RSA No.1013 of 1994 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.1013 of 1994 (O&M) Date of Decision: October 31, 2011 Charan Singh and another ......Appellants v. Amar Singh and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.M.L.Sarin, Sr.Advocate with Mr.Nitin Sarin, Advocate for the appellants. Mr.J.K.Sibal, Sr.Advocate with Mr.Puneet Jindal, Advocate for respondent nos.1 and 2. ..... RAM CHAND GUPTA, J. Facts giving rise to the present regular second appeal are as under:- Dispute is regarding inheritance of estate of Hazara Singh, husband of respondent -plaintiff Smt. Sodhan Kaur (since deceased and represented by her legal representatives, i.e., present respondents no.1 and 2). The property in dispute is described in the heading of the plaint and the same is situated in Village Bhalowal, Tehsil Phillaur, as per jamabandi for the year 1982-83, in village Fatehpur, Tehsil Phillaur, as per jamabandi for the year 1983-84, and in village Fatepur, Tehsil Phillaur, as per jamabandi for the year 1983-84 and described in the heading of the plaint as (a), (b) and (c ) respectively. Admitted facts are that Hazara Singh died issueless on 27.3.1986 leaving behind his wife, Smt.Sodhan Kaur as the only legal heir RSA No.1013 of 1994 (O&M) -2- to inherit his estate. Plaintiff has filed this suit for declaration that she is entitled to inherit the property left by deceased Hazara Singh with consequential relief of possession. She has challenged judgments and decrees dated 10.10.1984 and 29.5.1984 passed by the Court of then Sub Judge Ist Class, Phillaur against her husband Hazara Singh and in favour of Charan Singh and Bachan Singh, the present appellants-defendants on the ground that the same are illegal, null, void, without consideration and are a result of fraud, misrepresentation and coercion. Plea has been taken that Hazara Singh was having no knowledge about the said decrees passed against him and that a fraud was committed upon him. Hazara Singh during his lifetime had given statement in another case titled as Charan Singh and another v. Surjan Singh and others, in which he denied having suffered any such decrees in favour of appellants-defendants. Present appellants-defendants contested the suit on the ground that decrees dated 10.10.1984 and 29.5.1984 were voluntarily and legally suffered by Hazara Singh in their favour and that the decrees are legal and binding upon the plaintiff. However the fact that respondent-plaintiff is wife of Hazara Singh and that Hazara Singh died issueless on 27.3.1986 is not denied. Specific plea has been taken that Hazara Singh appeared in those proceedings alongwith his counsel and made statement in both the aforementioned suits admitting the case of present appellants-defendants and hence, it is denied that any fraud was committed upon Hazara Singh by the appellants -defendants in getting the said decrees passed in their favour. Plea has also been taken that Hazara Singh during his lifetime also executed a Will dated 3.8.1983 regarding his entire property in favour of appellants-defendants and the said Will was also got registered. RSA No.1013 of 1994 (O&M) -3- In replication, respondent-plaintiff denied execution and validity of any such alleged Will by Hazara Singh in favour of appellants- defendants. From the pleadings of the parties, the following issues were settled by learned trial Court:- “1. Whether the decrees dated 10.10.1984 and 29.5.1984 passed in favour of defendants no.1 and 2 in respect of the disputed land are illegal and void? If so, its effect? OPP 2. Whether the plaintiff is entitled to the possession of the suit land as owner? OPP 3. Whether the deceased Hazara Singh executed a valid Will dated 3.8.1983 in favour of the defendants no.1 and 2. If so, its effect? OPD 4. Whether the suit as framed is not maintainable? OPD 5. Whether the plaintiff is estopped by his act and conduct to file the present suit? OPD 6. Whether the suit is barred by time? OPD 7. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD 8. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP 9. Whether the plaintiff has no locus standi to file the present suit? OPD 10. Relief.” Parties adduced evidence in support of their respective contentions before learned trial Court. Learned trial Court decided issue RSA No.1013 of 1994 (O&M) -4- no.1 in favour of respondent-plaintiff by holding that decrees dated 29.5.1984 and 10.10.1984, Ex.D3 and Ex.D5 were not legal and hence, the same do not effect the rights of the plaintiff in the property in dispute and the mutation sanctioned on the basis of those decrees also do not confer any right upon the present appellants-defendants. Issues no.2 and 3 were discussed together and it was held that Will Ex.D1 is not a valid document and hence the same is having no effect on the rights of respondent-plaintiff to inherit the property of her husband Hazara Singh. Issues no.4 and 9 were also decided in favour of