IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.42 of 2000 Judgment reserved on : 17.9.2010 Date of decision : 11.11.2010 ____________________________________________________ Anil Mahajan and Ors. …Appellants. Versus Savitri Chaudhary and Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the appellants : Mr. K.D. Sood, Advocate. For the Respondents : Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate, for respondent No.1. Mr. Varun Chandel, vice Mr. Sandeep Sharma, Advocate, for respondents No.2 to 6. Kuldip Singh, J The appellants are the successors-in-interest of defendant No.1 and have assailed judgment, decree dated 24.9.1999 passed by learned District Judge, Chamba in Civil Appeal No.45 of 1994, affirming judgment, decree dated 8.8.1994 passed by learned Senior Sub Judge, Chamba in Civil Suit No.13 of 1987 ( Dalhousie Court). 2. The respondent No.1 had filed a suit for declaration regarding property described in the plaint situate at Dalhousie, Tehsil Bhattiyat, District Chamba on the averments that her father Shiv Ram _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? 2 Mahajan was owner in possession of suit property. He died on 1.4.1969 and after his death the suit property has been inherited by the parties and their mother Smt. Raj Kumari widow of Shiv Ram Mahajan. It has been pleaded that Smt. Raj Kumari had also died intestate on 25.10.1985. The respondent No.1 has claimed that she is owner in possession of 1/9th share in the suit property. 3. The further case of respondent No.1 is that Amrti Lal Mahajan father of appellants in connivance with respondents No.2 and 3 and to deprive other heirs of Shiv Ram Mahajan had executed family settlement dated 30.7.1983 vide which Amrit Lal Mahajan and respondents No.2 and 3 to the exclusion of respondent No.1 and others had partitioned the suit property amongst themselves. The respondent No.1 is not bound by the so called family settlement dated 30.7.1983. Amrit Lal Mahajan and respondents No.2,3 had manipulated frivolous entries in the revenue record which are not binding upon respondent No.1. 4. It has been alleged that respondents No.7,8 on the basis of alleged Will of Smt. Raj Kumari have instituted some probate proceeding in the Delhi High Court. Smt. Raj Kumari was not mentally and physically fit to execute Will in favour of respondents No.7 and 8, who have procured Will from Smt. Raj Kumari by practicing fraud and coercion. The respondent No.1 is not bound by any Will, if any set up by respondents No.7 and 8. On these averments the suit was filed by respondent No.1 on 21.3.1987. 5. The suit was contested by defendant No.1 Amrit Lal Mahajan, he took preliminary objections of maintainability, estoppel, 3 limitation, non-joinder of necessary parties. It was alleged that Shiv Ram Mahajan, in sound disposing mind on 28.4.1964 had executed a Will of his entire estate in favour of Amrit Lal Mahajan and respondents No.2 and 3, as such respondent No.1 has no locus standi to file the suit. On merits, he admitted his relationship with respondent No.1 and with other respondents being his brothers and sisters. Shiv Ram Mahajan had died on 1.4.1969. 6. The further case of Amrit Lal Mahajan was that, he alongwith respondents No.2,3 was owner in possession of property left by Shiv Ram Mahajan on the basis of Will dated 28.4.1964 of Shiv Ram Mahajan. He denied ownership and possession of respondent No.1 on the suit property. He asserted that he and respondents No.2,3 had entered into agreements dated 21.4.1970, 28.5.1981 and 30.6.1983 to the knowledge of respondent No.1. He had supported the revenue entries. 7. It is also the case of Amrit Lal Mahajan that after the death of his father he had developed some portion of the suit property by spending more than Rs.4 lacs. Amrit Lal Mahajan had also projected the case that he alongwith respondents No.2,3 had been coming in exclusive possession openly, continuously, peacefully and with hostile animus and had acquired adverse possession on the suit property. The respondent No.1 has not prayed for further relief of possession and partition, hence the suit is not maintainable. The objection of improper valuation of suit was also taken. 