IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 654 of 2005. Reserved on: 02.06.2011. Decided on 12.07.2011. _____________________________________________________ Ram Kumar and others. …Appellants. -Versus- Yog Raj and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the appellants : Mr. Bhupender Gupta, Senior Advocate with Ms. Charu Gupta, Advocate. For respondents No. 1, 3 and 4 : Mr. R.K. Gautam, Senior Advocate with Mr. Mehar Chand, Advocate. For respondent No. 2. : Mr. K.D. Sood, Advocate. None for respondents No. 5 to 9. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 29.09.2005, passed by the learned Additional District Judge, Solan, District Solan, H.P. in Civil Appeal No. 37-NL/13 of 1999. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - instituted a suit that they were co-owners to the extent of ¼ share in the suit property detailed as under: “(a) Khewat/Khatauni NO,. 20/25, bearing Khasra No. 975 (9b-6b) and 976 (1b-2b), pertaining to and situated in the area of village Khillian, Pargana Gulerwala, Tehsil Nalagarh, Distt. Solan, H.P., as entered in the Jamabandi for the year, 1989-90. (aa) Khewat/Khatauni NO. 19/24, bearing Khasra No. 789 (0-2b) 806(0-19B), 960(0-19b), 1093(1b-4b), 1109 (1b-16b), 11 (1b-1b) & 1132 (0- 18b) total land measuring 6 bighas 19 biswas, pertaining to and situated in the are of village Khillian, H.B. No. 28, Pargana Gullerwala, Tehsil Nalagarh, Distt. Solan, H.P., as entered in the Jamabandi for the year 1989-90. (b) Khewat/Khatauni No. 14/14, bearing Khasra Nos. 90(5b-12b) 93(2b-13b), 94 (7b-7b), 95(4b-10b), 96(0-10b), 98 (2b-12b), 99(1b-8b) 100(1b- 11b), 101(1b-7b), 102(5b-4b) total land measuring 32 bighas 14 biswas, pertaining to and siutuated in the area of village Gulabpura, Pargana Plassi, Tehsil Nalagarh, Distt. Solan, H.P., as entered in the Jamabandi for the year 1988-89. (c ) Khewat/Khatauni NO. 8/9, bearing Khasra Nos. 24(10b-13b), 533/95(3b-10b), 99(4b-6b), total land measuring 18 bighas 9 biswas, AND Khewat/Khatauni No. 9/10, bearing Khasra Nos.103(1-3b), 122 (1b-0b), total land measuring 2 bighas 3 biswas AND, Khewat/Khatauni No. 51/52, bearing Khasra Nos. 96 (2b-11b), 98(0- 19b), 100(3b-16b), total land measuring 7 bighas 6 biswas, AND Khewat/Khatauni NO. 52/53, bearing Khasra Nos. 101 (0-19b)102 (3b-11b), total land measuring 4 bighas 10 biswas, all pertaining to and situated in the area of village Souri Gujjran, Pargana - 3 - Plassi, Tehsil Nalagarh, Distt. Solan, H.P., as entered in the Jamabandi for the year 1987-88. (d) Khewat/Khatauni NO. 192/286, bearing Khasra Nos. 950(12, 24 sq. Mtrs.), 951 (76.76 Sq. Mtrs), pertaining to and situated in the area of Purana Nalagarh, as entered in the Jamabandi Misal Haquiat Bandobast for the year 1980-81. 3. According to the plaintiffs, Roda Ram son of Shri Thakru, was the common ancestor of parties. Roda Ram being the father of the plaintiffs and appellants-defendants No. 1 to 3 and 5 (hereinafter referred to as “the defendants” for convenience sake), was Karta of joint Hindu un-divided family. Defendant No. 3 Nauria has relinquished all his right, title and interest in favour of the plaintiffs and defendants No. 1, 2 and their father Roda Ram. The suit land as described in sub para (a) and (aa) situate in village Khillian, Pargana Gulerwala, Tehsil Nalagarh, Distt. Solan, H.P. is ancestral joint Hindu family property. Shri Roda Ram held total land measuring 40 bighas 10 biswas in village Khillian at the time of his death and the plaintiffs and defendants being sons are the coparceners in the said ancestral and coparcenery property. Shri Roda Ram inherited total land measuring 45 bighas 7 biswas from the grand-father of the plaintiff as coparcener and the said land was in the name and hands of Roda as Karta of joint Hindu family of the parties during his life time. Shri Roda Ram sold land measuring 4 bighas 9 biswas on 25.06.1965 for `2000/- out of ancestral property in village Khillian vide sale deed No. 188, dated 26.06.1965 and purchased land described in sub para (b) above in village Gulabpura, Tehsil Nalagarh from sale proceeds and income - 4 - of the joint Hindu property and the earnings contributed by the plaintiffs towards