidence Act. Thus, the plaintiffs who are not son and 12 daughter of Deuru has no locus-standi to challenge the Will and property in question is not ancestral qua them. Since the learned first Appellate Court ignored the above important facts, therefore, the impugned judgment and decree of reversal is unsustainable and that of the learned trial Court deserves to be restored. To buttress his arguments, the reliance was put on the judgments of the Apex Court in Dolgobinda Paricha vs. Nimai Charan Misra and others [AIR 1959 SC 914] and Bant Singh and Anr. vs. Niranjan Singh (D) By LRs and Another [AIR 2008 SC 1512]. 10. Contra Shri K.D. Sood, learned counsel for the plaintiffs while supporting the impugned judgment and decree submitted that the defendants have admitted the fact of marriage of Smt. Dropdi with Deuru in the year 1945, the divorce as alleged is not proved and the existence of valid marriage inter- se the parties aforesaid raises only one presumption that the plaintiffs have taken birth from the loins of Deuru. Learned counsel also submitted that the statements of PWs 2 and 3 are in conformity with Sections 50 and 60 of the Indian Evidence Act, which are also corroborated by PW1 as also the defendants’ witnesses. Therefore, no benefit can be derived by the defendants on the basis of the judgments cited above. 13 11. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 12. As already stated above the pivotal question in the instant case is whether the plaintiffs have taken birth from the loins of Deuru during the subsisting marriage inter se him and Dropdi. In their written statement, the defendants admitted that Dropdi did marry Deuru in the year 1945, but according to them, she was divorced few months after the marriage and plaintiff nos. 1 and 2 were not borne out of the short lived union of late Deuru and Dropdi. Further that the alleged will is an unnatural document and it was rightly rejected by the first appellate Court. 13. Legally, when the Court has to form an opinion as to the opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact. 14. Section 50 of the Indian Evidence Act deals with the above proposition subject to the proviso added 14 thereto. Thus, the essential requirements of the section aforesaid are:- “(1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossip or of hearsay; it means judgment or belief, that is, a belief or a conviction resulting from what one thinks on a particular question”. 15. The perusal of the judgment of the Apex Court in Dolgobinda Paricha vs. Nimai Charan Misra and others [AIR 1959 SC 914] reveals that the “belief” or conviction 15 may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved. This section does not make evidence of mere general reputation “without conduct” admissible as proof of relationship, but the conduct or outward behaviour must be proved in the manner relating to Section 60 of the Indian Evidence Act, which reads as under:- “60. Oral evidence must be direct. Oral evidence must, in all cases whatever, be direct; that is to say. If it refers to a fact, which could be seen, it must be the evidence of a witness who says he saw it; If it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact, which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; 16 If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds; Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatises if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable: Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the court may, if it thinks fit, require the production of such material thing for its inspection.” 16. Thus, the conduct must be of the person who fulfils the essential conditions of Section 50, and it must be proved in the manner laid down in the provisions relating to proof. Section 60 aforesaid also provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of Section 17 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under Section 50 or by some other person acquainted with the facts which express such opinion, as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of Section 60 and this is a true inter-relation between Section 50 and Section 60 of the Indian Evidence Act. The above dictum of the Supreme Court in Dolgobinda Paricha’s case was also relied by te Apex Court in Bant Singh and Anr. vs. Niranjan Singh (D) By LRs and Another [AIR 2008 SC 1512]. 17. Applying the afore-mentioned test in regard to the evidence of the plaintiffs, I find that the statement of PW2 Anokhi Ram a neighbour residing about half kilometer away from the house of Deuru is quite relevant. He is brother in relation in the village ‘biradari’ and had been attending the marriage at the place ‘Mohari’ at the place of Deuru. He also being neighbour has 18 categorically stated about the subject matter that he was present in the said marriage of Deuru with Dropdi. He also stated that the plaintiffs took birth from the loins of Deuru and they studied in Govt. Primary School Chewa and Deopdi had been residing in village Patrar, later there was some misunderstanding between her and Deuru and she then started residing in village Mohri in her parental house and this adjustment continued for a long time. There was some conciliation and the customary divorce was obtained, thereafter she resided and settled with Munshi Ram and gave birth to two children. PW3 Roshan Lal is another witness, a brother of Deuru in village ‘biradri’. He corroborated the above version. PW1 Smt. Ganpati Sharma appeared in rebuttal also supported the plaintiff. Her statement was recorded on 16.7.1993 and stated that Dropdi had died about one year prior when she was examined as witness in the Court. 18. In the light of the judgments of the Apex Court referred above, I have no hesitation to hold the statements of the witnesses discussed above are admissible in evidence being in conformity with Sections 50 and 60 of the Indian Evidence Act. 19 19. While adverting to the statements of the defendants, I would like to refer the statement of DW2 Ram Rattan. He also stated that Dropdi was married to Deuru and after about 3-4 months, she left her place, but he did not categorically state that whether any divorce was obtained by her. Further DW3 Sant Ram stated that he did not know as to when Dropdi left the company of Deuru. Thus, the divorce between Dropdi and Deuru as alleged by the defendants has not been proved. Thus the evidence on record shows that plaintiffs took birth during the subsistence of their valid marriage and absence of proof of divorce after few months of their marriage. There is a strong presumption in favour of the plaintiffs that they are the son and daughter of the Deuru and Dropdi, which is also evident from the School Leaving Certificates of plaintiff No.1 Narinder Singh and plaintiff No.2 Bilo, wherein they have been shown as son and daughter respectively of Deuru. Once, this conclusion is arrived, it can logically be concluded that the land, which was inherited by Deuru from his father is ancestral, which fact is supported by pedigree-table Ex.P5, Jamabandi for the years 1949-50 Ex.P7 and also the Mutation Ex.P4 attested on 4.2.1986. 20 20. In so far as the parentage of Sumitra and Bimla is concerned, admittedly they are the daughters of Padma widow of Jagat Ram. There is no evidence with respect to the marriage of Padma with Deuru after the death of Jagat Ram, as alleged. No particular customary ceremony has been proved by the defendants by leading cogent evidence, rather their witnesses have shown ignorance about the ceremonies of the marriage. Insofar as the School Leaving Certificate of Sumitra and Bimla are concerned, the statement of DW7 Bhagwant Sharma clearly exhibits that the record was fabricated as the original applications with respect to their admission were not available except its copies whereas other applications in the School record, according to him were in original. It also appears from his statement that something wrong was recorded in their names and the correction applications were made which lends strength to the version of the plaintiffs that there was some change made in the parentage, more specifically when in the School Leaving certificate of Sumitra Devi name of father has been shown as ‘late Deuru Ram’, meaning thereby she was not admitted by Deuru Ram in the School and this 21 change might have been made after filing the present suit by the plaintiffs. 21. Since Dropdi had died as stated by PW1 Smt. Ganpati Sharma, therefore, her non-production as a witness to the case of the plaintiffs is not fatal, but whereas, Padma Devi, who was live at the time of pendency of the suit before the learned trial Court, as stated by DW5 Sumitra Devi was not examined