Mohan Lal @APPELLANT@Hash Khem Chand

The appellants, visited with a judgment and decree of partition dated 29.05.1987, have brought the same for judicial scrutiny of this Court, by way of

preferring the present appeal under Section 96 of the Code of Civil Procedure, 1908.

The genesis of the dispute of course lies in the property; being shop No.1 and ‘Nohra’ No.1 of Sangariya, District Sri Ganganagar, half of

which had devolved upon them as claimed by the plaintiffs. The plaintiffs â€" respondent No.1 to 3 herein, asserting devolution of said

‘Nohra’ and shop by virtue of testamentary declaration â€" Will dated 20.06.1964, executed by one Smt. Surti Devi, instituted a suit for partition

and recovery of possession.

Factual Matrix :-

The factual canvass of the case, with a view to deal with the questions and issues raised in the present appeal, is laid hereinfra :-

On 13.10.1972, plaintiffs brought a suit for partition and possession against the defendants for the above referred shop No.1 admeasuring 2366 sq. ft.

and ‘Nohara’ inter alia asserting that the same were jointly purchased by Budhram S/o Dal Sukh Rai and Balwant Rai in an auction held on

02.09.1915, for a sum of Rs.1,000/-. It was averred that ¼th of the price i.e. Rs.250/was deposited by said Budhram. Similar assertion was also

made in relation to ‘Nohra No.1’, situated behind the said shop, ad measured 577 ½ sq. yard, that it was also conjointly purchased on

02.09.1915 for a sum of Rs.100/-. It was averred in the plaint that Budhram and Balwant Rai having jointly purchased the shop and ‘Nohra’

raised the requisite construction. Before Budhram expired, his son Chajju Ram had already passed away, hence the properties of Budhram devolved

to Smt. Surti Devi widow of Chajjuram, as Budhram’s another son Chanan Mal had already left for heavenly abode heirless.

According to the plaintiffs, Budhram’s rights in the property in question, namely shop No.1 and ‘Nohra’ No.1 devolved upon his wife Smt.

Surti Devi, who executed a registered Will in their favour on 20.06.1964, much before she breathed last on 16.02.1970. Plaintiffs contended that after

the death of Smt. Surti Devi, they became owners of Smt. Surti Devi’s share in the suit property. When the plaintiffs came to know that

defendants No.2 and 3 had sold some portion of the shop to Hans Raj for Rs.20,000/- on 01.08.1968, they filed the suit in question inter alia contending

that in the year 1959, said defendants No.2 and 3 had tried to impress upon Smt. Surti Devi to sell her share to them but she had turned down such

request. Plaintiffs stated that the defendants were not only aware about the fact that Smt. Surti Devi was owner of half share in the suit shop and

‘Nohra’, but they had acknowledged such right also, as is evident from the fact that they allowed the Income Tax Department to attach only

their share in the suit shop for the recovery of demand against them. The plaintiffs averred that the defendants No.1 to 4 have unilaterally got

constructed five shops in the contentious ‘Nohra’ and sold two of them to Smt. Vimla Devi and Dr. S.P. Sharma for Rs.65,000/- and

Rs.25,000/- respectively and let out other three shops to defendants No.1 to 4. Apprehending unauthorised sale of their part of the ‘Nohra’ and

shop, plaintiffs purportedly requested the defendants to carry out partition of the suit property, to which, the defendants turned a flat face, compelling

them to file the suit.

Defendants No.1, 2, 3, 6 and 7 filed a joint written statement on 21.12.1972, which was amended on 25.04.1973, assertively denying the factum of suit

properties having been jointly acquired by Budhram alongwith Balwant Rai. The defendants maintained that the same were purchased by Balwant

Rai alone. The said defendants also denied the execution of Will by Smt. Surti Devi and contended that the plaintiffs never remained in possession

of the suit properties. The defendants took an alternative plea that even if it is assumed that any right or interest in the property has vested in them,

it came to an end as a result of perfection of the defendants’ title, as they had enjoyed more than 12 years’ continuous and peaceful

possession over it. The defendants asserted that said Smt. Surti Devi had no right to execute the Will and that she was physically and mentally

incapacited to execute the purported Will and that the plaintiffs were required to obtain probate of the Will, for the purpose of claiming and asserting

their rights, emanating from the Will. Other formal and routine objections, such as deficit Court fee and the suit being time barred were also

incorporated in the written statement.

Apart from the above, the defendants claimed themselves to be the owner of the property by adverse possession and in support of such assertion, they

claimed to have purchased a strip of land, admeasuring 14.6 ft. on 31.08.1915 and 29.11.1963 from Municipal Board, Sangariya, based on their

ownership of the shop and ‘Nohra’.

