Chando (Deceased) Through His LRs Smt. Sandesh Devi & Ors vs Baldev Singh & Ors

Tarlok Singh Chauhan, J

The appellants are the defendants, who aggrieved by the judgment and decree dated 19.09.2006 passed by the learned Addition District Judge, Fast

Track Court, Kangra at Dharamshala in Civil Appeal No. 99-J/05/04, have filed the instant regular second appeal.

The parties hereinafter shall be referred to as the ‘plaintiffs’ and ‘defendants’.

The brief facts of the case are that the plaintiffs filed a suit for declaration and injunction against the defendants/ appellants wherein it was averred

that they were owners in possession of 1/3rd share of the land described in the plaint stating that the land was earlier recorded to be owned and

possessed by one Shero son of Shyama who was grand maternal father of the plaintiffs. It had been averred that Shero had one daughter Thakri Devi

and the plaintiffs are sons and daughters of Smt. Thakri Devi who has already died, they being Rajput by caste and governed by the agricultural

custom of Kangra District had become owners and the suit land could not have been alienated by Shero by way of Will, sale, gift or any other manner

except for legal necessity. It had been averred that Shero was the last holder of the suit property and the defendants without the consent and

knowledge of Shero got a Will dated 30.03.1972 executed in their favour and mutation in that respect was also got attested after the death of Shero. It

had been alleged that the Will was the result of fraud, coercion and was not binding upon the plaintiffs. It had also been averred that Shero was big

landlord having sufficient means of livelihood. The defendants are trying to interfere in the ownership and possession of the plaintiffs and are

proclaiming themselves to be owners. Thereby the suit for declaration was filed seeking declaration that they have become owners. It had also been

averred that the suit was earlier filed titled as Girdhari versus Chand in the Court of Ld. Sub Judge, Jawali but the same was withdrawn with

permission to file afresh on the same cause of action. The defendants despite asking them time and again to admit the claim of plaintiffs had not

bothered to pay heed to the requests of plaintiffs, hence, the suit.

The respondents/defendants had contested the suit on the preliminary objections of maintainability, cause of action, estoppel, locus standi and

limitation. It had been averred that the defendants had become owner by virtue of registered Will dated 30.03.1972 which was duly executed by Shero

in sound state of disposing mind. It had been averred that deceased Shero used to reside with the defendants who are his nephews. Even after the

death of Shero all the customary rituals were performed by the defendants. The mother of plaintiffs expired prior to Shero and at that time neither the

plaintiffs nor the parents of the plaintiffs looked after and served the deceased Shero in any manner. The defendants have also denied that the parties

are governed by any agricultural custom of Kangra district. They have also averred that deceased was never duped by them since he was residing

with the defendants after the death of his wife who had died much earlier and he was being looked after by the defendants. He executed a valid Will

out of his free volition. The daughter of Shero namely Thakri Devi never visited him nor anyone visited the house of Shero after his death in spite of

information provided to them. Even the father of plaintiffs did not turn up. Thereby it had been alleged that the averments made by the plaintiffs are

absolutely wrong and thereby dismissal of the suit had been prayed for.

On pleadings of the parties the following issues were framed.

“1. Whether the plaintiffs are owners in possession of the suit land and the alleged Will dated 30.03.1972 is against law and facts and against the

Agricultural custom of Kangra District, as alleged?OPP

Whether the suit land is ancestral qua the plaintiffs and Shero deceased and the parties are Rajput by caste and are governed by agricultural custom

of Kangra district regarding the sale, Will and gift of the ancestral land, as alleged?OPP.

Whether the suit of the plaintiff is not maintainable in the present form, as alleged?OPD.

Whether the suit of the plaintiffs is without cause of action, as alleged?OPD

Whether the suit of the plaintiffs is time barred, as alleged?OPD.

Whether the defendants are owners in possession of the suit land by virtue of registered Will dated 30.03.1972, as alleged.

Relief.â€​

The learned Trial Court after recording evidence and evaluating the same, dismissed the same, constraining the appellants/defendants to file an

appeal before the learned first Appellate Court, who vide its judgment and decree dated 19.09.2006 partly allowed the appeal and held the plaintiffs to

have become the owner in possession of land to the extent of share of Shero comprised in Khata No. 99, Khatauni No. 241, Khasra Nos. 65/6, 14, 15,

measuring 24 Kanals, which comes to 8 kanals, and, 8 kanals i.e. 1/3rd share of the land comprised in Khata No. 9, Khatauni No. 241, Khasra Nos.

