IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 143 of 2008. Decided on September 23, 2010 Budhi Ram ..Appellant. Versus Lachhman & others ..Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes. For the appellant Sh. Shrawan Dogra, Advocate. For respondent No. 1 S/Sh. Ashwani Sharma and K.C.Sankhyan, Advocates. For respondents 2 to 5 Mr. T.S.Chauhan, Advocate. Surjit Singh, Judge (Oral) This appeal by defendant (Budhi Ram) is directed against the judgment and decree, dated 17.1.2008, of learned Additional District Judge (first appellate Court), whereby dismissing the appeal of appellant-defendant, a declaratory decree to the effect that plaintiff is entitled to get his 1/3 share of the suit land, with further decree of injunction, passed by the trial Court in favour of respondent Lachhman, has been affirmed. Whether reporters of the local papers may be allowed to see the judgment? - 2 - 2. Plaintiff-respondent Lachhman, filed a suit for declaration, claiming himself to be joint owner of suit property, to the extent of 1/3rd share, in village Matwana and entitled to exclusive possession of area, equivalent to his share in the said property. By way of further relief, he prayed for issuance of permanent prohibitory injunction, restraining the appellant- defendant and one Hiru Ram, now represented by his legal representatives, proforma respondents herein, from raising any construction on the suit land, till partition. 3. Admitted facts are that Sant Ram, father of plaintiff-respondent, appellant-defendant Budhi Ram, and deceased defendant Hiru Ram, was owner in possession of the suit land, as also 10 bighas, 16 biswas land, situated in another village. Suit land is situated in village Matwana, while the other land, measuring 10 bighas 16 biswas, is situated in village Billour. Both the villages are in Tehsil, Ghumarwin of District Bilaspur. Sant Ram executed a Will on 15.12.1979, Ex. P-1, bequeathing thereby his entire property, that is to say, property situated in both the above named villages, to his three sons and wife Chando Devi in equal shares, but disposition made in favour of Chando Devi, was only till her life, that is to - 3 - say, only life time interest was created in her favour. Plaintiff-respondent filled a petition for partition of suit property, situated in village Matwana. Mode of partition was sanctioned. Order, sanctioning mode of partition, was challenged before the Collector. Order of Collector, copy of which is available on record as Ex.DA, shows that appellant-defendant, challenged the mode of partition on the ground that out of the suit land, area, measuring 9 bighas 18 biswas, bearing Khasra No. 143, had been willed away to him, by his father Sant Ram, in lieu of his share, bequeathed vide Will Ex.D-1, by means of an affidavit sworn on 14.10.1981. Collector allowed the appeal and remanded the case to the revenue officer, holding that question of title was involved and that before proceeding further in the matter, that question needed to be determined. 4. Thereafter, suit out of which this appeal has arisen, was filed by the plaintiff. Plaintiff claimed 1/3rd share in the suit property, on the strength of Will Ex.P- 1 and sought declaration that he was entitled to 1/3rd share in the entire suit property, situated in village Matwana. 5. Appellant-defendant contested the suit. Third brother of the parties, named Hiru Ram, was also - 4 - impleaded as defendant. He did not file any written statement. He died the during pendency of litigation. His legal representatives were brought on record. They also did not file any written statement. Appellant, in his written statement, took the same plea, which he had raised in the partition proceedings, reference to which is there in the aforesaid order, Ex.DA, of the Collector. 6. Learned trial Court observed that since partition proceedings were pending before the Assistant Collector Ist Grade, and the said Assistant Collector was the right forum to decide as to whether Khasra No. 143 had been given to the plaintiff, as per affidavit or not, finding by the Court on the question would be pre mature. Learned first appellate Court observed that if a private partition had already taken place, as declared in the affidavit Ex.DW-3/A, even before the execution of the Will, such a fact was supposed to have been got incorporated in the Will itself and thus the swearing of affidavit, appeared to be an after- thought. 7. This appeal was admitted on the following substantial question of law: Whether the courts below have mis- appreciated and mis-interpreted the document Ex.DW-3/A? - 5 - 8. I have heard learned counsel for the parties and gone through the record. 