Defendant No.3 â€" Jugal Kishore filed a separate written statement and stated that he had been adopted by Smt. Surti Devi on 10.04.1934, who had

executed an adoption deed (Ex.1) in ratification of the customary adoption. Defendant No.3 claimed himself to be the owner of the property being

adopted son of Smt. Surti Devi. It is interesting rather surprising to note that the factum of adoption was incorporated by defendant No.3, by way of

amendment in the written statement.

Based on the pleadings of the parties, the Trial Court framed as many as 13 issues and after considering the material available on record, decreed the

suit filed by the plaintiffs vide its judgment and decree dated 29.05.1987.

With a view to have a better appraisal of the facts and evidence and to deal with the extensive and intense arguments advanced by the rival counsel, I

would proceed to decide the appeal at hand, issue by issue.

Issue No.1 : Whether shop and Nohra No.2 situated at Mandi Sangaria “properties in dispute†were purchased by Shri Budh Ram and Shri

Balwant Rai, and they and their legal representatives are the coowners of the shop and Nohra in dispute ?       P

Issue No.1 is the substratum of the entire suit and its burden to prove was placed on the plaintiffs. This issue deals with the factum of purchase of

the contentious property by Budhram and Balwant Rai jointly. For proving this cardinal issue, the plaintiff No.1 â€" Khem Chand appeared in the

witness box and deposed that he and plaintiffs No.2 and 3 are brothers; the shop No.1 was purchased by Budhram jointly with Balwant Rai; 25% of

the cost of the shop had been paid by him and similarly, ‘Nohara’ No.1 was also purchased by them in partnership by paying half of the cost. In

support of such assertion, plaintiffs led in evidence Ex.3 and Ex.6 being certified copies of the general record of the Bikaner State and other

documents such as Ex.4, Ex.5 and Ex.7 to establish that the suit properties were purchased by Budhram jointly with Balwant Rai.Â

As against this, the defendants brought in a number of persons in the witness box; out of whom, the defendant No.1 â€" Hari Chand (DW-1)

appeared to assert that the suit properties were purchased by Balwant Rai alone and he was the person, who had deposited the requisite

consideration. The said witness produced and exhibited documents A-2 and A-3, obtained from the Office of the Collector, Sri Ganganagar, in which

Balwant Rai was shown as owner of the ‘Nohra’ and shop. He contended that possession of the shop and ‘Nohra’ is continuous and

unchallenged, though without producing any document, title or receipt, evincing Balwant Rai’s ownership over it. DW-2 Bhagwan Das, having

purchased the shop No.1 and 2 from Jugal Kishore, appeared in the witness box and stated that he had purchased the shop constructed in the

‘Nohara’ from Jugal Kishore. DW-3 Hansraj, being tenant in the shop, came in the witness box and deposed that he has been paying rent to

Jugal Kishore for past 15 years. DW-4 â€" Bal Mukand, another tenant appeared in the witness box in support of defendants’ cause and

averred that he has been paying rent to Jugal Kishore.

The trial court considering the documentary and oral evidence on record, observed that both the parties have failed to bring on record any

documentary evidence regarding ownership of the contentious properties. Such being the situation, trial court relied upon the document Ex.-3 produced

by the plaintiffs and Ex.A/13 produced and relied upon by the defendants and came to a conclusion that the shop and ‘Nohra’ in question was

jointly purchased by Balwant Rai and Budhram. Such finding of the trial Court was essentially based on an admitted document of the defendants,

which showed that Rs.250/- for the shop and Rs.50/for the ‘Nohra’ had been deposited by Budhram. Essentially on the basis of this

evidence, the trial court gave a finding that the shop and ‘Nohra’ in question was jointly purchased by Budhram and Balwant Rai. Contentions

of appellants :

The first argument of Mr. Aggarwal in relation to issue No.1 has been that the plaintiffs in para No.2 of the plaint asserted that the shop in question

was auctioned on 02.09.1915; whereas the documents on record, particularly the entries on Ex.-A/13, show that the amount of Rs.250/- had been

deposited on 10.05.1909, as such the assertion of the plaintiffs is factually incorrect that the auction took place on 02.09.1915. He submitted that the

auction could never take place, after the date of depositing 1/4th amount. According to him as the basic assertion of the plaintiffs is incorrect, the suit

filed by the plaintiffs must fail. While making his submissions on this point, he had also invited attention of this Court towards Ex.-A/25 â€" the

document of 1913, which showed that the price of the shop and ‘Nohara’ in question had been reduced from Rs.1,000/- and Rs.800/-

respectively to Rs.300/and Rs.250/- respectively w.e.f. 01.07.1913 vide order of the Revenue Commissioner dated 25.03.1913.

