* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment Reserved on: 19.8.2010 Judgment Delivered on: 30.8.2010 + RSA No. 131/2010 & CM No.11769/2010 SHRI KISHAN CHAND SHARMA Appellant Through: Mr.Basant Kumar Gupta and Mr.Bijender Singh, Advocates. Versus SHRI GIAN PRAKASH SHARMA & ORS. Respondents Through: Mr.R.K. Bhardwaj and Mr. Dheeraj Bhardwaj, Advocates CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes INDERMEET KAUR. T. For orders see RSA No.75/2008. INDERMEET KAUR, J. AUGUST 30, 2010 nandan No. ^ ' Digitally Signed By:AMULYA Signature Not Verified 7 Bhardwaj, Advocates. RSA No.130/2010 & CM No.11766/2010 SH. RAM NIWAS SHARMA Appellant Through: Mr. S udhir Walia, Advocate Versus SHRI JAI LAL (Through LRs) & ORS. ..........Respondeiit.s Through: Mr.R.K. Bhardwaj and Mr. Dheeraj Bhardwaj, Advocates AND RSA No. 131/2010 & CM No.11769/2010 SHRI KISHAN CHAND SHARMA ..... . ...... Appellant Through: Mr.Basant Kumar Gupta and Mr. Bijender Singh, Advocates. Versus SHRI GIAN PRAKASH SHARMA & ORS. ..........Respondents Through: Mr.R.K. Bhardwaj and Mr. Dheeraj Bhardwaj, Advocates ND RSA _No.142/20 10 SHRI NARINDER KUMAR (Through LRs) ............Appellants Through: Mr.Som Dutt Sharma, Advocate. Versus SHRI JAI LAL (Through LRs) & ORS. .......... Respondents Through: Mr.R.K. Bhardwaj and Mr. Dheeraj Bhardwaj, Advocates. CORAM: HON'BLE MS. JUSTICE INDERMEET KAUR Whether the Reporters of loca' itiapers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes Whether the judgment should be reperted in the Digest? Yes RSANos.75, 84, 90, 106/2008 & RSA Nos. 130, 131., 142/2010 Page2of26 8 INDERMEET KAUR, I. C.M.Nos.7 127/2008 (for exemption) & 14450/2010 (for exemption) in RSA No.108/2008 Allowed subject to just exceptions. RSA No.75/2008 & CM No.4555/2008 (for stay) RSA No.84/2008 & CM No.5138/2008(for stay) RSA No. 90/2008 & CM No.5454/2008 (for stay) RSA No.108/2008 & CM Nos.7125/2008 (for stay) RSA No.130/2010 & CM No.11766/2010 (for stay) RSA No. 131/2010 & CM No.11769/2010(for stay) RSA No.142/20 10 -I 1. These are seven second appeals preferred by four appellants. They are (1) Ram Niwas, (2) Shri Kishan Chand Sharma, (3) Narender Kumar and (4) Subhash Bhardwaj. The dispute in all these cases relate to the right of inheritance of the four paisa share of Smt. Anar Devi in the deity, offerings/puja sewa made at the Kalkaji Temple; as also whether Smt.Anar Devi was competent to transfer this right when she herself being a lady could not have inherited the same. 2. Briefly stated the factual matrix of the case is as follows: i. Suit proceedings (wherefrom these appeals have arisen) had been initiated byJai Lal 5/0 Ram Swaroop. He has filed a suit for declaration and injunction seeking a decree of declaration in his favour declaring him to be the sole legal heir of Smt.Anar Devi in terms of a will dated 19.2.1972 executed by her in his favour, bequeathing all her immovable and movable properties to him. This also included the puja sewa which Smt.Anar Devi had allegedly inherited from her deceased husband Chunni Lal. Subject matter of the suit is these prayer offerings, deity puja sewa rights of Anar Devi in the Kalkaji Temple. RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 3 of26 9 4 Plaintiff Jai Lal is the son of Ram Swaroop, Ram Swaroop is the brother of Chunni Lal, the deceased husband of Anar Devi. Chunni Lal had two brothers namely Ram Swaroop and Daulat Ram. Ram Niwas subsequently impleaded in the suit proceedings was arrayed as defendant no.7. He claimed himself to be the grandson of the deceased Anar Devi. His version is that his mother Niyadri was the daughter of Anar Devi and Chunni Lal; Niyadri had pre-deceased her mother. Ram Niwas is claiming title of the suit property through his deceased mother. Kishan Chand is the son of Nityanand. Nityanand is the son of Daulat Ram. Daulat Ram is the brother of Chunni Lal. Kishan Chand is thus grandson of Daulat Ram who is the brother of deceased husband of Anar Devi. Narender is the son of Tula Ram. Tula Ram is the son of Ram Swaroop who is the brother of deceased Chunni Lal and the husband of Anar Devi. Narender is thus the grandson of Ram Swaroop the brother of deceased Chunni Lal. Subhash Bhardwaj is also the grandson of Daulat Ram. Daulat Ram as aforenoted is the brother of deceased Chunni Lal who was the husband of Anar Devi. 3. The present suit had been filed in the year 1974. The Trial Judge had disposed of the suit vide judgment and decree dated 16.8.1985. Five issues were framed initially, which read as follows: 1.WhetherAnar