65/6, 14 and 15, measuring 24 kanal situated in Tika Bhadpur, Tehsil Fatehpur, District Kangra, H.P. As far as the other land is concerned, the

defendants are held to have become owner in possession vide Will Ext.D1.

Aggrieved by the judgment and decree passed by the learned first Appellate Court, the defendants have filed the instant appeal.

It would be noticed that as against this very decree, even the plaintiffs have filed an appeal which was registered as RSA No. 565 of 2006,

however, the same was dismissed for want of prosecution on 09.07.2013, as the plaintiffs have failed to bring on record the legal representatives of

deceased respondent No. 2 therein. The order dated 09.07.2013 reads as under:-

“Last opportunity of eight weeks is granted to take appropriate steps to bring on record the legal representatives of deceased respondent No. 2

failing which the appeal shall stand dismissed for non prosecution without reference to Court.â€​

On 09.11.2006, the appeal came to be formally admitted on the following substantial questions of law, which reads as under:-

Whether the impugned judgment and decree is the result of complete misreading, misinterpretation and mis-appreciation of Exhibit D1 dated

30.03.1972.

Whether the impugned judgment and decree is the result of non-consideration of the provisions of Section 45 of the H.P. Tenancy and Land

Reforms Act.

Whether the learned lower appellate Court is right in reversing the findings on issue No. 5 without giving any cogent reasons and ignoring the

provisions of Limitation Act.

Whether the learned lower appellate Court being last court of fact is right in not discussing the entire oral as well as documentary evidence in view

of the law laid down by the Hon’ble Apex Court reported in 2000 (5) SCC 652.

Whether the impugned judgment and decree is the result of non-consideration of documents Exhibits D3 to D17.

Whether the learned lower appellate Court was right in not discussing the statements of DW1 to DW6.

Whether the learned lower appellate Court is right in misconstruing the Will Ext. D1 and excluding the property situated in Tika Bhadpur, Tehsil

Fatehpur whereas, the appellants were entitled to succeed with respect to all the properties left behind by the testator which he was owing and

possessing on his death in the year 1986.

Questions No. 1 and 7

Since both these questions are intrinsically interlinked and interconnected and moreover the fate of this appeal otherwise rests mainly upon these

two questions, therefore, they are taken up together for consideration and are being disposed of by way of common reason.

At the outset, it needs to be observed that the validity of the Will in favour of the defendants is no longer in question as the same has attained

finality after the dismissal of RSA No. 565 of 2006. Therefore, the only question which remains to be considered is whether the whole of the suit

property to the extent of the share of the deceased has been willed or only part thereof was willed away by the deceased.

For answering this question, one would essentially have to fall back on the Will Ext. D1. On perusal thereof, it would be noticed that it has been

clearly stated therein that the defendants Chando and Bachittar shall be the owners of the whole property on which he (Shero) was the owner in

possession.

The learned first Appellate Court observed that since the land at Bhadpur to the extent which was under the tenancy of Shero is not effected in

any manner by the Will as he was not the owner thereof appears to be contrary to the record, reason being that admittedly late Shero had died in the

year 1986 by which time he had already become the owner of the property at Bhadpur after coming into force of the H.P. Tenancy and Land

Reforms Act, 1972 and mutation of ownership had already been attested in his favour in the year 1976.

Apart from that, it is more than settled that in construing a document whether in English or in vernacular the fundamental rule is to ascertain the

intention from the words used: the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning

of the words which have actually been employed (Ram Gopal vs. Nand Lal, AIR 1951 SC 139 at page 141).

In construing the language of the Will the court is entitled to put itself into the testator’s armchair (Venkata Narasimha vs. Parthasarathy)

(1913) 41 Indian Appeal 51 at p. 73 (Privy council) and is bound to bearing in mind also other matters than merely the words used. It must consider

the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense…..

But all this is solely as an aid to arriving at a right construction of the Will, and to ascertain the meaning of its language when used by that

particular testator in that document.

(Venkata Narasimha’s case (supra) and Gnanambal Ammal vs. T. Raju Ayyar, AIR 1951 SC 103 at pp. 105-6)).

The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the Will as a whole with all

its provisions and ignoring none of them as redundant or contradictory ( Raj Bajrang Bahadur Singh vs. Bakhtraj Kuer) (AIR 1953 SC 7 at p. 9).