In light of this, Mr. Aggarwal submitted that the plaintiffs’ assertion regarding date of auction/purchase of the suit property is incorrect. He read

the statement of PW-1 â€" Khem Chand and pointed out that the plaintiffs were not in a position to state the date of auction, when a specific question

was posed to them. He further contended that the plaintiffs’ assertion had been that the shop in question was purchased for a sum of Rs.1000/-

and as against which, the plaintiffs had stated that a sum of Rs.250/- was deposited/paid by Budhram; without stating as to how, by whom and when

the remaining amount of Rs.750/- came to be deposited.Â

Assailing the finding of issue No.1, learned counsel for the appellants secondly contended that the trial court has completely mis-read the document

Ex.-A/13 produced by the defendants. Inviting attention of this Court towards the said documents drawn on 02.01.1914, learned counsel for the

appellants pointed out that the name of the person, depositing the requisite amount of Rs.250/- on 10.05.1909 has been mentioned as Budhram S/o Net

Ram. He submitted that the name of father of the purchaser has been shown as ‘Net Ram’, whereas Budhram’s father was Dalsukh

Rai and as such said document cannot be taken as a conclusive proof of the ownership of the property by Budhram.Â

Mr. Aggarwal, thereafter taken this Court through Ex.-A/14 and Ex.-A/15 and pointed out that the proceedings drawn by Revenue Commissioner

clearly show that shop No.1 was owned by “Thandi Ram Balwant Raiâ€​. Navigating the Court through Ex.-A/2, A/6 and A/8, he contended that

in all Government record, the owner of the shop and ‘Nohra’ has been shown as Thandi Ram Balwant Rai.

In the backdrop of these facts, learned counsel for the appellants argued that the suit as instituted by the plaintiffs was lacking relevant and requisite

particulars. He added that as evident from the document Ex.A/25, the cost of the shop and ‘Nohra’ had been substantially reduced to

Rs.300/- and Rs.250/vide order dated 25.3.1913, but the plaintiffs have not mentioned this fact and stuck to their earlier stand that the shop in question

was purchased for a sum of Rs.1000/-; out of which Rs.250/- was paid by Budhram, without disclosing that who had paid the balance money.

Mr. Aggarwal candidly admitting that there is/was no direct evidence regarding ownership or title of the properties and that only peripheral evidence

had been produced by both the parties, argued that such being the situation, it was incumbent upon the trial Court to have recorded a finding that no

other view/conclusion was possible, except that the suit properties were jointly purchased; more particularly as the appellants â€" defendants were in

continuous possession of the property.

In support of the arguments in relation to this issue, Mr. Aggarwal cited the following judgments :-

(i)Â Â Â Â Â Â Â Â (2011) 11 SCC 786 (Kalyan Singh Chouhan Vs. C.P. Joshi)

(ii)Â Â Â Â Â Â Â AIR 2008 SCW 7332 (Para-22)Â (Babloo Pasi Vs. Stateof Jharkhand & Anr.)

(iii)Â Â Â Â Â Â (2003) 5 SCC p.1 (M.T.W. Tenzing Namgyal & Ors. Vs.Motilal Lakhotia & Ors.)

It has been argued that the documents filed by the plaintiffs are general documents and neither the plaintiffs nor the trial Court has given a finding as

to which law required preparation of such documents or maintaining the record. In substance, the argument of Mr. Aggarwal had been that these

documents may be public record, but until and unless the purpose or requirement of maintaining such record is established, they cannot be treated as

public documents and hence certified copies thereof cannot be led in evidence.

The third argument of learned counsel has been that the Court below has given much credence to Ex.5 and Ex.6, certified copies of the documents

obtained from the office of the Rajasthan State Archives, Bikaner wherein an entry regarding name of the owner of Shop No.1 has been shown as

Budhram and Balwant Rai, resident of Abohar. Mr. Aggarwal contended that until and unless the purpose of such entry and its connection with the

ownership is established or proved, the same cannot be treated as a proof of ownership, more particularly when the entry has not been proved to have

been made by the Public Officer in discharge of his statutory duties. He argued that such entry cannot be held to be a relevant entry as provided in

Section 35 of the Indian Evidence Act, 1872.

Contentions of respondents :

To begin with, Mr. Suresh Shrimali, learned counsel for the respondents contended that the appellants’ arguments that there is a variance between

the pleadings and the evidence, is factually incorrect and legally unsustainable. Responding to the purported variance pointed out by Mr. Aggarwal,

learned counsel for the respondents contended that it is true that in para No.1 and 2 of the plaint, the plaintiffs had mentioned the date of purchase to

be 15.2.1909, whereas during the course of evidence, it has transpired that the property in question came to be purchased in 1915. He argued that

such variance is not fatal as the date of purchase was inconsequential and insignificant, because the core question was the very fact of purchase and

not the date of purchase.

Developing this argument, he contended that the plaintiffs had given the date of 15.02.1909, based upon their recollection of the historical facts, as

made known to them. It is a different matter that later the documentary and oral evidence unfolded that the shop and ‘Nohra’, which was jointly

purchased by Balwant Rai and Budhram, amount of Rs.250/- in relation therewith had been deposited in the year 1915. He submitted that merely

because an incorrect date had been mentioned in the plaint, the plaintiffs’ suit cannot fail, when they had specifically pleaded and proved that the

disputed property was jointly purchased by Balwant Rai and Budhram â€" their predecessor. He added that the date of purchase was hardly in

dispute and hence inaccurate particulars of such date deserves to be overlooked.

