1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA. RSA. No. 340 of 1999. Judgment Reserved on: 27.8.2009 Date of Decision: 18.9.2009 Bessi Devi …Appellant Versus Chatru Devi and another … Respondents Coram The Hon’ble Mr. Justice Kuldip Singh,Judge Whether approved for reporting? Yes For the appellant: Mr. Balwant Singh, vice Mr. K.D. Sood, Advocate. For the respondents: Mr. B.K. Malhotra, Advocate. Kuldip Singh, J The plaintiff has come in appeal against judgment, decree dated 21.8.1999 passed by learned District Judge, Kullu in C.A. No.39 of 1998, reversing judgment, decree dated 22.6.1998 passed by learned Senior Sub Judge, Lahaul Spitti at Kullu, exercising powers of Sub Judge Ist class, Kullu in Civil Suit No.172 of 1994. 2. The facts in brief as pleaded by the appellant is that she being the daughter of Dhani Ram is entitled to his estate as per her share alongwith respondents after the death of Dhani Ram on 2.3.1994. The further case of the appellant is that respondent _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 No.1 is the daughter and respondent No.2 widow of Dhani Ram. The respondents in connivance with each other with a view to grab the property left by Dhani Ram have forged a Will dated 11.6.1990 allegedly executed by Dhani Ram and got mutation No.1918 attested in their favour. In fact Dhani Ram had not executed any Will in favour of respondents. The respondents on the basis of alleged Will have started causing unlawful interference and threatened to dispossess the appellant from the joint possession over the suit land. The appellant has filed the suit for declaration with consequential relief of injunction and in alternative for joint possession. 3. The suit was contested by the respondents by filing written statement and they have taken several preliminary objections such as locus standi of the appellant to file the suit, there is no cause of action to file the suit, the appellant is not the heir of Dhani Ram nor appellant is in possession of the suit land, the appellant has not approached the Court with clean hands and she has suppressed the true and material facts from the Court. The objections of valuation and jurisdiction were also taken. On merits, the respondents have pleaded that appellant is not the daughter of Dhani Ram. Dhani Ram had executed a Will dated 11.6.1990 in favour of the respondents and the mutation No.1918 has been rightly attested in their favour. In replication the appellant has denied the case of the respondents and reasserted her case. 4. On the pleadings of the parties, the following issues were framed:- 3 1. Whether the suit in the present form is not maintainable, as alleged ?OPD 2. Whether the suit is properly valued for the court fee and jurisdiction? OPP 3. Whether the plaintiff and defendants are joint owners in possession of the suit land after the death of Dhani Ram? OPP 4. Whether deceased Dhani Ram executed a valid ‘Will’ in favour of defendants on 11.6.1990, as alleged? OPD 5. Whether the plaintiff is entitled to joint possession of suit land as prayed for? OPP 6. Relief. The trial Court has held that issue No.1 had become redundant and decided against the respondents, issue No.2 was not pressed, issues No.3 and 5 were answered in affirmative while issue No. 6 in negative and the suit was decreed on 22.6.1998. In appeal filed by defendants learned District Judge has set aside the judgment, decree dated 22.6.1998 and dismissed the suit. Hence plaintiff has come in second appeal which has been admitted on the following substantial questions of law: 1. Whether the judgment of the District Judge is vitiated for non-consideration of the evidence and presumption raised by sections 112 and 145 of the Evidence Act of exclusive proof of legitimacy of the birth of the appellant during the substance of marriage of Dhani Ram with Utti? 2. Whether the District Judge has mis-construed the basic document of title Ex.DA, the Will executed by Dhani Ram and wrongly accepted the Will of Dhani Ram which was shrouded with suspicious circumstances, both as to its execution and the testamentary capacity of Dhani Ram, more so when the prepounders had taken the active part in the execution of the Will? 4 3. Whether the plaintiff was entitled to decree for injunction in view of her settled joint possession of the property with defendants? 5. Heard and perused the record. The learned counsel appearing on behalf of the appellant has submitted that learned lower appellate Court has erred in not appreciating the appellant was born to respondent No.2 from subsisting marriage between Dhani Ram and respondent No.2 and therefore, under Section 112 of the Evidence Act, the appellant shall be presumed the daughter of Dhani Ram. The evidence on the point that appellant is the daughter of Dhani Ram has been misconstrued, misinterpreted by learned lower appellate Court. The execution of Will Ex.DA has not been proved. The appellant is entitled to injunction as she is in settled joint possession of the suit property. On the contrary, learned counsel appearing on behalf of the respondents has submitted that appellant has failed to prove that she is the daughter of Dhani Ram. The appellant has no locus standi to challenge the Will of Dhani Ram, even though the respondents have proved due execution of Will Ex.DA. The Section 145 of the Evidence Act has no bearing in the case in hand. He has supported the impugned judgment, decree. 6. The substantial question of law No.1 is taken first for disposal. PW-1 Bessi Devi has stated that Dhani Ram was his father and respondent No.2 is the wife of Dhani Ram, her parents were married 1 ½ years prior to her birth, her father has died. PW-2 Tara Chand has stated that Dhani Ram was his real uncle 5 (Chacha). The appellant was born 1 ½ years after the marriage of Dhani Ram and Uttii. PW-3 Mehar Chand, Head Teacher Government Primary School, Gojra has proved certificate Ex.PW- 3/A. In cross-examination he has stated that there is nothing in the record who got the child admitted in the school. PW-4 Dev Dutt has proved certificate abstract Ex.PW-4/A. In cross- examination he has stated that the entry in the register is not of his hand. The learned counsel for the appellant had tendered in evidence certificates Ex.PA, Ex.PB, copy of jamabandi Ex.PC and plan Ex.PD. PW-6 Shakti Dass has stated that he does not know Utti Devi and he had no illicit relations with her. 7. DW-1 Smt. Utti has stated that before her marriage with Dhani Ram she had relations with Shaktu with whom she lived for eight months and during that period she became pregnant. Later on her relations with Shaktu had strained. She got married with Dhani Ram in the month of Asauj. She delivered female child after three months Bessi Devi. In cross- examination she has denied that Bessi is daughter of Dhani Ram. She has also denied that plaintiff is not daughter of Shaktu. She reiterated that she had delivered the child and she knows the reality. 