Devi executed a will dated 1.8.2.72 in favour of the plaintiff, if so, was she competent to bequeath the property in suit? RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 4 of26 10 11 handwriting expert who had come into the witness box as a defence witness DW-7 was gone into in detail; he had filed his report in Suit No.61/69; in view of the categorical ocular evidence i.e. testimony of the eye witnesses who had seen the executant execute the will was given weightage over and above the report of DW-7. In this context the testimony of the witnesses of the plaintiff in whose presence the will had been executed by Anar Devi had been upheld; the will was held to be duly executed. While disposing of this issue, the Court had also relied upon provisions of Section 14 and 30 of the Hindu Succession Act, 1956 to draw a conclusion that the property held by a female after the commencement of the Act would be held by her as a full owner and not as a limited owner. After the death of Chunni Lal on 4.12.1971 Anar Devi had become the absolute owner of all the properties both movable and immovable inherited by her from her husband. The Court had further held that the offerings in the temple were her absolute property which she had validly and legally bequeathed in favour of the plaintiff. While deciding additional issues no.1 and 2, it was held that defendant no.7 is not the son of Niyadri i.e. he is not grandson of Anar Devi; he has no right or title in the suit property. This judgment dated 16.8.1985 was assailed in first appeal. On 9.4.1994 the first Appellate Court decided the three appeals filed by Ram Niwas, Nihal Chand, Krishan Chand. Vide this judgment, appeals were allowed; matter was remanded back to the Trial Court with a direction that the evidence sought to be led by Ram Niwas i.e. the statement of Ram Niwas as also the statement of Kamla Sharma be recorded. To that extent the judgment and RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 6 of26 12 decree dated 16.8.1985 was modified. Fresh findings on issue no.1 and 2 were ordered to be recorded. The findings on the remaining issues, however, remained undisturbed. On 31.5.2000, the Court of the Civil Judge decided these additional issues. Suit of the plaintiff Jail Lal was decreed. Plaintiff was held to be the sole legal heir of Anar Devi and entitled to succeed to the properties both immovable and movable including the share of Anar Devi in the income of temple Kalkaji and also to perform puja sewa. Ram Niwas not being the grandson of Anar Devi was not entitled to any relief. This judgment and decree dated 31.5.2000 was the subject matter of a fresh round of litigation. On 1.12.2007 the Additional District Judge dismissed the appeals filed by Ram Niwas, Narender, Subhash Bhardwaj and Kishan Chand Sharma, they had impugned the judgment dated 31.5.2000. Against this judgment and decree dated 01.12.2007: Four '4 second appeals i.e. (a) RSA No.75/2008 was preferred by appellant Narender. (b)RSA No.85/2008 was preferred by appellant Kishan Chand S harma (C) RSA No.90/2008 was preferred by appellant Ram Niwas (d) RSA No.108/2008 was preferred by appellant Subhash Bhardwaj In the course of the hearing of these appeals on 13.8.2009 with the consent of the parties, the case was remanded back to the Additional District Judge to hear the appeals afresh on the grounds raised by them on all other issues except the grounds relating to issues no.1 and 2. On 19.2.2010 the Court of the Additional District Judge decided these appeals in terms of the direction of this Court dated RSANos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page7of26 13 4 13.8.2009. All the issues i.e. issue no.1 to 5 were decided in favour of the plaintiff and against the defendant. Appeals were dismissed. 14. Assailing the order dated 19.2.2010: RSA No.130/20 10 had been preferred by appellant Ram Niwas RSA No.131/2010 had been preferred by appellant Kishan Chand Sharma RSA No.142/2010 had been preferred by appellant Narender. Objections had been filed by appellant Subhash Bhardwaj on 25.5.2010 against his judgment and decree dated 19.2.2000. These objections were contained in CM No.14541/20 10. 