Mr. Shrimali cited following four judgments to bring home his point that minor variation in pleadings and evidence is not fatal to the case and stand of a

litigating party :-

(1). 2002 (2) D.N.J. Raj 597 (Devi Shanker Vs. Ugam Raj.) (para 22 to 25 and 31)

(2). AIR 1971 SC 2092 (P.V. Ayyappa Reddier Vs. Ayyappan Pillai Janardhan Pillai) (para-14)

(3). AIR 1976 SC 461 (Madan Gopal Kanodia Vs. Mamraj Maniram) (para-26)

(4). AIR 1966 SC 735 (Bhagwati Prasad Vs. Chandra Maul) (para-10 & 11)

In response to the argument of the appellants with regard to certified copies of some documents/proceedings obtained from Office of the Rajasthan

State Archives, Bikaner, Mr. Suresh Shrimali submitted that the document Ex.5 placed by the plaintiffs was a document from the proceedings of Case

No.40 decided on 16.4.1930. He pointed out that copies from the said file (Case No.40, decided on 16.04.1930) have also been placed by the

defendants themselves.Â

Replying the argument advanced by Mr. Aggarwal in relation to the relevance and evidentiary value of the documents vis-a-vis Section 35 of the

Evidence Act, he submitted that the documents relied upon by the plaintiffs were very relevant and reasonable proof of the ownership of the

contentious shop and Nohra as these documents were prepared by the Government authorities, in discharge of their official duties. He submitted

that document Ex.3, 4 and 5, all contain reference of a case No.40 decided on 16.4.1930, prepared in furtherance of a case referred to and relied upon

by the defendants being Ex.A/25, which also makes a clear reference of the case No.40, decided on 16.4.1930. He submitted that the defendants

having relied upon document from the said file namely Ex.A/25 and A/13 cannot be heard to say that these documents are neither relevant nor have

been prepared during the course of discharge of official duties. It is noteworthy that neither Mr. Shrimali nor Mr. Aggarwal were in a position to

apprise the Court as to what was the case No.40 decided on 16.4.1930 or what were the proceedings in which these documents had been placed or

drawn?

Explaining these documents, Mr. Shrimali stated that the documents Ex.5 and Ex.6 show that the price of shop in question, which was initially agreed

to be sold for a sum of Rs.1000/-, had been reduced to Rs.250/- and during those proceedings, concerned Tehsildar had visited the shop and had

reported unequivocally that Budhram and Balwant Rai were the owners.

With these facts having come on record, Mr. Shrimali submitted that the documents Ex.5 and Ex.6 and entries contained therein were unquestionably

relevant and were valid proof of the fact that the shop and Nohra in question were conjointly purchased by Balwant Rai and Budhram. He argued

that in the facts obtaining in the present case, the relevance and evidentiary value of these documents, certified copies whereof have been placed,

cannot be doubted, let alone denied. Learned counsel argued that as there was no direct evidence or document of title and both the parties have

relied upon indirect, peripheral or circumstantial evidence, these documents become relevant.

Responding to Mr. Aggarwal’s arguments based on the defendants’ documents namely Ex.A-13 wherein name of the purchaser had been

shown as Budhram S/o Net Ram, Mr. Shrimali tried to explain the factual position by saying that true it is, that the name of purchaser in Ex.13 has

been shown as ‘Budhram S/o

Netram’ whereas name of father of Budhram was Dalsukh Rai, but it was obviously an inadvertent error or slip of pen. He added that except

for the documents Ex.13, in all other documents name of the joint owner is shown as Budhram and Balwant Rai, for which the minor discrepancy in

the name of father of Budhram needs to be overlooked or ignored. Mr. Shrimali contended that such argument in any case, does not help the cause

of the appellants as there is no dispute in relation to paternity of Budhram.

After dealing with the arguments of Mr. Aggarwal, learned counsel for the respondents â€" plaintiffs supported the finding of issue No.1 and

contended that there was sufficient material and evidence in support of the plaintiffs. To satisfy the Court that the trial Court has properly

appreciated the documentary evidence and that no other view was possible, Mr. Shrimali navigated the Court through various documents produced by

the parties to point out that after death of Budhram, his brother - Balwant Rai tried to get a ‘patta’/ title of the contentious property in his sole

name. In this process, he applied for grant of ‘patta’ before the Tehsildar, Suratgarh on 08.04.1926, in furtherance whereof the proceedings

were drawn being Ex.A/1 to A/9. These documents go on to show that the concerned Tehsilar had directed Balwant Rai to produce the original

receipt of depositing the money, which he failed to produce. As Balwant Rai failed to produce the original receipt, showing the payment by him,

concerned Tehsildar had closed the file on 15.7.1926, awaiting the receipt.