In Lachman Singh (dead) By LRs. vs. Raja Ram Singh (1993) 3 SCC 517, it was observed that while construing a Will the principles enunciated in

Section 90 of the Indian Succession Act is relevant. Where a property is bequeathed in generic and may increase diminish or otherwise change during

the testator’s life so that the description may from time to time apply to different amounts of property of like nature or to different subjects, then

the effect of the section is that the property answering the description at the death of the testator passes under the Will unless contrary intention is

shown. It would be opposite to refer to the relevant observations as contained in paragraphs 4 to 7 which reads thus:-

“4.Decisions of this Court in Rana Sheo Ambar Singh v. Allahabad Bank Ltd, Allahabad, 1962 (2) SCR 441; Shri Ram Prakash v. Mohammad Ali

Khan (dead) thr. L.Rs., 1973 (2) SCC 163; Sri Vidya Sagar v. Smt. Sudesh Kumari & Ors.; 1976 (1) SCC 115, and Jamshed Jahan Begam & Ors. v.

Lakhan Lal & Ors., 1970 (2) SCR 566, were brought to our notice explaining the nature of rights arising out of Section 18 of the Act. It was again

pointed out that what is disposed of by the Will is not the Zamindari rights but the entire property of Arjun Singh which would include bhumidhari right.

It has also been brought to our notice that Section 90 of the Indian Succession Act should also be adopted in considering the Act. The contention on

behalf of the appellants is that though the Will had been executed it is only in respect of Zamindari haq which stood extinguished on the

commencement of the Act and, therefore, the Will could not affect the rights arising out under the Act and, therefore, the view taken by the Additional

Commissioner and the Board of Revenue stands to reason in preference to that of the High Court.

In construing a Will the principle enunciated in Section 90 of the Indian Succession Act is relevant. Where a property is bequeathed in generic and

may increase, diminish or otherwise change during the testators life so that the description may from time to time apply to different amounts of

property of like nature or to different subjects, then the effect of the section is that the property answering the description at the death of the testator

passes under the Will unless contrary intention is shown.

The will became operative only on the death of Arjun Singh in 1958. Therefore, on that date, whether the Will could have been executed by Arjun

Singh and what right could flow therefrom has to be seen. It is not in dispute that under Section 18 of the Act Arjun Singh became bhumidhar of the

lands in question. A bhumidhar is enabled under Section 169 of the Act to make a Will and bequeath his holding or any part thereof and general order

of succession provided under Section 171 is subject to Section 169 of the Act. The Will executed by Arjun Singh, as far as the portion relevant for our

purpose is concerned, reads as follows :-

After my death however my all properties whether movable or immovable i.e. Haquait Zamindari and a residential house Kaccha and a Gonda Kacha

will devolve on my wife Mrs. Raj Kumari d/o Gajaidhar Singh, Thakur, resident of Baderi mentioned above who would enjoy its ownership under the

provisions of the will, and after her death my above daughter Mrs. Bitto resident of above Badera will enjoy ownership rights over the properties of

the will throughout her life, after the death my family heirs will succeed to the properties under the will. [emphasis supplied by us]

The intention of the testator is very clear that he wanted to bequeath to his wife all properties whether movable or immovable which included at the

time of execution of the Will Haquait Zamindari and a residential house Kaccha and a Gonda Kacha for her life time and thereafter to his daughter for

her life time and subsequently to the heirs who will succeed to the properties under the Will. Therefore, a reading of the Will makes it clear that when

the testator made the Will he did dispose of all his properties whatever be the nature of the same and thus bhumidhari rights in respect of the lands in

question were also covered by the same applying the principle underlying Section 90 of the Indian Succession Act to which we have adverted to, and

there is no contrary intention expressed.

In Maj Gen. Rajinder Singh Chowdhary vs. S. Manjit Singh Chowdhary and others, AIR 2001 Delhi p.15), the Full Bench of the Hon’ble Delhi

High Court observed as under:-

What is the intention of the testator has to be found out on a reading of the will and there cannot be any hard and fast rule of uniform application to

find out as to whether the grant was absolute or it was subject to any condition or stipulation. The true intention of the testator has to be gathered not

only by attaching importance to isolated expressions but by reading the will as a whole with all the provisions and ignoring none of them as redundant

or contradictory (See. Raj Bajrang Vs. Thakurani, AIR 1953 SC 1953). As observed in Navneet Lal's case (supra), although there is no binding rule

that the court should avoid intestacy at any cost, yet the court would be justified in preferring that construction of the will which avoids intestacy.

Where the words are ambiguous attempt should be made to avoid that construction which leads to intestacy.