plaintiff. Issues no.5,6,7 and 8 were also decided in favour of plaintiff. In view of the findings on various issues, suit filed by respondent-plaintiff was decreed with cost by learned trial Court. Aggrieved against the said judgment and decree passed in favour of respondent-plaintiff by learned trial Court, present appellants- defendants filed appeal before learned Additional District Judge, Jalandhar, which was also dismissed vide impugned judgment and decree dated 9.3.1994. Aggrieved against the said judgment and decree passed by learned Additional District Judge, Jalandhar, the present regular second appeal has been filed by appellants-defendants which was admitted by this Court vide order dated 28.10.1994 without framing substantial questions of law, as required under Section 100 of the Code of Civil Procedure (for short the `Code'). A Full Bench of this Court in the case of Ghanpat v. Ram Devi AIR 1978 Punjab and Haryana 137 had taken a view that in view of RSA No.1013 of 1994 (O&M) -5- Section 41 of the Punjab Courts Act, the amended provisions of Section 100 of the Code, as amended in 1976, were not applicable to the second appeals filed in this Court and accordingly, no substantial question of law was framed, nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon'ble Apex Court in the case of Kulwant Kaur v. Gurdial Singh Mann (dead) by LRs (2001) 4 JT SC 158 : (AIR 2001 SC 1273) has held that after amendment of Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act, i.e., Code of Civil Procedure and therefore was to be ignored and therefore, the second appeal shall only lie to this court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. It may be mentioned here that though question of law was not framed at the time of admission of present appeal, and however, it has been observed by Full Bench of this Court in Dayal Sarup v. Om Parkash (since deceased) through L.Rs and others (2010-4)160 PLR 1, that this Court can formulate question of law as contemplated under Section 100 of the Code at any point of time before hearing of the appeal, even without amending the grounds of appeal. It has also been held that it is the duty of the Court to formulate substantial question of law while hearing the appeal under Sections 100(4) and 100(5) of the Code and question of law can be permitted to be raised at any stage of proceedings. Hence, in view of this legal background, though the appeal was admitted without framing any substantial question of law, however, counsel for the appellants was permitted to file substantial questions of law, stated to be arising in this appeal. RSA No.1013 of 1994 (O&M) -6- Learned counsel for the appellants filed the following substantial questions of law, stated to be arising in this regular second appeal in terms of Section 100 of the Code, which were taken on record and the same are as under:- “1. Whether the Courts below have illegally rejected the Will, Ex.D1 on conjectural and erroneous grounds? 2. Whether the judgments and decrees of the Courts below are vitiated as both the Courts have overlooked the most material fact that the Will Ex.D1 is a registered documents? 3. Whether the Will Ex.D1 is surrounded by suspicious crestaces? 4. Whether the Will Ex.D1 has been misread? 5. Whether the judgments and decrees, Ex.D2 and D4 have been rightly set aside when there is no evidence of fraud or misrepresentations? 6. Whether the courts below have misread the oral and documentary evidence on the record? 7. Whether the judgments and decrees of courts below are perverse?” I have heard learned senior counsel for the parties and have gone through the whole record carefully. At the very outset it may be mentioned here that an application under Order 41 Rule 27 read with Section 151 of the Code for producing additional evidence was filed on behalf of appellants-defendants on 13.12.2006, though the appeal pertains to the year 1994. Vide the said RSA No.1013 of 1994 (O&M) -7- application, prayer was made to allow appellants-defendants to produce the following documents by way of additional evidence:- “(i) certified copies of the sale deeds annexed as A1-A6; (ii) the photocopy of the bank account book annexed as A- 7; (iii) the photocopy of the passport of Sh.Hazara Singh annexed as A-8; (iv) The photocopy of the passport of Smt.Saudhan Kaur annexed as A-9 (v) The certified copy of the statement made before the trial court by Sh.Hazara Singh annexed as A-10.” It has been contended by learned senior counsel for the appellants-defendants that the documents are necessary for decision of present case and the same could not be produced by appellants-defendants before the Courts below despite exercise of due diligence. It has been further contended that vide various sale deeds property owned by Smt.Sodhan Kaur was sold by her during lifetime of Hazara Singh. It is further contended that there was joint account of Hazara Singh and Sodhan Kaur and a substantial amount