With the help of the documents produced by none other than the defendants, Mr. Shrimali argued that Balwant Rai’s attempt of getting

‘patta’ soon after the death of Budhram had failed for want of production of original receipt. Mr. Shrimali asserted that the amount of

Rs.250/-, was in the name of Budhram as alleged by the plaintiffs, however Balwant Rai / the defendants were having title documents and other

documents, which they had intentionally detained, with a view to deprive the plaintiffs of their rights. He contended that Surti Devi had come to

Abohar (Punjab), leaving her house and property in Sangariya and the property in question was being taken care of by Balwant Rai and after him, his

sons. It cannot be believed that the defendants were not having the documents, and hence on their failure to produce title documents and other

documents in relation to the property, an adverse inference needs to be drawn against them. He submitted that the documents produced by the

plaintiffs and defendants are enough to show that the contribution towards cost of shop and ‘Nohra’ was made by Budhram during the period

from 1909 to 1913 and hence the plaintiffs being successors of Budhram through Surti Devi, are entitled to be declared as joint owners of the shop

No.1 and ‘Nohra’ No.1.

Mr. Shrimali further argued that the plaintiffs had produced various documents evincing the shop to be jointly purchased by Budhram and Balwant Rai,

being Ex.3 to Ex.7 and adduced evidence in this respect, however the defendants/their counsel had not asked any question or made suggestion about

these documents to unsettle the plaintiffs’ case. He contended that the plaintiffs have proved by way of documentary evidence that the shop

No.1 and ‘Nohra’ No.1 were jointly purchased by Budhram and Balwant Rai and not solely by Balwant Rai, as claimed by the defendants.Â

Supporting the judgment under consideration, Mr. Shrimali read the contents of para No.8 of the plaint and contended that Budhram at first place and

Surti Devi in turn, were in possession of the property as joint owners, which is clear from the pleadings of para No.8 of the plaint, that the defendants

used to come to Abohar to remit the rent proceeds of the property. He curiously pointed out that the defendants’ witness DW-1, in so many

words had admitted that they used to go to Abohar for meeting Smt. Surti Devi. Mr. Shrimali argued that the admission of the defendants that they

used to go to Abohar 8 to 10 times a year clearly proves that the defendants used to come not for any other purpose, but to hand over the rent and

other accounts of the shop and ‘Nohra’ in question, as claimed by the plaintiffs.

Reading para No.9 and 12 of the plaint and corresponding statements, Mr. Shrimali submitted that the defendants had sold only half of the

‘Nohra’ and shop to Hansraj and the other part thereof were kept vacant, which shows that the defendants were not only aware, but had

consciously accepted and acknowledged the fact that Smt. Surti Devi was owner of the remaining part of ‘Nohra’ and shop.

Inviting attention towards the additional submissions made in para No.17 and 19 of the written statement, Mr. Shrimali pointed out that the defendants

had brought in a theory of partition, having taken place on 18.4.1960. He argued that different witnesses of the defendants had their own and

separate stories to be told about the partition; one said that it was oral; whereas another said that it was a written document. Mr. Shrimali

contended that leaving aside the fact that such partition, if reduced in writing, required registration and payment of stamp duty; it is interesting to note

that no such document had been placed by the defendants on record. He argued that even if it is presumed that an oral partition took place on

18.4.1960, then why the concerned persons having got the share in the property pursuant to the oral partition dated 18.4.1960, have kept the same

vacant/ unoccupied and literally abandoned, raising no construction thereupon. He thus contended that the conduct of the defendants itself suggests

that they were conscious of the fact that half of the portion belonged to Smt. Surti Devi - the plaintiffs, for which they did not touch that part of the

property.

Though Mr. Aggarwal had not pressed the issue relating to partition and had not challenged finding of the Court regarding adoption, yet Mr. Shrimali

dilated upon the adoption deed and the plea of adoption put forth by Jugal Kishore, in a bid to highlight rather expose the conduct of the defendants.Â

He submitted that the defendants have devised the theory of partition and adoption only with a view to scuttle the rights of the plaintiffs.

They were so wary of losing the case, that they brought in a forged adoption deed, by way of seeking amendment in the written statement, argued Mr.

Shrimali. With great deal of bewilderment, Mr. Shrimali urged that if Jugal Kishore was an adopted son of Budhram, he ought to have brought this

fact at the first instance. He submitted that in all the documents, written statement and even the ‘vakalatnama’, Jugal Kishore had stated

himself to be son of ‘Balwant Rai’ and not of ‘Budhram’. During his examination in chief and cross-examination, he even failed to

prove that he ever lived with Budhram or Smt. Surti Devi, urged Mr. Shrimali.

Learned counsel for the respondents argued that the defendants had been dishonest, for which they had taken shifting and self defeating stand; despite

their endeavour they had failed to produce any document or evidence showing the purported partition or adoption.

Critically analyzing the stand of Jugal Kishore, Mr. Shrimali argued that said defendant on the one hand said that he is adopted son of Budhram, and

on the other, asserted that Budhram had not jointly purchased the property. Mr. Shrimali posed a question to the appellants, that why had Jugal

Kishore gone in adoption to Surti Devi (Budhram) who hardly had any property and in such a case, how did he claim and get the share in the property

of Balwant Rai, after having gone in adoption to Budhram.

Supporting the judgment and decree impugned in the present appeal, learned counsel for the respondents carefully read the statement of plaintiff PW-

1 and Ex.2 to Ex.7 and contended that the plaintiffs have proved beyond doubt that the shop in question had been jointly purchased by Budhram and

after his death, Smt. Surti Devi became the owner of the contentious property and had been receiving rent and other proceeds flowing from these

properties.

Conclusion / Finding qua issue No.1 :-

Having given thoughtful consideration over the matter, I am of the view that first argument advanced by learned counsel for the appellants that there

is a great deal of variance in the pleadings of the plaintiffs and the evidence adduced, is not sustainable in the eye of law and hence, rejected.Â

It is true that the plaintiffs had asserted in their plaint that the shop and ‘Nohra’ in question had been purchased in an auction held on

02.09.1915; whereas the documents depict that the amount pursuant to the auction had been deposited on 10.05.1909. Looking to the nature of the

suit and the transactions date back to more than 70 years, in a suit filed by the third generation, the date or year of purchase is not of much

significance. The plaintiffs have pleaded that the shop in question had been jointly purchased by Budhram and Balwant Rai. In the present suit for

partition, the factum of purchase per-se is important and not the date of purchase. The plaintiffs are not expected to exactly know or remember the

date of purchase of property, and such slight variance in the pleadings is liable to be ignored. The argument of Mr. Aggarwal that the property cannot

be said to have been purchased in an auction in the year 1915, when the amount had been deposited on 10.05.1909, is technically correct, but this

cannot lead us to a conclusion that the properties in question were not at all purchased or not purchased jointly. If the plaint of the plaintiffs is read as

a whole, the date of auction may be of some relevance, loses its significance in light of other evidence available on record, which I propose to delve

upon later.

In light of the judgments cited by Mr. Shrimali, it is clear that the plaintiff is required to state material fact and according to this Court, the material fact

is the factum of purchase and not the date of purchase, inasmuch as even the defendants in their written statement have not disputed the date of

purchase or suggested any other date. The date of purchase was hardly of any material bearing in the present dispute. In my considered opinion, the

Courts should not scrutinize the pleadings with such surgical precision, lest it may result in the genuine claims of a party being defeated on trivial

technicalities.

Second argument advanced on behalf of the appellants, that the trial Court has completely misread the document Ex.-A/13 produced by the

defendants is equally hollow. As far as mentioning the name of the person, depositing the requisite amount as Budhram S/o Net Ram is concerned,

suffice it to observe that the said document had been drawn on 02.01.1914, showing payment of a sum of Rs.250/- on 10.05.1909. The particulars

given in the said receipt clearly depicts the name of Budhram, albeit with father’s name as ‘Net Ram’, and not Dalsukh Rai. Such

indiscrepancy in the paternity of Budhram is not fatal to plaintiffs’ claim, inasmuch as there is no person in the pedigree of plaintiffs and

defendants, in the name of Net Ram. Neither such person has ever claimed his rights for the shop and ‘Nohra’ in question nor have the

defendants brought such person to dislodge the claim of the plaintiffs.

It is noteworthy that except the document Ex.A/13, produced by the defendants-appellants, no document shows the name of ‘Budhram’ as son

of ‘Net Ram’. Hence, merely because in one of the documents, name of the person depositing the amount has been shown as ‘Budhram S/o

Net Ram’, it cannot be concluded that the property in question was not purchased by Budhram.

Mr. Aggarwal’s other arguments that the plaintiffs had asserted that the shop in question was purchased for a sum of Rs.1000/- and the plaintiffs

had pleaded to have paid a sum of Rs.250/- only, without stating as to how and when the remaining amount of Rs.750/- came to be deposited, is also

misplaced. Reasons for which are not far to seek; according to the defendants’ own documents, the price of the shop and ‘Nohra’ in

question had been reduced from Rs.1000/- and Rs.800/- to Rs.300/- and Rs.250/- respectively w.e.f. 01.07.1913, by virtue of order dated 25.03.1913

issued by the Revenue Commissioner, Bikaner. As such, the failure of the plaintiffs to disclose or state as to when the remaining amount was

deposited, does not materially affect the right of the plaintiffs, particularly because neither any substantial amount was deposited nor it was required to

be deposited, as the price admittedly stood reduced by the competent officer. Â

Adverting to the argument of Mr. Aggarwal that the Court ought not to have given any credence to Ex.5 and 6, being certified copies of the

documents obtained from the Rajasthan State Archives, Bikaner; I find that the same is unsustainable in the eye of of law. His argument in this regard

had been that the purpose of keeping record of such entry has not been mentioned / disclosed by the plaintiffs and as such the same cannot be used

for the purpose of proving ownership, as certified copies of the documents, even if from public record, can be relied upon if they had been recorded

during the course of statutory duties, else they cannot be said to be relevant entry as provided under Section 35 of the Evidence Act, is unsustainable

and untenable.Â

The plaintiffs had produced documents from State Archives, Bikaner, which is a repository of all documents and record of transactions. Firstly, a

certified copy of the document obtained from State Archives cannot be said to be irrelevant. Secondly, a perusal of the document Ex.5 and 6 reveals

that the same are certified copies of proceedings/document from the file of Case No.40, decided on 16.4.1930 indisputably relating to the shop in

question. It is true that none of the parties have been able to apprise this Court about the nature of dispute/proceedings of said Case No.40;

nonetheless as the defendants-appellants themselves have relied upon the document(s) obtained from the said proceedings, being Ex.A/13 and

Ex.A/14, it does not lie in their mouth to raise such argument, having heavily relied upon those documents. This objection deserves to be repelled also

because the appellants had not raised the same at the time of tendering these documents in evidence. The argument of Mr. Aggarwal in this regard

being an argument in disguise, is rejected.

Mr. Suresh Shrimali, learned counsel for the respondents besides answering the arguments advanced by Mr. Aggarwal, supported the findings in

relation to issue No.1 on various other counts.Â

Considering the arguments; wading through the documents produced by the rival parties and the judgments cited at Bar, this Court is of the considered

opinion that there were sufficient oral and ocular evidence to decide the issue No.1 in favour of the plaintiffs.

It has come on record that Budhram had expired somewhere in 1926. The documents produced by the defendants, being Ex.A/2 to A/6 and all

other documents are the documents relating to period after his death (year 1929 and thereafter). These documents placed by the defendants of

course show the name of owner as Thandi Ram Balwant Rai; however, a close scrutiny of the documents Ex.A/2 to Ex.A/12 reveals that they relate

to proceedings drawn pursuant to the application of said Balwant Rai for grant of ‘patta’. These documents are essentially based upon

assertion of Balwant Rai, claiming himself to be the owner of the shop and ‘Nohra’ in question, in furtherance of his application dated

08.01.1924.Â

It is noteworthy that these proceedings were ultimately closed by Tehsildar on 15.7.1926, as Balwant Rai had failed to produce the receipt of

depositing the amount. It is relevant to note that Balwant Rai was the person, who had jointly (or solely) purchased the shop and ‘Nohra’ in

1909 and the application for grant of ‘patta’ was also filed by none other than Balwant Rai himself. The fact that said Balwant Rai failed to

produce the original receipt in relation to shop and ‘Nohra’ in question and that the file was ultimately closed, awaiting the receipt; suggests

otherwise. It cannot, but be believed that Balwant Rai being the co-owner would not have a receipt or knowledge or some evidence showing the

payment of the amount. During his life time, Balwant Rai could very well produce other supporting evidence to show that the payment had been

made by him or the shop was purchased by him alone or Thandi Ram Balwant Rai. It is surprising that Balwant Rai did not pursue the said case for

getting ‘patta’ of the shop and ‘Nohra’, any further after the file was closed.Â

In considered opinion of this Court, the documents obtained from record of said file, which stood closed as a result of failure of Balwant Rai, the

purported owner of the shop, cannot be given any cognizance or credence. This Court finds substance in the argument of Mr. Shrimali that Balwant

Rai being joint owner and the person residing in the said town was expected to have document of title with him. The fact that the defendants being

his heirs and having control over the property have not produced any title document or other material evidence to show that the property in question

was purchased by Balwant Rai or by the firm Balwant Rai Thandi Ram, clearly suggests that they have withheld or detained such document(s) so as

to suppress or surpass the truth.

An appraisal of statement and cross-examination of the plaintiffs’ witnesses, reveals that no material question was posed to these witnesses about

the document Ex.A/3 to Ex.A/7 and the defendants have not been able to disprove or dislodge the factum of payment of the amount towards the cost

of shop No.1.

Apart from the above, the plaintiffs have specifically pleaded in their plaint duly supported by oral evidence that Budhram at first instance and Smt.

Surti Devi thereafter, were in possession of the property as joint owner and the defendants have been handing over the rent proceeds to them.Â

During their evidence, the defendants have admitted to have visited Surti Devi’s place at Abohar 8 to 10 times each year. The purpose of such

visit, which according to the plaintiffs was for payment of rent proceedings, and the factum of visit, if not the purpose, had duly been admitted by the

defendants’ witnesses.