joint Hindu family funds. The suit land described in sub para (c) above was purchased by Shri Roda Ram Karta out of joint Hindu family funds and earnings contributed by the plaintiffs in joint Hindu family on 27.05.1967 for `6500/- and later on he paid `1500/- to Custodian Department as consideration amount of the aforesaid land as karta of joint Hindu family in village Souri Gujjran. The suit land situate in village Souri Gujjran and Gulab Pura is also ancestral and coparcenary property of plaintiffs and defendants No. 1 and 2. The land situate in Purana Nalagarh was also purchased by Shri Roda Ram. Shri Roda Ram died in the year 1969 leaving behind the plaintiffs and defendants No. 1 and 2 as coparceners and defendant No. 5 as daughter. He never executed any will during his life time and defendants No. 1 and 2 forged a document alleged to be the will of deceased Roda Ram. Defendants No. 1, 2 and 4 wrongly got sanctioned the mutation of inheritance in their names of the suit land situate in village Gulab Pura, Souri Gujjaran and Khillian. According to the plaintiffs, the said mutations were wrong and the plaintiffs are co-owners and co-sharers to the extent of ¼ share each in the land in suit situate in village Khillian. The land measuring 6 bighas 19 biswas recorded in the name of defendant No. 3 was also ancestral and coparcenary property of the parties as defendant No. 3 has renounced the world and was known as Sri Sri 108 Sri Mauj Gir Chela Baba Mahant Gur. The suit land in Purana Nalagarh described in sub para (d) was purchased by karta Roda Ram and the defendant No. 1 illegally got entered the land in suit in his name. Plaintiffs came to know about the wrong - 5 - entries when they got the notice of partition application filed by defendant No. 1 in respect of the suit land situate in village Gulab Pura. It is in these circumstances that the plaintiffs Madan Lal and Daulat Ram, predecessors-in-interest of the plaintiffs had filed this suit for declaration that they are co-owners to the extent of ¼ share each in the suit land and the entries in revenue record are wrong, illegal, null and void alongwith a decree for permanent injunction restraining the defendants from ousting the plaintiffs from the suit land and in alternative, prayed for grant of decree for possession of the suit land. 4. The suit was contested by defendants No. 1, 6 to 9. According to them, Shri Roda Ram was sole owner of the suit land and the suit land situate in village Khillian was not the ancestral and coparcenary property. The plaintiffs and defendants No. 1 and 2 were not the coparceners in the property. Shri Roda Ram inherited the land in suit and the land was also not purchased after sale of suit land in village Gulab Pura nor the said land was purchased from family funds. According to the defendants, the suit land in village Gulab Pura was purchased with the funds provided by defendant No. 1. Shri Roda Ram was absolute owner of the suit land. Plaintiffs applied for partition of joint land and resolution No. 11 was passed during consolidation proceedings. Shri Roda Ram had executed his valid will dated 15.10.1967. He had bequeathed land measuring 20 bighas in favour of defendant No. 4 and land measuring 12 bighas 12 biswas was bequeathed in favour of defendant No. 1 out of total land measuring 32 bighas 14 biswas situate in village Gulab Pura, out of which, 2 biswas land was inherited by the plaintiffs, defendants No. 1 to 3 and - 6 - defendant No. 5 in equal shares vide mutation No. 108 sanctioned for the estate of Roda Ram situate in village Gulab Pura. Shri Roda Ram deceased vide will bequeathed ¾ share in favour of defendant No. 1 and ¼ share in favour of defendant No. 2 and mutations were entered and sanctioned in respect of his estate in village Souri Gujjran. The said will also provided bequest in favour of defendant No. 1 of 10-16 bighas of land situate in village Khillian. The defendant No. 1 provided funds to his father Roda Ram to purchase land from Smt. Maltu, who had mortgaged her land for `700/-. The mutation was attested in Jalsa aam. The plaintiffs had not raised any objection for so many years and are not entitled to maintain the suit. The defendant No. 