IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.338/1996 and Cross-objection No.78 /1997 Judgment reserved on: 3.7.2008 Decided on.: 1.8.2008 Lesaru Ram. …Appellant/Non-objector. Versus Bahari Devi and others …Respondents/Objectors. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1 yes For the appellants / : Mr. Bhupender Gupta, Senior Advocate. Non-objectors. with Ms. Charu Gupta, Advocate. For the respondents/ : Mr. K.D.Sood, Advocate. Objectors. Rajiv Sharma, J. Since common questions of law and facts are involved in the Regular Second Appeal No. 338/1996 and Cross Objection No. 78/1997, these were taken up together for hearing and are being decided by a common judgment. 1 Whether the reporters of Local Papers may be allowed to see the judgment?. yes 2 RSA No. 338/1996: The brief facts necessary for the adjudication of this Regular Second Appeal are that the respondents-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a civil suit in the Court of Senior Sub Judge, Kullu for declaration with consequential relief of injunction. Appellant-defendant No.1 (hereinafter referred to as ‘the defendant’ for convenience sake) resisted and contested the suit filed by the plaintiff by filing a detailed written statement. The learned trial court decided issues No.1 and 2 against the plaintiffs and the suit was partly decreed by declaring the plaintiffs to have inherited 1/3rd share in the property of Surat Ram as described in the plaint and having, therefore, become joint owners in possession therein along with defendants, who were also held to have inherited 1/3rd share in the estate in dispute of deceased Sh. Surat Ram. The mutation No.906 dated 14.6.1982 sanctioned in favour of defendant No.1 Lesaru Ram on the basis of will dated 26.3.1981 was declared null and void and not binding on the plaintiffs. Consequently, the defendants were restrained from interfering in the ownership and possession of the plaintiffs and to alienate the 1/3rd share of the plaintiffs in the suit property. The plaintiffs and the defendants filed separate appeals bearing Civil Appeal No. 81/1995 and Civil Appeal No. 90/1995 against the judgment of the trial court. The plaintiffs were primarily aggrieved by the findings recorded by the learned trial court with regard to issues No.1 and 2. The learned Additional District Judge dismissed both the appeals bearing Civil Appeal No.81 of 1995 and Civil Appeal No. 3 90 of 1995 preferred by the respective parties on 31.5.1996. This Regular Second Appeal has been preferred by the defendant Lesaru Ram against the judgment and decree dated 31.5.1996. The Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the findings of both the learned courts below regarding the limitations are apparently illegal, erroneous and perverse, could the suit filed by the plaintiffs-respondents after about 11 years of the death of the testator be held to be within limitation assailing the will? 2. Whether the courts below have erroneously assumed jurisdiction to reject the will on the ground not alleged and proved by the plaintiff- respondents? Is not necessary for the caveator to precisely enumerate the ground on the basis of which the genuineness of the will was challenged? 3. Whether both the learned courts below have ignored from consideration the law relating to the appreciation of the circumstances to ascertain the validity of the will? 4. Whether the certificate of the Sub Registrar on the ‘Will’ will carry with it the presumption of truth, when the will is registered and the attesting witnesses have been examined to prove the due execution and attestation, are the findings rendered by the courts below holding the will not properly proved to be executed are erroneous? 5. Whether in the absence of any cogent material available on the record the findings of possession recorded in favour of the plaintiff-respondents are illegal and perverse? Whether the courts below have erroneously granted a decree of injunction in 4 favour of the plaintiff/respondents when the courts below held to be in joint possession and there was no evidence regarding forcible dispossession in the alleged possession of the plaintiff? Cross Objection No. 78/1997: The plaintiffs have filed the cross-objections against the judgment and decree dated 31.5.1996 whereby the learned Additional District Judge, Kullu has affirmed the findings recorded by the learned trial court on issues No.1 and 2. Mr. Bhupender Gupta, Senior Advocate had strenuously argued that the judgment and decree dated 31.5.1996 passed in Civil Appeal No. 81/1995 are not