Jagta vs Ruldu and Another

A.S. Nehra, J.—This appeal has been filed by the Defendant Appellant against the judgment and decree dated 1.9.1988 passed by Additional District Judge, Kurukshetra.

The land, in dispute, belonged to Basanta who died on 6.8.1984. Both the Plaintiffs-respondents and the Defendant Appellant are the sons of Basanta. The Plaintiffs filed a suit in the trial Court on 14.9.1984 and submitted that, as Basanta died intestate, the parties, being his legal heirs, obtained one third share each. The Plaintiffs pleaded for a decree for declaration that the Plaintiffs are owners in possession to the extent of two thirds share in the suit land.

In order to resist the suit, the Defendant filed written statement. He did not dispute the relationship between the parties, but added that Basanta executed Will Exhibit D-2/A dated 20.7.1961 and, as a result thereof, the Defendant inherited 169 Kanals 8 Marias out of the suit land and the Plaintiffs are owners of the remaining 40 Kanals of land.

On the pleadings of the parties, the following issues were framed:

(1) Whether deceased Basanta executed a valid Will in his sound and disposing state of mind?

(2) If issue No. 1. is not proved, when whether the parties to the suit in equal shares are joint owners in possession of the suit property of the deceased?

(3) Whether the suit is not maintainable in the present form, as alleged?

(4) Whether the suit is not properly valued for the purposes of Court-fee and jurisdiction?

(5) Whether the Plaintiffs are estopped to file the present suit by way of his own act and conduct?

(6) Relief.

The trial Court took up issues Nos. 1 and 2 together and decided them in favour of the Plaintiffs and against the Defendant. Issues Nos. 3 to 5 were answered against the Defendant and the suit was decreed by the trial Court on 30.1.1987.

The Defendant-Appellant filed an appeal which was dismissed by Additional District Judge, Kurukshetra, on 1.9.1988.

The learned Counsel for the Defendant Appellant has argued that the Appellant has to prove four points in order to succeed in this appeal, i.e., (i) whether the Will did exist; (ii) whether the Will was duly executed ; (iii) whether the Will satisfies the conscience of the Court; and (iv) whether the secondary evidence is admissible. The learned Counsel submitted that the Will did exist because the mutation was sanctioned on the basis of the Will that a copy of the Will was produced; that Dharam Chand, the scribe of the Will, was examined as DW-2 who produced an entry regarding the Will in his register that the mortgage deed Exhibit D-2 dated 6.1.1981 executed by Basanta in favour of the Land Mortgage Bank was proved by DW-3 Attar Singh, Lambardar; that DW-6 Yashpal Chand Jain, Handwriting and Finger Prints Expert, proved the thumb-impressions of Basanta on the mortgage deed Exhibit D-2 and the entry in the register of the scribe; that DW-4 Bihari Lal was examined as an attesting witness of the Will; and that the execution of the Will Exhibit D-2/A was thus proved by the propounder to the satisfaction of the Court.

A Will is a document which alters the natural course of succession. For that reason, the law prescribes a special mode for the proof of its due execution. The propounder of the Will has to prove that the marginal witnesses (at least two in number) saw the testator signing the Will ad themselves signed the same in the presence of the testator.

With the above background, the evidence produced by the Defendant-Appellant in support of the Will has to be examined. The Defendant-Appellant produced DW-2 Dharam Chand, petition-writer, scribe of the Will and DW-4 Bihari Lal one of the three marginal witnesses. The significant factor to be taken note of is that both these witnesses did not specifically say that the marginal witnesses signed the Will in the presence of the testator and that they also saw the testator putting his thumb-impression over the Will and he did so in their presence. The other two marginal witnesses are Notan Dass and Man Singh Lambardar. They have not been produced by the Defendant-Appellant. DW-4, Bihari Lal is neither definite whether Man Singh, Lambardar put his thumb-impression over the Will not could he say so in respect of Notan Dass. DW-4 Bihari Lal is definite only about himself that he attested the Will. The statement of DW-2 Dharam Chand is totally silent about the attestation of the Will by witnesses. The learned Counsel for the Defendant-Appellant argued that the absence of specific mention by the witnesses about the attestation of the Will by them in the presence of the testator and vice-versa, is no proof of the fact the Will was not duly executed in accordance with the provisions of Section 63(c) of the Indian Succession Act. On a careful consideration, I am not impressed by this argument. The Smt. Ladhi Bai Vs. Thakur Shriji and Others, cited byu the learned Counsel for the Defendant-Appellant has no application to the facts of the present case,