2 was in cultivating possession of land measuring 12 bighas 13 biswas in village Gulab Pura. The defendant No. 1 raised construction without any objection and had spent `10,000/-. The defendant No. 1 had also gifted land in favour of defendant No. 3 for ‘ Sanyas Ashram’ and has spent `70,000/- on construction and lot of money in improving the land in village Souri Gujjran. He had spent `40,000/- to raise and protect orchard in village Gulab Pura. He had dug a well in village Khillian. He had also raised construction in Purana Nalagarh in the year 1963 and had become owner by way of adverse possession. He had planted orchard trees and fixed barbed wire around land measuring 10 bighas 8 biswas comprised in Khata/Khatauni No. 20/25 Khasra No. 975 and 976 situate in village Khillian and irrigation thereof by contributing to the extent of 1/3 share. He had also raised construction of one room over Khasra No. 100 over 1-11 bighas of land situate in village Gulab Pura and raised construction of - 7 - pucca residential house consisting of 4 rooms, varrandah, one kitchen, latrine, gober gas plant on 32-8 bighas of land in village Souri Gujjran. Defendant No. 4 had also gifted 4-14 bighas of land situate in village Khillian in favour of defendants No. 6 to 9. 5. The defendants have also filed counter-claim, claiming that they were owners of half share in land measuring 91 bighas 15 biswas, i.e., i) Land measuring 30 bighas presently comprised in Khewat/Khatauni No. 15 and 16, Khatauni Nos. 15 to 17, bearing Khasra Nos. 72(0-17), 73 (1-2), 76(2-14), 77(3-6), 78(3-7), 79(3-0), 80 min (609), 80 min (9-0) and 71 (9-5) and; (ii) Land measuring 52 bighas 15 biswas, presently comprising in Khewat/Khatauni Nos. 39/54 and 55, bearing Khasra Nos. /Kitas-13. 6. Plaintiffs contested the counter claim and averred that other plaintiffs and defendants had no interest in the land measuring 45 bighas and 52 bighas 15 biswas situate in village Gulab Pura. The said land was self-acquired property of Madan Lal. Defendant No. 1 had raised house in village Gujjran about 9- 10 years back. The land measuring 48 bighas was purchased from Inder Jeet Singh for a consideration of `6,000/- on 11.09.1970 by Shri Yog Raj, Som Raj, Vishwa Nath and Ganesh Dutt, all sons of Madan Lal. The land measuring 52 bighas 15 biswas was purchased by Shri Som Raj for a consideration of `26,375/- from Inderjit. The land measuring 39 bighas and 52 bighas 15 biswas was not ancestral. The land was acquired by defendants No. 10 to 13 out of their own funds. The learned trial Court framed the issues on 03.10.1996. The learned Sub Judge, Nalagarh decreed the suit for declaration that the plaintiffs were co-owners to the - 8 - extent of 1/6th share each in the properties as described in para No. 1 of the judgment and that the revenue record in favour of defendants is not binding on the plaintiffs and mutation No. 108 pertaining to village Gulabpura, mutation No. 417 pertaining to village Khillian and mutation No. 191 pertaining to the properties at village Sauri Gujjaran are having no effect qua the rights of the plaintiffs with the consequential relief of joint possession. 7. Defendants/appellants, namely, Tilak Ram, Ashok Kumar, Ram Kumar, Bhubhneshwar Dutt and Triembkeshwar Dutt filed the Civil Appeal No. 37-NL/13 of 1999 against the judgment and decree dated 30.08.1999, passed by the learned Sub Judge, Nalagarh before the learned Additional District Judge, Solan. He dismissed the same on 29.09.2005. Hence, this Regular Second Appeal. 8. This Regular Second Appeal was admitted on 27.12.2005. As per order dated 27.12.2005, substantial questions of law, as detailed in the grounds of appeal, arose for determination. However, it is clarified that the appellants have framed as many as 7 substantial questions of law alongwith the memorandum of appeal. 9. Mr. Bhupender Gupta, learned Senior Advocate has strenuously argued that the suit filed by the plaintiff was beyond the period of limitation. He then argued that both the Courts below have mis-read and mis-construed the evidence as far as the issues pertaining to the partition, Will, ancestral property and counter claim preferred by the defendants are concerned. - 9 - 10. Mr. R.K. Gautam, learned Senior Advocate and Mr. K.D. Sood, Advocate have supported the judgments and decrees passed by both the Courts below. 