8. The respondents No.3 had filed separate written statement and contested the suit and pleaded that respondent No.1 has no locus 4 standi to file the suit. It has been alleged that Shiv Ram Mahajan during his life time had given his entire property to Amrit Lal Mahajan and respondents No.2 to 4 except upper portion of Oak Villa which was given to Bhushan youngest brother. Bhushan died on 14.1.1971 and his share was given to Raj Kumari mother. He alleged family settlement dated 30.7.1983 which was confirmed on 6.7.1985. The respondent No.1 is not in possession of any part of the suit property, therefore mere suit for declaration does not lie. He has taken objection that proper court fee has not been affixed on the plaint, the suit is bad for mis-joinder and non-joinder of necessary parties. Smt. Raj Kumari mother of the parties had died on 25.10.1985. She had executed a Will in favour of respondents No.7 and 8. The respondent No.3 has prayed for dismissal of the suit. 9. The respondent No.7 had filed a separate written statement in which she has taken preliminary objections of locus standi of respondent No.1 to file the suit, estoppel. She has pleaded family settlement dated 30.3.1983 which was confirmed on 6.7.1985. According to respondent No.7 the family settlement was in between respondents No.2,3,4 and Smt. Raj Kumari as well as Amrit Lal Mahajan predecessor-in-interest of appellants. The respondent No.7 has further pleaded that Shiv Ram Mahajan during his life time had given all the properties to respondents No.2 to 4 and Amrit Lal Mahajan except upper portion of Oak Villa which was given to Smt. Raj Kumari mother. The respondent No.1 has filed the suit in collusion with respondent No.2. The respondent No.1 is not in possession of the suit properties, therefore, mere suit for declaration does not lie. She has 5 taken objection of improper court fee as well as mis-joinder and non- joinder of necessary parties. Smt. Raj Kumari mother of the parties had died on 25.10.1985 and she had executed a registered Will in favour of respondents No.7 and 8. 10. The respondents No.2,5 had filed written statement and admitted the claim of respondent No.1. The respondents No.4,6,8 were proceeded exparte. The respondent No.1 had filed replication to the written statement of respondent Amrit Lal Mahajan and reiterated her case set up in the plaint. 11. On the pleadings of the parties the following issues were framed :- 1. Whether the suit property is jointly owned and possessed by the parties to the suit in equal shares as alleged? ....OPP 2. Whether the partition of the suit property between defendants No.1 to 3 vide deed dated 30.7.1983, is illegal and not binding on the rights of the plaintiff and proforma defendants No. 4 to 8 as alleged? ..OPP 3. Whether the revenue entries on the basis of partition document dated 30.7.83 in favour of defendants No.1 to 3 are illegal, wrong and liable to be set as side? ….OPP 4. Whether the plaintiff has no locus standi to file the suit? ..OPD-1. 5. Whether the plaintiff is estopped to file the present suit on account of acquiescence waiver and estopped as alleged? OPD-1. 6. Whether defendants No.1 to 3 have become owners of the suit property by adverse possession as alleged? OPD-1. 6 7. Whether suit is collusive as alleged? …OPD-3 8. Whether suit in the present form is not maintainable as alleged? ..OPD-1 9 Whether suit is properly valued for the purpose of court fee and jurisdiction? OP Parties 10. Whether suit is bad for mis-joinder and non joinder of the parties? ….OPD .1 11. Whether the suit is within time? OPP 12. Whether Sh. Shiv Ram Mahajan executed a valid will dated 28.4.1964 in favour of his sons if so, to what effect? OPD-1 13. Whether the parties to the suit entered into agreement dated 21.4.1970, 28.5.1981 and 30.7.1983 and acted thereupon. If so, to what effect? OPD-1 14. Whether the defendant No.1 has spent more than Rs.Four lacs on the improvement of the properties in his possession? If so, to what effect? OPD-1 12. The issues No.1,2,3, 9,and 11 were answered in affirmative, remaining issues were answered in negative and suit was decreed on 8.8.1994, the respondent No.1 was declared owner in possession of 1/9th share in the suit property. The Will dated 28.4.1964 Ex.DW-4/1 allegedly executed by Shiv Ram Mahajan was declared wrong, illegal and not binding on respondent No.1. The family settlement dated 30.7.1983 Ex.D-10 was also declared wrong, illegal and not binding on respondent No.1. The learned District Judge on 24.9.1999 has affirmed the judgment, decree dated 8.8.1994, hence second appeal which has been admitted on following substantial questions of law:- 7 1. Whether the court below has misconstrued the basic document title to Will Ex.DW-4/1 and the agreement DW- 1/43 as also the provision of Section 63 of the Indian Succession Act and the statement of DW-1 Amrit Lal DW- 5 Nand Kishore and DW-6 Padam Menon which has vitiated the findings? 