There are certain suspicious circumstances which surround the Will. It may also be mentioned here that there is no cogent explanation to dispel those circumstances. Out of the three marginal witnesses only Man Singh, Lambardar belongs to village Chhot from where the parties hail and where the suit land is located. He had not been examined by the Defendant-Appellant and no reason was given for that. An inference would have to be drawn that if Man Singh, Lambardar had been examined, he would not have supported the case of the Defendant-Appellant. The contents of the Will would show that the deceased owned 209 Kanals 8 Marlas of land, out of which he gave 169 Kanals 8 Marias to the Defendant-Appellant alone and the remaining 40 Kanals to the two Plaintiffs-respondents. The deceased gave no explanation whatsoever for this inequal distribution of his land. The deceased did mention the fact that Jagta Defendant-Appellant was from his first wife whereas the two Plaintiffs were from his second wife with whom he performed Karewa. Basanta deceased excluded his wives from the line of succession, but, at any rate, he gave no reason to show undue favour to Defendant-Appellant Jagta and deprive the Plaintiffs-respondents of their right to inherit the suit property in equal shares with Jagta. May be, the parties were born to Basanta from different wives, but all of them were fathered by Basanta. The three sons are equally related to Basanta. Even the Defendant-Appellant neither gave any explanation as to why he got the much bigger chunk of land (more than four times) than that given to the other two sons, nor is there any reason for this discrimination against the Plaintiffs- Respondents. Such a Will certianly cannot satisfy the conscience of the Court and it cannot be taken to be the last and genuine Will of the testator.

The learned Counsel for the Defendant-Appellant argued that mutation Exhibit D-3 was attested on the lines of the Will, the Plaintiffs-respondents were present before the Assistant Collector Grade II on 24.8.1984 and they accepted the Will as correct. There is no force in this argument. Admittedly, Basanta died on 6.8.1984. it was on 8.8.1984, even before the pyre of Basanta had cooled, the Defendant-Appellant Jagta produced a copy of the Will before the Revenue Officer and got the mutation entered. On 1.5.8.1984 it was reported by Kanungo that the mutation was incomplete. However, on 24.8.1984 the mutation was taken up in village Padla (not Chhot) and the presence recorded was that of the parties on the identification of Didar Singh Lambardar. All that can be deduced from the order of mutation is that the parties accepted the factum of succession but not the Will. Didar Singh Lambardar was not examined by the Defendant Appellant to show that he was really present at that time and he had indentified the parties. There is no circumstances to indicate that any notice was issued to the Plaintiff-respondents to put in appearance before the Revenue Officer at village Padla on 24.8.1984. If the Plaintiff-respondents were really willing parties, there is no explanation as to why they lost no time in filing this case in the trial Court on 14.9,1984. For all these reasons, I am unable to accept the contention of the Appellant''s counsel that presumption of correctness the attached to the contents of the mutation.

The learned Counsel for the Plaintiff-respondents argued that the replication is a part of the pleadings and, in this connection, he referred to Harbans Singh v. Shri Nahar Singh 1978 PLJ 137, and Moti Ram v. Baldev Krishan 1979 PLR 69 (Delhi Section). The grouse raised by the learned Counsel for the Defendant-Appellant is that the plea based on facts cannot be introduced in the replication and that the question as to the ancestral character of the property is one of facts and it could not be introduced in the replication. The argument also runs that neither any issue was claimed by the Plaintiffs-respondents on this point not was it framed by the trial Court.

In this connection, it deserves notice that, during the course of trial of the case and after having taken the necessary plea in the replication, the Plaintiffs-respondents moved the trial Court and got prepared the excerpt Exhibit P-4 to prove the ancestral character of the property. This excerpt was summoned by the trial Court for 23.5.1986 and it reached the Court on 22.11.1986. Till then a number of adjournments were granted by the learned Sub Judge for awaiting the excerpt. In these circumstances, it cannot be said that the Defendant-Appellant was taken by surprise. He knew the contents of the replication and the efforts were being made by the Plaintiffs-respondents to adduce on record the necessary evidence to prove the ancestral character of the property. It cannot be said that the Defendant- Appellant was, in any way, prejudices in the matter of meeting the case of the Plaintiffs-repondants. It is further, important to note that the Defendant-Appellant was questioned on this aspect of the case in his cross-examination. He expressed his ignorance as to from where his father Basanta obtained the property. Obviously, the Defendant-Appellant was not prepared to accept the proposition that Basanta got the property from his father by way of succession. In any case, Defendant-Appellant Jagta, appearing as DW-5, admitted that his father had not purchased any land.

The learned Counsel for the Defendant-Appellant argued that expert Exhibit P-4 was not prepared in accordance with the High Court Rules and Orders, and therefore, it is a useless piece of evidence and the suit land is not ancestral. This point was not raised before the learned lower Courts and no objection was raised by the Defendant-Appellant when the excerpt was accepted by the trial Court. Therefore, the learned Counsel for the Defendant-Appellant cannot be allowed to raise this objection for the first time in this second appeal.

As to the plea about the absence of specific issue on the point, it may be mentioned that issue No. 1 framed by the trial Court is sufficiently wide. Under this issue, it was to be proved whether the Will, in question, was a valid one. In view of that, as highlighted above, the parties knew the case of each other very well and they led the evidence as well. In this situation, the absence of specific issue did not vitiate the trial.

The learned Counsel for the Defendant-Appellant argued that the learned trial Court has erred in law in not permitting the Defendant-Appellant to lead secondary evidence of the Will. There is no force in this argument of the learned Counsel. Pleadings are to be drafted in accordance with the provisions of Older 6, Rule 2, Code of Civil Procedure, and all the material facts, in a concise form, are to be incorporated therein. The Defendant- Appellant relies upon the Will dated 20.7.1961 and he was required to produce the original Will because that constituted the primary evidence of the contents of the Wilt. According to the Defendant-Appellant, he lost, the original Will. This was a material fact which was required to be incorporated in the written statement in terms of Order 6, Rule 2, Code of Civil Procedure. It was all the more incumbent upon the Defendant-Appellant to do so because he wanted to adduce the secondary evidence on the will and it was essential for the Defendant-Appellant to make out a case in terms of Section 65(c) of the Indian Evidence Act, The important fact about the loss of the original Will is not the evidence, which the Defendant-Appellant could afford in the written statement. I find no infirmity in the view taken by the lower Courts that the Defendant Appellant could not be allowed to produce the secondary evidence of the Will, as he failed to plead and prove the loss of the original Will.

As to the loss of the document, the only statement is that of Defendant-Appellant Jagta who appeared as DW-5. He stated that his father had handed over the Will to him and it was lost and that he (Defendant-Appellant) carried out a search but could not trace it out. It is important to note that Defendant-Appellant Jagta failed to mention the material circumstances as to when the Will was handed over to him by his father and where he had placed it. In the absence of this explanation, the mere words from the mouth of the Defendant-Appellant that he lost the original Will cannot be accepted so as to make out a case for adducing secondary evidence in terms of Section 65(c) of the Indian Evidence Act.

Excerpt Exhibit P-4 traces the history of the land right from the year 1904-9. Dei Ram was the father of Basanta and he held the property up to the year 1914-15. In the year 1916, the property of Dei Ram was inherited by his sons Basanta and Nihala, vide Mutation No. 79. Nihala died and, through Mutation No. 93 dated 30.6.1920, his share was inherited by his brother Basanta and, therefore, be continued to be the owner of the land. Exhibits P-5 to P-7 are the documents prepared during the consolidation of holdings and these show that the suit land was allotted to Basata after the consolidation of holdings in lieu of the land held by him before the consolidation. On behalf of the Defendant-Appellant, no fault was found with this piece of evidence. It proves the ancestral nature of the suit property and it also goes undisputed that Basanta could not execute a Will in respect of such property.

For the aforesaid reasons, I find no merit in this appeal and the same is dismissed with no order as to costs.