was withdrawn from the said account by Hazara Singh, which was given to Smt.Sodhan Kaur. Copy of passport sought to be produced to show that Hazara Singh was in the country at the time of execution of Will. On the other hand it has been contended by learned senior counsel for the respondent-plaintiff that application for additional evidence filed by appellants-defendants was not a bona fide one and that rather the same has been filed just to further delay the decision of the case as the RSA No.1013 of 1994 (O&M) -8- litigation is pending since the year 1986 and that the present appellants- defendants want to remain in illegal possession of the property in dispute. It is further contended that the application does not fulfill the requisite conditions prescribed under Order 41 Rule 27 of the Code for adducing additional evidence. It has also been contended that the documents and the evidence now sought to be produced was within the knowledge of appellants-defendants and that it cannot be said that the same could not be produced despite due diligence before learned Courts below. It is also contended that the documents and the evidence are not such which are required by this Court to pronounce the judgment or for any other substantial cause. Rather the plea has been taken that the documents sought to be produced are irrelevant and the same are not at all necessary to set aside the concurrent finding of fact recorded by both the Courts below in favour of respondent-plaintiff. Law on the point of allowing additional evidence to be adduced by any party before appellate Court under Order 41 Rule 27 has been well settled by Hon'ble Apex Court in Mahavir Singh v. Naresh Chandra 2001 (1) RCR (Civil) 454: 2001(2) Civ.C.C.708: 2001 AIR (SC) 134, relevant paragraph of which reads as under:- “5. Before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27 CPC. Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under Order XLI, Rule 27 CPC. Principle to be observed ordinarily is that the appellate court should not RSA No.1013 of 1994 (O&M) -9- travel outside the record of the lower court and cannot take evidence on appeal. However, Section 107(d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled, as of right, to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in Kesowji Issur v. G.I.P.Railway, AIR 1931 PC 143, in which it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI, Rule 27 CPC envisages certain circumstances when additional evidence can be adduced : (i) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was RSA No.1013 of 1994 (O&M) -10- passed,or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific equipment from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression to enable it to pronounce judgment has been subject of several decisions including Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence [ See : The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008]. But a mere RSA No.1013 of 1994 (O&M) -11- difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words or for any other substantial cause must be read with the word requires, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kesowji Issur v. G.I.P.Railway [supra]. It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh & Ors. vs. Mehnga Ram & Others., 1997 (6) SCC 507: 1997 (3) RCR (Civil) 712 (SC), in which the RSA No.1013 of 1994 (O&M) -12- scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order XLI, Rule 27 CPC was considered. When this decision was cited before the High Court, the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.” If ratio of the said decision is applied to the facts of present case this Court is of the view that appellants are having no right to adduce evidence at this belated stage. The litigation is pending since the year 1986. No such application for adducing additional evidence was filed before learned trial Court. No such application was also filed before learned first appellate Court. The present appeal before this Court was filed in the year 1994. The application was not filed alongwith the appeal. The application was filed after about 12 years of filing of the appeal before this Court, i.e., in the year 2006. The case is not covered under Clause (i) of Order 41 Rule 27 of the Code, as aforementioned. The present case also cannot be said to be covered under Clause (ii) as it cannot be said that evidence now sought to be produced was not within knowledge of the appellants-defendants and the same could not be adduced by them notwithstanding the exercise of due diligence. So far as Clause (iii) is concerned it cannot be said that documents now sought to be produced are such which are required by this court to pronounce the judgment or for any other substantial cause. It has come in evidence that deceased Hazara Singh alongwith his wife Smt.Sodhan used to reside together. They were having joint bank account. Some of the property was purchased by Hazara