sustainable in the eyes of law. He also contended that the will Ex.DW-2/A dated 26.3.1981 was executed in accordance with law. He further contended that on the basis of the will, mutation No. 906 has also been attested in favour of his client on 14.6.1982. Mr. K. D. Sood, Advocate had strenuously argued that the learned first appellate court has erred in law while affirming the findings given by the learned trial court on issues No.1 and 2, however, he has supported the judgments of both the courts below whereby other issues were decided in favour of the plaintiffs. I have heard the learned counsel for the parties and have also perused the pleadings carefully. Since all the questions of law are inter-connected, therefore, the same can be conveniently discussed together to avoid repetition of discussion of the evidence. 5 Firstly, the Court will consider whether the will Ex.DW-2/A executed on 26.3.1981 is in accordance with law or not. Ex.DW-2/A is a registered will executed by Sh. Surat Ram in favour of Lesaru Ram, defendant. Sh. Surat Ram was admitted in District Hospital, Kullu on 18.3.1981 and was discharged from hospital on 27.4.1981 as per the extract of hospital register Ex.PW-2/A. Sh. Surat Ram was suffering from serious skin disease. Sh. Surat Ram died on 2.5.1981. It is thus evident that the will was executed by Sh. Surat Ram in favour of Lesaru Ram when he was hospitalized. Lesaru Ram, defendant was residing separately from his father since he had purchased a house of one Sh. Kali Dass seven years prior to the year 1981. Ex.PE to Ex.PK are the copies of the voter lists. Ex.PD and Ex.DW-3/A prove that defendant No.2 Kundli widow of late Sh. Surat Ram and the plaintiffs are recorded to be residing together whereas defendant Lesaru Ram was residing with his wife Fagni separately from his parents. The defendant has not produced the attesting witnesses, namely, Nathu Ram and Thakar Dass only on the flimsy ground that they were unwell. If they were unwell, they could be examined on commission. DW-5 Sh. Rajinder Thakur has admitted that he did not know Surat Ram personally and his father Sh. Tej Singh, who was an Advocate and counsel for Surat Ram had instructed him to become witness to the will. DW-1 Lesaru Ram has consulted Sh. Tej Singh for the execution of the will. DW-5 has stated that he did not know who and how Surat Ram was brought to the Deed Writer. DW-1 has deposed that Surat Ram was brought from the hospital to Deed Writer at the back of Nathu Ram. 6 However, Nathu Ram was not examined. It is thus evident that the will dated 26.3.1981 was executed while Surat Ram was in hospital. He was brought from the hospital by Sh. Nathu Ram at his back. The two attesting witnesses were not at all examined by the defendant. Defendant Lesaru Ram participated actively at the time of execution of the will. He was living separately from his father, as noticed above. The findings recorded by the learned trial court and affirmed by the learned Additional District Judge need not be interfered by this Court since the defendant has failed to prove the execution of will Ex.DW-2/A dated 26.3.1981 in accordance with law. The defendant Lesaru Ram has failed to remove the suspicious circumstance existing at the time of execution of will dated 26.3.1981. The fact that the will was registered will not help the cause of the defendant for the reasons as noticed above. Cross Objection No: 78/1997 Now, the Court has to consider the cross-objection filed by the plaintiffs against the judgment and decree dated 31.5.1996. Mr. K.D. Sood, Advocate had strenuously argued that the findings on issues No.1 and 2 recorded by both the courts below are contrary to law since according to him, the learned courts below have failed to take into consideration section 14 of the Hindu Succession Act, 1956. Mr. Sood had further argued that Sh. Surat Ram, the father- in-law of the plaintiff and grand-father of plaintiffs No.2 to 4 had given half of the suit land, abadi and house property as mentioned in para 2 of the plaint for their maintenance. 7 In order to appreciate the submission made by Mr. K.D. Sood, it is necessary to take note of the pleadings of the parties. The case set up by the plaintiffs in the suit was that the defendant pressurized plaintiff No.1 to marry him, which led to family disturbance and since the plaintiff refused either to marry defendant or to live jointly with him, it was in these circumstances that Surat Ram made provisions for separate residence and maintenance of the plaintiff and to give half share in the suit land and whole of the house property to her. The defendant has denied these averments. In nutshell the case of the plaintiff was that half of the land was given to her and her children by way of maintenance. PW-1 has deposed that Surat Ram has given half of the land to her for maintenance. She has not deposed that this arrangement was reduced into writing or any partition deed was prepared. There is nothing on record except the bald assertion of PW-1 that her father-in-law had given half of the land to her for maintenance. DW-1 has stated that his father has given a portion of the land to Jhabe Ram for cultivation and a separate accommodation in the house. Their Lordships of the Hon’ble Supreme Court in Gulabrao Balwant Rao Shinde and others versus Chhabubai Balwant Rao Shinde and others, (2003) 1 SCC 212 have held that the findings that properties were given in lieu of maintenance to second wife of deceased and thus had enlarged into full ownership right cannot be recorded in the absence of pleadings and evidence to that effect. Their Lordships of the Hon’ble Supreme Court have held as under: “Counsel for the appellants vehemently argued that in the absence of any pleadings and evidence to the effect 8 that the Balwantrao Shinde had given the property to Chhabubai in lieu of maintenance, the High Court has erred in recording a finding that the property in possession of Chhabubai was in lieu of maintenance which could be enlarged into full ownership rights on her. Counsel for the respondents virtually conceded that Chhabubai did not either raise the plea nor lead any evidence to prove that the property were given to her by way of maintenance by Balwantrao Shinde. It is also not disputed that properties in the hands of Balwantrao Shinde were ancestral in nature. We agree with the plea raised by the counsel for the appellants that in the absence of any pleadings to the effect that Balwantrao Shinde had given the properties to Chhabubai by way of maintenance and in the absence of any evidence to that effect, the finding that the properties were given in lieu of maintenance to Chhabubai which right could be enlarged into full ownership right could no be recorded. The High Court clearly fell in error in recording a finding to the effect that Chhabubai had become absolute owner of the properties left by Balwantrao Shinde. Another factor which persuades us to take this view is that the properties were ancestral hands of Balwantrao Shinde in which plaintiff No. 1 had a right by birth. The entire property therefore could not have been given a Chhabubai by way of maintenance.” Similarly, their Lordships of the Hon’ble Supreme Court in Ram Vishal versus Jagan Nath and another, (2004) 9 SCC 302 have held that in the absence of anything to show that the widow had got possession of share in the joint family property in lieu of maintenance or in arrears of maintenance or that there was a partition and that in such partition, she had been given the property, the widow had no right at all which could fructify into full ownership under section 14. Their Lordships have held as under: 9 “In our view, the authority in Raghubar Singh case(1998) 6 SCC 314" can be of no assistance to the respondent. As has been held by this Court, a pre-existing right is a sine qua non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be possessed of the property but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a partition or "in lieu of maintenance or arrears of maintenance" or by gift or by her own skill or exertion, or by purchase or by prescription. In the present matter, it is nobody's case that Manki had got possession of the l/4th share in lieu of maintenance or in arrears of maintenance. It was also not their case that there was a partition of the property and that in such partition, she had been given the property. A mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14.” In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, it is evident that the plaintiffs were required to prove the actual acquisition of the property by them from Sh. Surat Ram. In the present case the plaintiffs have failed to prove how they had acquired the property. The findings on issues No.1 and 2 recorded by both the learned courts below are affirmed. There is no substantial question of law involved in the Regular Second Appeal No. 338/1996 and the same is dismissed. The Cross-Objection No. 78/1997 is also dismissed in view of the discussion made hereinabove being devoid of merit. There shall be no order as to costs. ( Rajiv Sharma), J. August 1, 2008 *Awasthi*