2. Whether there were any suspicious circumstances attached to the execution of the Will of Shri Shiv Ram Mahajan and the mere fact that the near relation was disinherited could be treated as a ground for rejecting the Will? 3. Whether the pleadings of the charges as also oral and documentary evidence have been misread and misconstrued and wrong inferences have been drawn therefrom and in holding that the defendant was not in adverse possession of the property more so when the appellant was in exclusive, hostile and open possession of the property since 1970 and had made improvements on the same? 4. Whether the decree holding that the plaintiff was entitled to 1/9th share was maintainable when as per the allegations of the plaintiff she was only entitled to 1/12th and 1/10th share of 2/12the share of the property even if the Will was ignored. The share worked out by the court below is not in accordance with the provisions of the Hindu Succession Act? 5. Whether in view of the judgment of the Hon’ble Supreme Court reported in 1951 Supreme Court 193, the judgment of the District Judge is vitiated for having dismissed the application for additional evidence without considering the fact that the Additional evidence was necessary for satisfactory pronouncing the judgment? 8 13. I have heard learned counsel for the parties and have also gone through the record. Mr. K.D. Sood, Advocate learned counsel for the appellants has submitted that the Courts below have misconstrued basic documents Will Ex.DW-4/A and agreement Ex.DW- 1/43. The statements of DW-1 Amrit Lal Mahajan, DW-5 Nand Kishore and DW-6 Padam have been misconstrued, Section 63 of the Indian Succession Act has also not been properly construed. It has been submitted that disinheritance of near relation in the Will is no ground to reject the Will. The plea of adverse possession has not been legally considered. It has been contended that as per allegations in the plaint the respondent No.1 at the most is entitled to 1/12the share in the property even if Will is to be ignored. The learned District Judge has erred in dismissing the application for additional evidence before considering the appeal on merits. The learned counsel for the appellants has prayed for acceptance of appeal and dismissal of the suit. 14. Mr. G.D. Verma, Senior Advocate has supported the impugned judgment, decree. He has submitted that two Courts below have recorded a finding of fact regarding execution of Will, family settlements against the appellants, their predecessor-in-interest Amrit Lal Mahajan. He has submitted that appellants have failed to prove execution of Will Ex.DW4/1. The respondent No.1 is not party to alleged family settlements and therefore, the alleged family settlements projected by appellants are not binding on respondent No.1 nor appellants can take benefit under those family settlements to deny rightful claim of respondent No.1 in the suit property. He has submitted 9 that no fault can be found with the separate dismissal of additional evidence application by learned District Judge. The learned Senior Advocate has prayed for dismissal of the appeal. 15. In order to complete the facts, it is necessary to point out that the suit was earlier decreed by trial Court on 30.11.1990 but in Civil appeal No.1/91 on 23.3.1994 the learned District Judge remanded the case to learned trial Court. After remand, the learned trial Court has decreed the suit on 30.11.1990 and the decision dated 30.11.1990 has been affirmed by learned District Judge on 24.9.1999. 16. The substantial question of law No. 5 is taken first. The learned counsel for the appellants has submitted that learned District Judge has dismissed the application for additional evidence on 5.7.1999, whereas the main appeal was decided on 24.9.1999. On 8.4.1999, the learned District Judge has ordered consideration of the application for additional evidence with the main appeal, but on 5.7.1999 the additional evidence application was considered and not the appeal. In support of his submissions he has relied Arjan Singh vs. Kartar Singh & others AIR 1951 SC 193, Himanshu vs. Bishan Dutt and others Latest HLJ 2006 (HP) 118, North Eastern Railway Administration, Gorakhpur vs. Bhagwan Dass (D) by L.Rs. AIR 2008 SC 2139 and M/s. Eastern Equipment & Sales Ltd. vs. ING. Yash Kumar Khanna AIR 2008 SC 2360. 17. In substance, the submission of learned counsel for the appellants is that learned District Judge without considering the appeal on merits has erred in dismissing the application for additional evidence and has thus erred in law. In view of submissions made 10 by the learned counsel for the appellants, the question left for determination is the procedure to be followed for considering the additional evidence application by the appellate court. 18. It emerges from the aforesaid three judgments of the Supreme Court that additional evidence application is to be considered by the appellate court alongwith the appeal. In Himanshu (supra), a Division Bench of this court has held that only under clause (b) additional evidence can be produced at the stage of final hearing of the appeal, but in so far as the situations occurring or arising under clause (a) or (aa) are concerned, a party can apply/ pray to the appeal court for permission to lead additional evidence at any stage of proceeding in the appeal, not necessarily at the final hearing of the appeal. 