Singh in the name of RSA No.1013 of 1994 (O&M) -13- Smt.Sodhan. Smt.Sodhan was having no independent income. Hazara Singh used to earn while living in England and used to purchase the property during his lifetime. He had been asserting ownership of the entire property including the property which was in the name of Smt.Sodhan. Hence, even if it is taken that some property in the name of Smt.Sodhan was sold by her during lifetime of Hazara Singh, it cannot be said that said sale deeds are such documents without which judgment cannot be pronounced by this Court. Further even if it is taken that the some amount was withdrawn from the joint account by Hazara Singh before execution of Will, the same cannot be said to be a sufficient ground to disinherit Smt.Sodhan from the property owned by Hazara Singh. Even copies of passports of Smt.Sodhan and Hazara Singh are not such documents without which judgment cannot be pronounced by this Court as there is no dispute that Hazara Singh and Smt.Sodhan used to reside in England and they also used to visit India off and on. Hence, in view of these facts, it cannot be said that the application filed by appellants-defendants under Order 41 Rule 27 read with Section 151 for adducing additional evidence is of any merit and, hence, the same is, hereby, dismissed. It has been further contended by learned senior counsel for the appellants that judgments and decrees suffered by Hazara Singh in favour of present appellants are valid one and that Hazara Singh appeared through counsel in the Court and filed admitted written statement in both the cases and that he also suffered statement in the Courts which passed the decrees admitting the claim of appellants-defendants. Hence, it is contended that both the Courts below committed illegality in arriving at the conclusion RSA No.1013 of 1994 (O&M) -14- that the decrees are result of fraud and coercion. It is further contended that the decrees being validly suffered by Hazara Singh are also not required to be registered as per law. It is further contended that moreover the said point has also been decided by learned first appellate Court in favour of appellants-defendants. He has also argued that plea of fraud like any other charge, whether made in civil or criminal proceedings, must be stated beyond reasonable doubts and, however, suspicious may be the circumstances and, however strange the co-incidence and however, grave the doubts, suspicions alone can never take the place of proof. On the point he has placed reliance upon Union of India v. M/s.Chaturbhai M.Patel and Co., 1976 Current Law Journal (Civil) 166. On the point that consent decrees suffered by Hazara Singh in favour of present appellants-defendants do not require registration, he has placed reliance upon a judgment rendered by a coordinate Bench of this Court in Ved Pal alias Vedu v. Smt.Raj Rani, 2003(1) PLR 455; judgments rendered by Hon'ble Apex Court in Bachan Singh v. Kartar Singh and others, 2002(2) PLR 512; and in Som Dev and others v. Rati Ram and another, (2006) 10 Supreme Court Cases 788; and other judgments of this court rendered in Gurdev Kaur and others v. Mehar Singh and others, 1989 PLJ 182; and Hari Singh v. Gurcharan Singh and others, 2003(3) PLR 199. On the other hand it has been vehemently contended by learned counsel for the respondent-plaintiff that the decrees are challenged on the ground that the same are illegal and void. It is further contended that property is not proved to be ancestral in the hands of Hazara Singh and that it is also not the case of present appellants-defendants that the property in RSA No.1013 of 1994 (O&M) -15- the hands of Hazara Singh was ancestral. It is further contended that the property was purchased by Hazara Singh during his lifetime and hence, it was his self acquired property. It is further contended that there was no question of any family settlement as there was no joint Hindu family of Hazara Singh alongwith present appellants-defendants. Hence, it is contended that rights in the property in dispute were created for the first time vide judgments and decrees dated 29.5.1984 and 10.10.1984 by Hazara Singh deceased in favour of appellants-defendants without any consideration and that this fact is also clear from perusal of decrees Ex.D3 and Ex.D5 and hence, it is contended that no right in the property can be legally passed vide these decrees Ex.D3 and Ex.D5 in favour of appellants- defendants as the decrees require compulsory registration and that admittedly they were not got registered as required under Section 17(2)(vi) of the Registration Act (16 of 1908). On the point he has placed reliance upon a judgment rendered by Hon'ble Apex Court in Bhoop Singh v. Ram Singh Major, AIR 1996 SC 196. Ex.D2 is the judgment passed by learned Civil Judge Ist Class, Phillaur on 29.5.1984, which shows that the suit filed by present appellants- defendants against Hazara Singh deceased regarding property in