The rule of construction in the case of a will is that the court has to find out the meaning of the testator from the language used, taking the whole of

the document together. In maters of construction of wills, deci- sions in other cases, do not and cannot afford sufficient guidance. It is not proper to

interpret a will by searching for other cases-English or Indian. Intention is to be gathered from the words of the document bearing in mind its

circumstances. In Narender Nath Sircar Vs. Kamal Basini Dasi, (1896) 23Cal.563: 23 I.A. 16: 6 MLJ 71. Lord Machaghten said: ""To construe one

Will by reference to expressions of more or less doubtful import to be found in other Wills is for the most part an unprofitable exercise. Happily that

method of interpretation has gone out of fashion in this country. To extend it to India would hardly be desirable. To search and sift the heaps of cases

on Wills which cumber our English Law Reports, in order to under- stand and interpret wills of people speaking a different tongue, trained in different

habits of thought and brought up under different conditions of life, seems almost absurd."" It is seldom profitable to compare the words of one Will with

those of another or to attempt to find out to which of the Wills, upon which decisions have been given in reported cases, the Will before the Court

approximates closely. Cases are helpful only in so far as the purport to lay down certain general principles of construction and at the present these

principles seem to be fairly well settled. The cardinal maxim to be observed by Courts in construing a will is to endeavour to ascertain the intention of

the testator. This intention has to be gathered primarily from the language of the document which is to be read as whole without indulging in any

conjecture or speculation as to what the testator would have done if he had been better informed or better advised. (See. Gnanmbal's case (supra).

Rules of construction by analogy is a dangerous one to follow in construing will differently worded and executed in differ-ent surroundings. In Bipra

das Vs. Sadhan Chandra , Miller, J, said: It is always dangerous to construe the words of one will by the construction of more or less similar words in

a different will which was adopted by a Court in another case. In constituting the will the Court must consider the surrounding circumstances, the

testator's position, his family relationship, the probability that he would use his words in a particular sense and many other things summed up in the

picturesque phrase. The Court should put itself in the testator's armchair Veerattalingam Vs. Rameth, , K. Balra Rao Vs. Datta Rao AIR 1992 SC

It is seldom profitable to compare the words of one will with those of another. The cardinal maxim to be observed by Courts in construing a will

is to endeavour to ascertain the intention of the testator, which has to be gathered primarily for the language of the document read as a whole.

Bearing in mind the aforesaid exposition of law, I once again revert back to the Will Ext. D1, the English translation whereof reads as under:-

“Will Deed

I, Sher Singh, aged 80 years, s/o Shyama, Caste Rajpur, am a resident of Takwal Dakhli, Fatehpur, Tehsil Nurpur, District Kangra. I have sufficient

property (movable & immovable) located at Takwal and Muhayi, Tehsil Nurpur, District Kangra, Mauja Fatehpur. My only daughter Thakri Devi is

married and is residing in her matrimonial house and she is not in position to look after me. Moreover, I have given sufficient and huge property to her.

I have two nephews who are residing with me and looking after me. Rest of my nephews are residing separately and not taking care of me. Bachittar

and Chando, my nephews are loyal to me and I am very affectionate to them. I have made this will out of my free will and sound health and disposing

state of mind thereof I bequeath all my property, in whatever from existing, after my death to Bachittar and Chando, sons of Mahloo, s/o Shyama,

Caste Rajpur, R/o Takwal, Tehsil Nurpur, District kangra in equal proportionate. This will has been prepared for the purpose of future use.

Dated 30/3/72 Place: Nurpur Witness

Witness Sd- Sd/- (illegible)

Sd/ (Illegible) Sher Singh- illegibleAmi Chand s/o Nathu Illegible Tehsil Nurpurâ€​

Shri illegible Ram Nambardar illegible Tehsil Nurpur

Now, in case the contents of the Will are perused, nowhere has the testator confined the same to the land other than the one situated in Tikka

Bhadpur, Tehsil Fatehpur. Therefore, the findings of the learned first Appellate Court to the effect that the land at Bhadpur to the extent which was

under the tenancy of the Shero is not effected in any manner by the Will is clearly erroneous, contrary to the record and based on misreading of the

Will.

Resultantly, the findings of the learned first Appellate Court are set aside and questions No. 1 and 7 are answered accordingly.

Questions No. 2 to 6

Since, the findings of the learned first Appellate Court have already been set aside while answering questions No. 1 and 7, the remaining questions

are academic and, therefore, need not be answered.

In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the judgment and decree passed by the

learned first appellate Court is set aside, leaving the parties to bear their own costs. Pending applications, if any, also stands disposed of.