19. The learned appellate court after dismissing the application for additional evidence on 5.7.1999 fixed the appeal for arguments on 9.8.1999. It indicates that appeal was not heard on 5.7.1999 by the learned appellate court. The learned District Judge committed procedural error in not considering the additional evidence application alongwith the appeal, but whether for this lapse the impugned judgment, decree of the suit which was filed on 21.3.1987 should be set aside. The parties are already litigating for the last 23 years. Therefore, the connected question is whether the additional evidence application filed by appellants in the lower appellate Court can be considered now by this Court in second appeal. 20. The appellants in the grounds of appeal have stated that order dated 5.7.1999 was assailed in Civil Revision No. 205 of 1999 but that was dismissed as interlocutory. The appellants now have 11 assailed the order dated 5.7.1999 in the appeal against judgment, decree dated 24.9.1999. Section 108 of the Code provides that part- VII relating to appeals from original decrees shall, so far as may be, apply to appeals from appellate decrees. Section 107 of the Code which is also in Part VII provides that subject to such conditions and limitations as may be prescribed, the appellate court shall have power to determine a case finally, to remand a case; to frame issues and refer them for trial and to take additional evidence or to require such evidence to be taken. In other words in an appeal against the appellate decree, the appellate court has all powers of order 41 Rule 27 CPC. Thus in the present appeal, the application under Order 41, Rule 27 CPC, filed by the appellants in the lower appellate court can be considered. 21. The learned counsel for the parties have been heard on merits in the appeal alongwith the application under Order 41 Rule 27 CPC. The learned counsel for the appellants has prayed for allowing the application for additional evidence for proving the documents annexed with the application. The perusal of additional evidence application would show that appellants have placed on record photocopy of order dated 19.6.1946 of Income Tax Officer, Gurdaspur for the assessment year 1946-47 of M/s. Shiv Ram and sons, photocopy of order dated 22.8.1956 of Income Tax Officer, Gurdaspur for the assessment year 1956-57 of M/s. Shiv Ram and sons, photocopy of statement of accounts ending on 31.3.1954 of Ms. Shiv Ram and sons, photocopy of income tax related order dated November, 1953, attested copy of order dated 29.3.1979 of Income 12 Tax Officer, Palampur, attested copy of agreement dated 21.4.1970, attested copy of letter dated Nil allegedly written by Raj Kumari to Income Tax Officer, attested copy of order dated 16.12.1976 passed by Appellate Assistant Commissioner of Income Tax, Patiala Range. The documents prior to 28.4.1964 are not relevant in the context of Will dated 28.4.1964. 22. The respondent No. 1 admittedly was not a party before the Income Tax Authorities. The letter dated Nil allegedly written by respondent No. 1 to Income Tax Officer refers to agreement dated 21.4.1970 that business has been partitioned at Dalhousie and Amritsar by Amrit Lal, Dhan Raj, Kuldip Chand, Madan Lal and Bhushan and they would be responsible for the assets and liability of their businesses. In the said letter of respondent No. 1, there is no reference of will of Shiv Ram Mahajan. The agreement dated 21.4.1970 is already on record and has been considered in the impugned judgment. There is a reference of will in the agreement dated 21.4.1970, but respondent No. 1 is not a party to agreement dated 21.4.1970. The execution of will is to be considered on well settled principles. 23. The suit was filed on 21.3.1987, the application for additional evidence in the lower appellate court was filed on 22.12.1998. Due diligence for not producing the documents referred in the additional evidence application has not been explained. Mere reproduction of statutory provision regarding due diligence is not enough, what is necessary are the facts to establish the due diligence. It has been stated in the application that documents could 13 not be produced earlier because these were old documents and were in the custody of Income Tax Lawyer and were not in the knowledge of appellants. This is not wholly correct, inasmuch as, the agreement dated 21.4.1970 Ex.DW1/43 has already been placed on record. There is nothing in the