11. The Court will first advert to the question whether Shri Roda Ram, predecessor-in-interest of the parties had partitioned the suit or not, as claimed by the defendants in the month of March/April, 1967. 12. DW-4 Tilak Ram has testified that his father has partitioned the property and the property at Khillian was transferred to the plaintiffs and witnesses Mal Ram, Banarsi, Churah, Krishan Dutt, Sanokh, Shiv Ram and Ratna were present at the time of partition. However, only Shri Banarsi Dass (DW-5) has been examined by the defendants. 13. Now, as far as Shri Churah Ram is concerned, he has been examined as DW-13 to prove the Will Ex. DW-11/A, dated 15.10.1967. According to Banarsi Dass, the partition was effected and the will was executed as per the partition and defendant No. 1 was allotted area measuring 10 Bighas. He has not given the description of the land allotted to other persons. According to him 7 ½ bighas of land was transferred, but he could not tell the Khasra numbers. He has not disclosed whether the partition was reduced into writing or not. According to him, the land has been divided equally. However, in village Gulabpura, only 0-2 biswas was allotted to the plaintiffs and at Khillian, land was transferred in favour of five sons and not the other land. Tilak Ram was allotted ¾ share and Ram Krishan was allotted ¼ share in village Sauri Gujjaran. Thus, the statement of this witness has rightly been discarded by both the Courts below. There is no tangible - 10 - evidence placed on record by the defendants that the partition was reduced into writing or it was acted upon by presenting the will before the revenue authorities. There is no evidence placed on record that on the basis of alleged partition, the revenue authorities were also approached. In view of this, the defendants have failed to prove that the land was partitioned by Roda Ram. 14. Now, the Court will advert to the nature of the suit property. According to the Jamabandi for the year 1955-56, Raja Sahib Bahadur was recorded as Ala Malik and Shri Thakru has been shown to be the Adna Malik of the land measuring 93 bighas 4 biswas in village Khillian. He has been shown to be the owner in possession of the land measuring 117 bighas 1 biswas in village Khillian. According to the Jamabandi for the year 1963-64 Samvat, Puran and Roda have been shown to be in possession to the extent of ½ share in village Khillian of the land measuring 42 Bighas 10 Biswas and Shri Roda Ram has been shown to be Maliq Adna and Raja Sahan Bahadur has been shown to be Maliq Ala. According to Ex. P-4, the mutation has been attested in favour of Puran, Roda, Brij Lal and Tota son of Thakur pertaining to the land measuring 109 Bighas 18 Biswas. 1/3 share out of the land measuring 19 Biswas, was mutated in favour of the sons of deceased. Thereafter, Roda Ram has been shown to be the co- owner in the column of Maliq Adna. As per Ex. P-10, copy of Jamabandi for the year 1958-59, he has been shown to be the sole owner of the land measuring 45 Bighas 7 Biswas in village Khillian. He has also been recorded to be the owner in possession in village Khillian of the land measuring 40 Bighas 18 Biswas as per the Jamabandi for the year 1968-69, Ex. P-18. Shri Roda Ram - 11 - has become owner in possession of the suit land after enforcement of abolition of Papsu Ala Malkiat Rights Act. Thus, both the Courts below have correctly come to the conclusion that the property situate in village Khillian was self acquired property and it was not ancestral and coparcenary property. Shri Roda Ram had become owner in possession of land situate in village Gulab Pura and Sauri Gujjran. He has purchased land measuring 32-14 bighas for a consideration of `3,000/- from owner in village Gulab Pura on the basis of sale deed dated 22.05.1965 as per Ex. P-19. He has also purchased land measuring 11-16 bighas for a consideration of `6,500/- vide sale deed Ex. PW-3/D, dated 27.05.1967 situate in village Souri Gujjran. There is no material on record that defendants No. 1 and 2 had made any