15. Before this Court arguments have been urged by each of the appellants. Arguments by and large are common and overlap one another; they have all assailed the will dated 19.2.1972 executed by Anar Devi. It is contended that Anar Devi being a female could not have inherited the puja sewa rights from her deceased husband Chunni Lal. She herself having no title to this puja sewa she could not have bequeathed any such right in favour of Jai Lal. Attention has been drawn to the replication filed by Jai. Lal in the proceedings before the Trial Court which was the replication to the written statement of Subhash Bhardwaj wherein the plaintiff had stated that there is a custom prevailing that women can also perform puja/sewa. It is submitted that no such evidence has been led by the plaintiff before the Trial Court to substantiate his version that as on date there was a prevailing custom which enabled women also to participate in puja/sewa. Attention has been drawn to para 4 of the plaint wherein there is a reference to the will purported to have been executed by Anar Devi in favour of Jai Lal but a perusal of this document show that there is no mention of the puja sewa/offerings having been bequeathed to Jai Lal; the will is absolutely silent on this aspect. It is contended that RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 8 of26 14 4 this document has not been correctly interpreted by both the Courts below. These are substantial questions of law. On behalf of Kishan Chand Sharma in addition, it is submitted that Jai Lal (through his legal representatives) had filed a suit i.e. Suit No.146/2005. Attention has been drawn to the plaint filed therein; reference has been made to paras no.9 and 1.3. It is stated that in the plaint LRs of Jai Lal had made an admission that after the judgment of Sh.S.N.Kapoor passed on 01.2.1974 in Civil Suit No.61/69 wherein it had been held that no will could be executed of the offerings of the Kalkaji Temple; this judgment dated 1.2.1974 has become final. It is submitted that this averment was made by the plaintiff (Jai Lal though his LRs) himself in the aforenoted pleadings on which he cannot retreat. It is further submitted that Jai Lal had filed proceedings seeking a succession certificate in the year 1973 which were contested proceedings; Jai Lal had not raised any plea that he is entitled to the puja offerings of the Kalkaji Temple; this was a regular civil suit under Section 295 of the Indian Succession Act and the said proceedings are binding. Arguments have been countered by learned counsel for the respondents. It is pointed out that this Court is sitting in second appeal and can only examine substantial questions of law if they have arisen. The memos of appeal filed by the appellants in each of the RSAs before this Court have not raised any substantial question of law. It is submitted that the question of authenticity of the will has already been gone into by the Ti'ial Court,; this is a fact finding enquiry. Attention has been drawn to the written statement filed by Narender in the Trial Court where in para no.3, RSANos.75, 84, 90, 108/2008 &RSANos. 130, 131, 142/2010 Page9of26 10 15 it has been admitted that Anar Devi had executed a will in favour of Jail Lal and he would entitled to inherit her estate. It is submitted that Narender has made a clear and categorical admission before the Trial Court about the authenticity of the will; he cannot now challenge it. Even otherwise the question as to whether the pia offerings are the subject matter of a bequeath or not has also been gone into in detail by both the fact finding Courts. The document i.e. the will Ex.PW-1/A dated 19.2.1972 has been scrutinized in 4 detail. None of these issues can now be re-agitated in a second appeal. The appeals are liable to be dismissed in limine. Additional arguments propounded by the learned counsels for the appellants in rebuttal have been dealt with in the subsequent paragraphs. Arguments have been heard in depth and in detail. The memos of appeal containing the questions of law as enumerated by each of the appellants have also been perused. (i) Appeals filed by Narender are RSA No.75/2008 and RSA No.142/20 10. Substantial question of law raised in the first appeal relate to the findings of the first Appellate Court dated 9.4.1994. These findings of the first Appellate Court dated 9.4.1994 had been modified by an order of this Court dated 13.8.2009 whereby the Additional District Judge had been directed to rehear the appeals on all issues except additional issues no.1 and 2 on which a finding had already been returned on 31.5.2000 and reaffirmed on 1.12.2007. The first five issues framed in the suit were decided vide the judgment dated 19.2.2010. The substantial questions of law raised in RSA No.142/2010 have also been perused. They lay a challenge to the authenticity of the will dated 19.2.1972. As pointed out by the learned counsel for the RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 10 of26 16 respondent, in the written statement appellant Narender has in fact admitted the execution of the will by Anar Devi in favour of Jai Lal with the further submission that Jai Lal is entitled to succeed to the estate of Anar Devi including the puja sewa of the Kalkaji temple. It does not now lie in the mouth of the present appellant to assail the authenticity of the will. He has however challenged the interpretation of the document; his submission being that the entire document i.e. the will is silent on the bequeath of the puja sewa/offerings; there is no whisper of the same. The memo of appeal and the substantial questions of law raised by Kishan Chand Sharma are contained in RSA No.82/2008 and RSA No.131/2010; they relate to the applicability of the provisions of Order II Rule 2 of the Code. In this second appeal, it has been contended that the right of worship and to receive offerings of the deity is not transferable. Further the provisions of XII Rule 6 of the Code had not been adhered to and the Courts '4 below had disregarded the order dated 1.7.2005 which was an order passed by Additional District Judge on this application. The third set of appeals has been filed by Ram Niwas which are RSA No.90/2008 and RSA No.130/2010. The substantial questions of law enumerated in the body of the first appeal relate to the authenticity of the will; whether a mere registration of the will satisfies the test of Section 68 of the Indian Evidence Act and would be a sufficient proof for its due execution. It is submitted that where the defence raised is that the will has been executed under suspicious circumstances, it is for the propounder of the will to discharge this burden. The same substantial questions of law have been raised in the second appeal. RSANos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 11 of26 17 (iv) The last set of appeals have been preferred. by Subhash Bhardwaj i.e. RSA No.108/2008. It is contended that the will has purported to bequeath a property which is unbequeathable (a woman is not entitled to inherit puja/sewa rights); Anar Devi thereby could not have acquired any such right by way of inheritance from Chunni Lal; she herself not having any title to the subject matter of the suit, could not have passed any better title to Jai Lal. Provisions of Order II Rule 2 CPC had also not been considered by the two fact findings Courts below; a suit for declaration without any consequential relief was also not maintainable. In this appeal on 25.5.2010, objections have been filed which are contained in CM No.14541/2010. Learned counsel for the appellant Subhash Bhardwaj has placed reliance upon a judgment reported in [1975] 1 SCR 728 KKGangulyVs P.Baner/ee to substantiate his submission that under Hindu Law although shebaiti rights are inheritable like any other, property, yet it lacks the other incident of proprietary rights i.e. the capacity of being freely transferred by the person in whom it is vested. It is stated that there are three exceptions to this rule; the third of which speaks of a custom which is the contention of the plaintiff in his replication yet he has chosen not to lead any evidence on this score to establish that custom had permitted Anar Devi to inherit the puja sewa rights. Puja sewa offering rights could not have been transferred to a woman; yet the finding of the Court that the Will had bequeathed these rights in favour of Jail Lal is an illegality. Reliance has been placed upon another judgment reported in [1985] 3 S C R Shamhhu Charan Shukia Vs. ThakurLali Radha Chandra Madan Gopal/i Maliaraj & Anr to support this RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 12 of26 18 submission. This Court is sitting in second appeal. Section 100 of the Code was amended in 1976 to curtail second appeals with the laudable object of not increasing arrears in High Courts. As recently as in 2009 RLR 27(NSC) Koppi Setty V.Ratnam Vs Pamarti Venka Supreme Court has held that the High Court in their anxiety to do justice is unnecessarily interfering with concurrent findings of fact and are ignoring the mandate of the amendment that second appeals should be only be on a question of law which again must be a substantial question of law. The object of this amendment as per the report of the Law Commission was that any rational system of law should have only hearings on questions of facts; one by the Trial Court and other by the first Appellate Court as a search for the absolute truth. Thereafter there must be