9. Two Courts below have failed to discharge their statutory duty. Learned trial Court failed to exercise the jurisdiction vested in it and the learned first appellate Court, without recording a definite finding, whether the affidavit had been properly sworn or not, or what was its effect, made a vague kind of observation, that it was an after-thought. Affidavit Ex.DW-3/A is in the nature of a codicil. It was attested by two witnesses, in the manner of execution of a Will or codicil, and thereafter it was presented to Oath Commissioner for attestation. Appellant examined one of the attesting witnesses of this affidavit. He is DW-3 Shri Mohar Singh, Pradhan of the Gram Panchayat. The witness, in no uncertain terms, testified that Sant Ram got affidavit Ex.DW-3/A, scribed from an Advocate, named Sh. K.D.Dharmani and that after it was scribed, the scribe read over and explained its contents to Sant Ram, who affixed his thumb impression and thereafter, he (the witness) and one Durga Dass, Up Pradhan, put their signatures and after that, it was presented to the Oath Commissioner for registration. The witness - 6 - proved not only the execution of the document by Sant Ram, but also its attestation by himself and by Durga Dass, the other attesting witness. Nothing surfaced in cross examination of the witness, indicating that he was, in any way, interested in the appellant-defendant, or had any motive to harm the interests of the plaintiff, or the third brother of the parties, named Hiru. Though a suggestion was put to the witness that the affidavit had been prepared after the death of Sant Ram, at the same time, another suggestion was put to him on behalf of the plaintiff-respondent, that he put his signatures on the affidavit, only as an identifier of the deponent, which fact implies that document was prepared, when Sant Ram was alive. Lachhman, plaintiff appeared in the witness box twice, once in support of the issues, onus of which was upon him and second time, to rebut evidence of the defendants, with regard to the issues, onus of which had been placed upon the defendants. Second time, he appeared, after evidence of Mohar Singh, one of the attesting witnesses of writing, Ex.DW-3/A, had been recorded. Even, in his second testimony, he did not say that Mohar Singh or Durga Dass, witnesses of writing Ex.DW-3/A were interested in the appellant or - 7 - had any axe to grind with him, by attesting the affidavit which according to him is not genuine. Above stated position apart, it appears from declarations made in the affidavit Ex.DW-3/A, which is in the nature of a codicil, having been executed in the same manner as the Will is required to be executed, that the appellant-defendant has not been given anything, in excess of 1/3rd of the total property, situated in both the villages. Deceased had only three sons. He wanted to give 1/3rd share to each of his three sons, though he did create life interest in favour of his widow also. There is a declaration in the affidavit that appellant-defendant had been given in a family arrangement Khasra No. 143, the area of which measures 9 bighas 18 biswas, or say, equivalent to almost 1/3rd of total holding of the deceased, in both the villages. This particular area had been given to the defendant-appellant, because of his having initially dug a well in it and thereafter having sunk a tube well in it. The fact that some private distribution of property had been done by Sant Ram, even prior to the execution of the Will and swearing of affidavit Ex.DW-3/A, is corroborated even by the conduct of the respondent plaintiff. He has not included in the suit property, land situated in the second village, that is village Billour. - 8 - The reason is that the same is in his exclusive possession and it is he, who is enjoying its usufruct. 10. Now, when Ex.DW-3/A is in nature of a codicil altering the Will set up by the respondent- plaintiff, it (the codicil) has to be read, as part of the Will and the Will is required to be given effect to accordingly, at the time of partition, by metes and bounds. 11. Learned counsel for the respondent-plaintiff submits that the fact that this document, Ex.DW-3/A had not been produced at the time of attestation of mutations, in respect of the property of Sant Ram, situated in two villages and that the mutations were attested on the basis of Will Ex.P-1 alone, itself suggests that Ex.DW-3/A, was prepared subsequently. Submission has been noticed only to be rejected. Property, situated in both the villages, was being recorded in the name of Sant Ram, so long as he was alive. It was not being shown in possession of his sons, leave alone specific portions being shown in possession of each of the three sons. Therefore, it was not possible to give effect to affidavit Ex.DW-3/A, at the time of attestation of mutation of San t Ram’s estate. Affidavit, Ex.DW-3/A could have been given effect to only when any of the joint owners sought - 9 - partition by metes and bounds. And as soon as the plaintiff-respondent filed an application before the Assistant Collector for partition of the suit property, affidavit was produced and exclusive possession of Khasra No. 143, was claimed by the appellant- defendant, in lieu of his share, on the basis of the same. 12. For the foregoing reasons, substantial question of law is answered in favour of the appellant- defendant. Consequently, appeal is accepted, judgments and decrees of the two Courts below are set aside and the suit filed by the plaintiff-respondent, is dismissed. September 23, 2010 (PC). (Surjit Singh) Judge.