contribution for purchasing this land. Shri Roda Ram had also sold land measuring 4-9 bighas situate in village Khillian for a consideration of `2,000/- on 25.06.1965 vide Ex. PW-3/A. 15. Mr. Bhupender Gupta, learned Senior Advocate has vehemently argued that the Will dated 15.10.1967, Ex. DW-11/A has been validly executed and the findings recorded by both the Courts below that it was shrouded by suspicious circumstances are liable to be set aside. The Will in question has been scribed by Ram Singh. According to him, he has scribed the Will at the instance of Shri Roda Ram in the presence of Shri Mal Ram and Churah Ram. Shri Roda Ram put his thumb mark on the will in his presence and in the presence of three witnesses and the witnesses also thumb marked and signed the will in the presence of testator. The original will has not been placed on record by the defendants. According to them, the Will was destroyed as per Ex. - 12 - D-5, certificate. They have not led any secondary evidence to prove the will. 16. DW-13 Shri Churah Ram has testified the execution of the will by Shri Roda Ram and scribed by Shri Ram Singh (DW- 11) in the presence of Shiv Ram and Mal Ram attesting witnesses. Shri Ram Singh has scribed the will. Thus, he could not be treated as an attesting witness. He has put his signature as scribe and not as attesting witness. 17. According to DW-11, he was called to his house by Roda Ram. He has scribed the will at Nalagarh. Thereafter, he went to the house of Roda Ram in village Khillian, where he and the witnesses signed and thumb marked the will. If the testator had desired to execute the will, he could have executed the same at Nalagarh on the same day. Thereafter, it was taken to the witnesses at village Khillian. The will has been written at Nalagarh in the presence of marginal witnesses. Why the will was written at Nalagarh and taken to village Khillian has not been explained satisfactorily. Moreover, there are contradictions in the statement of DW-13 Churah Ram. He has stated that the will was written in the presence of witnesses in village Khillian, where it was executed in the presence of witnesses and later on stated that it was first written at Nalagarh and thereafter executed at village Khillian. 18. Shri Roda Ram, as per the evidence was well conversant with Urdu, Sanskrit and Hindi languages. However, in Ex. PW-11/A, he has put his thumb impression. Why he has put his thumb impression when he was well conversant with three languages has not been explained. DW-11 Ram Singh has though tried to explain that since Roda Ram was not well and his hands - 13 - were trembling, he put his thumb mark on the same. This version of Ram Singh (DW-11) cannot be accepted. There is an endorsement in the will dated 03.05.1968, whereby the same was produced by Shri Roda Ram before the Sarpanch. DW-13 Churah Ram has not stated anything about this fact that S/Shri Mal Ram and Shiv Ram are dead. Similarly, Ram Singh has not stated that the will was produced before the Sarpanch. DW-11 at the time of scribing the will was only 17 years’ old. The will was written in the absence of the witnesses at Nalagarh and executed at village Khillian. DW-13 has also deposed that when he was called, no-one was present there and he thumb marked the will. It is also not explained why the legal heirs of first degree have been excluded in the will. The defendants have failed to prove the valid execution of the will dated 15.10.1967 and both the Courts below have rightly come to the conclusion that the will is shrouded by suspicious circumstances. 19. Their Lordships of the Hon’ble Supreme Court in Niranjan Umeshchandra Joshi versus Mrudula Jyoti Rao and others, (2006) 13 SCC 433 have held that it is for the propounder to remove suspicious circumstances by leading cogent evidence. Their Lordships have further held that it has also to be proved that testator had signed out of his free will having a sound disposition of mind and not a feeble and debilitated mind, understanding well the nature and effect thereof. Their Lordships have held as under: “32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which - 14 - proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai