Case: Sant Narain Mathur &amp; Ors Vs. Rama Krishna Mission &amp; Ors

the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the High Court. In case the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford. Said the learned Chief Justice:"Time hath its revolutions; there must be a period and an end to all temporal things - an end of names, and dignities and whatsoever is terrence, and why not of De Vere? For where is Bohun? Where is Mowbray? Where is Mortimer? Why which is more and most of all, where is Plantagenet? They are all entombed in the urns and sepulchers of mortality. What was said about the inevitable end of all mortal beings, however, eminent they may be, is equally true of the affairs of mortal beings, their disputes and conflicts, their ventures in the filed of love and sport, their achievements and failures for essentially they all have stamp of mortality on them."

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]13. The present suit for possession of the property in disputed was filed by Capt. Mitra on February 1, 1958 on the allegation that Shamsher Singh was the owner of that property and had executed a will whereunder the plaintiff was appointed the executor of Shamsher Singhs estate. As under the will a right of maintenance and residence was given to Dayali Devi, the plaintiff sought possession of the property in dispute subject to the right and interest of Dayali Devi under the will of Shamsher Singh. The trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. When the matter came up in appeal before the High Court, it found that the appeal must fail because the decree awarded against Deva Devi had become final and because Dayali Devi was bound by the previous decision dated November 21, 1961 of the High Court. The High Court under the circumstances did not consider it necessary to construe the will of Chandan Singh and to decide whether finding recorded by the trial court that Shamsher Singh had become the absolute owner of the entire estate of Chandan Singh was correct or not. No plea was taken on behalf of the defendants either in the trial court or in the High Court that the plaintiff was entitled only to a decree for joint possession because of his being a co-sharer and not to a decree for exclusive possession of the property in dispute. As no such plea was taken in the trial court and the High Court, we are of the opinion that the appellants should not be allowed to take this plea for the first time in this Court. In arriving at this conclusion, we have taken into account the various facts and circumstances of the case. One such circumstance is that the above plea is now being set up by persons who admittedly had no relationship with Chandan Singh, Shamsher Singh or his widow Dayali Devi. The appellants, as already mentioned, base their claim upon a will which, according to them, was executed by Dayali Devi two days before her death.14. A very important circumstance, which has weighed with us, is that the suit giving rise to this appeal was instituted more than 16 years ago on February 1, 1958. During the entire period of more than 14 years that the case remained pending in the trial court and the High Court, the plea now sought to be raised was never taken. The suit instituted in 1958 was the offshoot of a litigation between the parties which started on December 1946 when an application was filed by Capt. Mitra for the grant of a probate of the will of Shamsher Singh. Although the probate proceedings ended as a result of the dismissal of the appeal of Dayali Devi against the order granting probate, the litigation between the parties continued and showed no sign of abatement because Dayali Devi filed in 1952 a suit for declaration in respect of the property left by Shamsher Singh. It would thus appear that we have reached the culminating point of a litigation which arose our of a will executed in the last century and which has been pending in one court or the other since before the dawn of independence. The question is whether we should call a halt and put an end to this litigation or whether we should allow the litigation to take a further meandering course which must necessarily be the case if we allow the new plea to be raised in this Court. It has already been mentioned that the trial court held that Shamsher Singh had acquired full ownership rights in the assets left by Chandan Singh. The High Court did not go into this aspect of the matter as the need for doing so did not arise in the light of the contentions advanced on behalf of the appellants before the Highcase the appellants are now allowed to take the new plea, the case would have to be remanded to the High Court for dealing with and recording a finding on the above aspect of the matter. The High Court shall have also in what event to go into the question as to whether Dayali Devi could deny the title of Shamsher Singh to the entire property in dispute in view of the fact that the herself had set up a will of Shamsher Singh on the assumption that he was the full owner of the property in dispute. The High Court did not full deal with this aspect of the matter beyond observing that Dayali Devi was approbating and reprobating. Deva Devi and Dayali Dev who claimed rights and interest in the property in dispute, are now no more. So is Capt. Mitra who was the party arrayed against the two Iadies in the litigation. It is time, in our opinion, that we draw the final curtain on this long drawn litigation and not allow its members to smoulder for a further length of time, more so when the principal contestants have all departed bowing as it were to the inexorable law of nature. One is tempted in this context to refer to the observations of Chief Justice Crewe in a case concerning peerage claim made after the death without issue of the Earl of Oxford.