application under what circumstances the income tax documents came to the notice of appellants and who gave them information regarding income tax documents, when appellants were not aware of such documents. The application for additional evidence filed in the lower appellate court is not bonafide. The documents which are required to be proved by the appellants by way of additional evidence, in my opinion, are not necessary in order to adjudicate the real controversy between the parties. The substantial question of law No.5 is accordingly held that learned District Judge has erred in dismissing the additional evidence application on 5.7.1999 by not considering the additional evidence application at the time of hearing of the appeal, but it is held that appellants have failed to make out any case for additional evidence. Thus additional evidence application filed by appellants is dismissed. The substantial question of law No.5 is accordingly decided against the appellants. 24. The substantial questions of law No.1 and 2 are interconnected; therefore, these substantial questions of law are taken up together for consideration. Ex.DW-4/1 is the Will dated 28.4.1964 of Shiv Ram Mahajan, Ex.DW-1/43 is the agreement dated 21.4.1970 between Amrit Lal, Dhan Raj, Madan Lal, Kuldip Chand and Bhushan, all sons of Shiv Ram Mahajan. DW-4 Nand Kishore son of Dr. Danpat Rai has stated that on 28.4.1964 Shiv Ram had executed a Will in his 14 presence. H.C. Dass and one typist were also sitting there. After him one advocate Menon also came there. Shiv Ram had signed the Will in his presence as well as in presence of H.C. Dass. He and H.C. Dass also signed the Will in presence of Shiv Ram. The Will is Ex.DW-4/1. The three sons were to get the property as per Will. The wife of Shiv Ram was also to get the property as per Will. In cross- examination he has stated that he cannot tell the name of typist who typed the Will. He came a day before and stayed in the hotel of Amrit Lal. So far he remembers only one copy of Ex.DW-4/1 was prepared. Ex.DW-4/1 is the original. 25. D3/W1 Madan lal has stated that his father Shiv Ram had died in the year 1969 and during his life time he had distributed his properties among the witness, Amrit Lal, Dhan Raj, Kuldip Kumar, Kulbhushan and their mother. After the death of father, the brothers had family settlement, in which mother Smt. Raj Kumari was also given share. In cross-examination he has stated that their father before his death had not distributed the properties. The family settlements took place in the years 1970, 1983 and 1985. He had not seen Ex.DW-4/1 earlier. He has seen Will Ex.DW-4/1 for the first time in the Court. He has admitted his signatures on agreement Ex.DW1/43. He has denied that Ex.DW1/43 was executed on the basis of Ex.DW-4/1. He has denied the signatures of his father on Ex.DW-4/1. In cross- examination conducted on behalf of Amrit Lal it was suggested to this witness that his father had distributed the properties among his sons during his life time. 15 26. DW-5 Nand Kishore Sekari has identified the signatures of his father H.C. Dass on Will Ex.DW-4/1. He has proved the death certificate of his father Ex.DW1/CP1. PW-6 Padam Menon has stated that in March, April, 1964 Shiv Ram Mahajan took his help for execution of Will and on 28.4.1964 Shiv Ram Mahajan had executed Will which was dictated to typist by the witness at the instance of Shiv Ram Mahajan. At that time typist, Shiv Ram, H.C. Dass and Nand Kishore were already present before he reached there. The Will was read over to him and after accepting its correctness Shiv Ram put his signatures. The witness H.C. Dass and Nand Kishore had also signed the Will in his presence which is Ex.DW-4/1. In cross-examination he has stated that the typist was Ramji Dass. He had come to Chamba twice for making statement on the request of Atma Ram. At the time of arguments in appeal he was in the Court for short time. He did not think it proper to put his signatures on the Will. 27. The perusal of Will Ex.DW4/1 shows that Shiv Ram Mahajan had given his properties at Dalhousie to his wife Smt. Raj Kumari and Amrit Lal, Kuldip Kumar, Madan Lal his sons. The business at Amritsar and Dalhousie had been given to Amrit lal, Madan Lal and Kuldip Kumar sons. The provision was also made that in case legatees die before the testator then whom the properties would go. Ex.DW-1/43 dated 21.4.1970 between Amrit Lal, Dhan Raj, Madan Lal, Kuldip Chand and Bhushan provides that Amrit Lal, Dhan Raj, Madan Lal, Kuldip Chand and Bhushan are owners of properties left by Shiv Ram at Dalhousie as per his Will. The contents of the Will are in contradiction to the agreement Ex.DW1/43 which has also been relied 16 by appellants in support of