8. DW-4 Brij Lal has stated that he and Shaktu are residents of same village, Lohali is the wife of Shaktu. Shaktu earlier brought one woman namely Utti defendant No.2 present in the Court. She lived with Shaktu for 7/8 months. Thereafter she left. 6 9. The learned counsel for the appellant has relied Ex.PW-3/A school leaving certificate of Bessi Devi wherein she has been shown daughter of Dhani. In Ex.PW-4/A copy of Family Register showing vaccination state of members Bessi Devi has been shown daughter of Deni. There is nothing on record to show that at whose instance entry was made in the school record showing Bessi Devi as daughter of Dhani. PW-3 Mehar Chand has placed on record Certificate Ex.PW-3/A but in cross- examination he has stated that there is nothing on record at whose instance the child was admitted in the school. He has also stated that when the child is admitted in the school then signatures are obtained. Similar is the case with respect to Ex.PW-4/A. PW-4 Dev Dutt has stated that he has prepared certificate abstract Ex.PW-4/A from the record but the relevant entry is not of his time. In view of this evidence Ex.PW-3/A and Ex.PW-4/A showing plaintiff as daughter of Dhani or Deni are of no help to the appellant. 10 As per Ex.PA one female child was born to Dhani and Utti on 28.8.1964. As per Ex.PB one female child was born to Dhani Ram and Utti on 16.10.1960. The date of birth of Chatru in Ex.PW-4/A has been shown 28.8.1964. Therefore, entry of female child recorded in Certificate Ex.PA is not of plaintiff. In Ex.PW-4/A, one Bessi has been shown of five years but there is nothing on record that in which year Bessi was of five years. In Ex.PB one female child is shown to have born to Dhani 7 Ram and Utti on 16.10.1960. There is nothing on record to show at whose instance the entry was made in Ex.PB. 11. The most important evidence in this regard is the statement of DW-1 Utti, she clearly and unequivocally has stated that before her marriage with Dhani Ram she had relations with Shaktu and became pregnant and she gave birth to plaintiff after three months of her marriage with Dhani Ram. DW-1 is admittedly the mother of plaintiff; she is the best person to prove the paternity of plaintiff. There is no reason to disbelieve the statement of DW-1 on the point that plaintiff is the daughter of Shaktu and not of Dhani Ram. The presumption under Section 112 of the Evidence Act is a rebutable which has been rebutted in the present case by respondents. They have proved that plaintiff is not the daughter of Dhani Ram. The plaintiff was born to defendant No.2 after three months of her marriage with Dhani Ram. 12. The defendant No.2 has stated that Dhani Ram was aware of the pregnancy of defendant No.2 from Shaktu but despite that he opted to marry defendant No.2. It dependants upon person to person how he reacts in a given situation. It appears Dhani Ram had accepted defendant No.2 even though at the time of his marriage with defendant No.2 she was pregnant from Shaktu. Dhani Ram accepted defendant No.2 with a child in her womb from another man and for that reason he took on himself the responsibility to bring up, look after, and maintain the child namely plaintiff but that will not give the plaintiff legal status 8 of daughter of Dhani Ram. The plaintiff is not the Daughter of Dhani Ram is also supported from the fact that in Will Ex.DA her reference has not been given. The appellant has failed to establish that she is the daughter of Dhani Ram. The learned District Judge has rightly appreciated the material on record regarding the paternity of plaintiff. It is a finding of fact which emerges from the evidence on record. The learned counsel for the appellant has failed to establish that the view taken by learned District Judge regarding the paternity of appellant is based upon mis-construction and misinterpretation of oral and documentary evidence on record on this point. It cannot be said that the view taken by learned District Judge is perverse. The section 145 of the Evidence Act has no application in the present case. The substantial question of law No.1 is decided against the appellant. 13. The substantial questions of law No.2 and 3 can be conveniently disposed of collectively, therefore both the questions are taken up together. It is the case of the respondents that Dhani Ram had executed a Will Ex.DA in their favour. The execution of the Will has been proved by DW-2 Panna Lal an attesting witness. DW-3 Sita Ram is the scribe of the Will Ex.DA who has stated that he had written the Will on the instructions of Dhani Ram in presence of marginal witnesses. The learned counsel for the appellant has submitted that the Will is shrouded with suspicious circumstances in as much as the name of appellant has not been mentioned in the Will Ex.DA. The learned counsel for the respondents has submitted that name of 9 appellant has been rightly omitted by testator in the Will as appellant is not the daughter of testator. He has submitted that in these circumstances omission of name of appellant in Will Ex.DA is not a suspicious circumstances. The testator had the testamentary capacity to execute the Will, no other alleged suspicious circumstance has been proved. The execution of the Will Ex.DA has been proved. The appellant is not the daughter of testator; she has no locus standi to challenge the Will. It is not the case of the appellant that during the life time of Dhani Ram he parted with possession of the suit property and put appellant in possession of the suit property. The appellant is married. On the basis of Will Ex.DA the respondents have every right to hold and possessed the property left by Dhani Ram. The appellant has failed to prove how she came in possession of the land in dispute after the death of Dhani Ram. The substantial questions of law No.2 and 3 are also decided against the appellant. 14. No other point was urged. 15. As a result of above discussion, appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh) Judge September 18, 2009 (sks)