reasonable restraint to reconcile which is based on the doctrine of finality. Finality is absolutely necessary to give certainty to law. At some stage the questions of fact must be allowed to rest without re-agitating them again. This legislative intent was clear at the time when Section 100 was amended; the second Appellate Court cannot be a third trial of facts. It is in this background and backdrop that the arguments addressed before this Court have to be appreciated. The impugned judgment has drawn out the chequered history between the parties. It has been a long drawn litigation between the parties spanning over several generations; it had started in 1974 and even after more than three and a half decades the parties are still litigating. 22. The dispute between the parties relate to the devolution of RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 13 of26 19 () the rights of late Anar Devi to perform puja/sewa and the income of the Kalkaji Temple. Anar Devi was the wife of Chunni Lal. Chunni Lal as a pujari was having a share in the puja/sewa which was the income of the Kalkaji Temple to the extent of four pies in a rupee. Chunni Lal and Anar Devi had a daughter namely Niyadri. Niyadri was married to Sohan Lal. Niyadri had pre-deceased her mother. As per the plaintiff, she had died issueless. As per the defendants she had died leaving behind her son Ram Niwas who had subsequently been impleaded in the present suit as defendant no.7. Chunni Lal died on 04.12.1971. Anar Devi died on 20.8.1973. After his death Anar Devi succeeded to his estate. In suit No.61/1969 which was a suit under Order I Rule 8 of the Code relating to the puja/sewa rights of the Kalkaji Temple; Anar Devi was one amongst other widows; being the widow of Chunni Lal she had also got share of the puja/sewa amounting to Rs.20,833/-. DW-1 Kishan Chand has admitted all these facts in his cross- examination. There is no dispute to this fact. 23. Anar Devi had purportedly left a will dated 19.2.1972 (registered on 9.3.1972) in favour of Jai Lal who was her nephew being the son of her brother-in-law i.e. the son of Ram Swaroop. Present suit was filed by Jai Lal seeking a declaration that he was the sole legal heir of Anar Devi in terms of the will dated 19.2.19 72 and was entitled to succeed to her estate both immovable and moveable which included the share of Anar Devi in the puja/sewa of the Kalkaji Temple. There were six defendants originally of whom Kishan Chand, Narender, Subhash Bhardwaj were all arrayed as defendants. Kishan Chand was defendant no.1; Narender was defendant no.6; Subhash Bhardwaj is claiming RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 14 of26 II 20 * 4 through Nihal Chand defendant no.3; Ram Niwas claiming to the grandson of Anar Devi had moved an application under Order 1 Rule 10 of the Code pursuant thereto he had been impleaded as defendant no.7. The suit was contested by defendants no.4 to 6 which included the present appellant Narender (defendant no.6) before this Court. In his written statement he had admitted that Anar Devi had executed a will dated 19.2.1972 in favour of Jai Lal; she was competent to do SO; further her puja/sewa offerings were a part of her properties; this estate has devolved upon Jai Lal. These admissions are contained in paras 3,4,8,10 and 11 of the said written statement. Kishan Chand (defendant no.1) another appellant had also contested the suit; he had filed his written statement jointly along with defendants no.2 and 3. Kishan Chand had moved an It application before the first Appellate Court under Order 12 Rule 6 of the Code seeking a decree on admission; the said application had been rejected by the Court on 01.7.2005 holding it to be an abuse of process of the court, which order had attained a finality. It has not been challenged. Question of an incorrect appreciation of the said order does not now arise. Submission of the learned counsel for the appellant that the provisions of Order II Rule 2 of the Code would be applicable is misconceived; submission being based on the plea that since Jai Lal had applied for a succession certificate in proceeding no.146 of 1974 which had been granted to him, he had not made any specific averments about the puja/sewa offerings; he cannot now raise this plea. This argument has to be noted only to be rejected. The proceedings for the grant of RSA Nos.75, 84, 90, 108/2008 & RSA Nos. 130, 131, 142/2010 Page 15 of26 21 succession certificate under Part X of the Indian Succession Act 1925 are a summary proceeding. The cause of action