Besides above, the stand of the defendants speaks volumes about their conduct and uncertainty of their right and title. The defendants have brought

in the theory of adoption of Jugal Kishore by Smt. Surti Devi on the one hand and on the other hand introduced the theory of oral partition on

18.4.1960. In considered opinion of this Court, both these stands are self defeating. If the defendant No.2 Jugal Kishore had been adopted by

Smt. Surti Devi, there could not have been any question of partition of the properties amongst the sons of Balwant Rai, including Jugal Kishore.

Apart from this, had the property been partitioned way back in April, 1960, then one is left surprised that why half of the properties remained

unconstructed or unutilized, inspite of the fact that the defendants have purportedly got title and possession on their part of the partitioned properties.Â

However Mr. Shrimali’s argument that the defendants had sold and raised construction only on half of the properties, shows their acceptance of

plaintiffs’ rights, though appears to be attractive but this fact in itself is not sufficient to show that the defendants had accepted and acknowledged

plaintiffs’ share in the property.

On overall analysis of the pleadings, evidence and documents on record, keeping in view that there is no title document or direct evidence in relation to

the ownership of the suit properties; on the basis of preponderance of evidence, this Court affirms the finding arrived at by the trial Court that the shop

No.1 and ‘Nohra’ No.1 in question were purchased by Budhram jointly with Balwant Rai. Â

Issue No.2 : Whether Mst. Surti Devi executed a will on 20-6-1964 in favour of the plaintiffs and got it registered with sub-registrar at Ferozpur ? If

so, what is its effect ?

Contentions of the appellants :

The above issue relates to execution of the will dated 20.06.1964, by Smt. Surti Devi in favour of the plaintiffs.Â

The defendants had opposed the execution and veracity of the will made by Surti Devi alleging that she was physically and mentally not capable of

executing the will. Keeping this objection in mind, the learned Court below weighed the oral evidence vis-avis the registered will and observed that the

defendants have not led any evidence about physical and mental condition of Surti Devi and the only testimony of Jugal Kishore in this regard cannot

be believed, as he did not reside in Abohar with or near Surti Devi. This being the position the Court below decided this issue against the defendants.

Mr. Aggarwal impeached the will on various counts and argued that the will had been executed in suspicious circumstances and its text and tenor is

ambiguous, hence the same cannot be accepted and considered as a document devolving purported rights of Smt. Surti Devi upon the plaintiffs.Â

While reading the will Ex.1, he contended that the will, instead of containing description of the properties, simply contains a stipulation that her

properties in Sangariya and Abohar would devolve upon the plaintiffs. He argued that until and unless description of the property is given, the same

does not create or convey any right in favour of the beneficiaries.Â

He added that neither the executor, namely Smt. Surti Devi has made any assertion about her being in a proper state of mind and senses, nor have the

plaintiffs proved the same by way of leading evidence. With a view to substantiate his suspicion about the will, learned counsel argued that the

plaintiffs were distant relatives of Smt. Surti Devi, and she had not even disclosed her relationship with the plaintiffs, in such situation the natural

question, which crops up in anybody’s mind is; why had she bequeathed her entire property to the plaintiffs ?

Dealing with the oral evidence led for the purpose of proving the will, he argued that it is not clear as to whether the attesting witnesses were available

on the site; or they were called by Smt. Surti Devi; or by the plaintiffs ! Reading the statement of PW-5 Jasraj â€" the attesting witness; PW-2 â€

Sub-Registrar; and PW-3 Kulwant Rai â€" scripter of the will, he submitted that each one of them had their own story to be told and there is no

consistency between their stand about the time of execution of the will, marking the thumb impression of Smt. Surti Devi and that at whose request

they (attesting witness) had come to the Sub â€" Registrar’s Office for attestation or otherwise. Mr. Aggarwal further submitted that the

attesting witnesses are not related with the executor of the will (Smt. Surti Devi) and even during their testimony, they have failed to satisfy about

their relationship or acquaintance with Smt. Surti Devi. He argued that the attesting witnesses who had come in the witness box, to prove the will

were not clear as to whether they had been called by Smt. Surti Devi or they were available in the Sub-Registrar’s Office and if yes, why?

Dealing with the testimony of said witnesses, Mr. Aggarwal pointed out a few discrepancies and contended that these discrepancies strengthens the

suspicion about the execution of the will, more particularly as the attesting witnesses had been brought by none other than the plaintiffs themselves.Â

In light of these arguments, he contended that the will cannot be said to have been properly and validly executed by Smt. Surti Devi, whose identity

itself was also not known, much less proved. Mr. Aggarwal further contended that even the note of the SubRegistrar, made while registering the

will, does not indicate as to whether Smt. Surti Devi was in her proper mental and physical state to execute the will.

With these arguments, learned counsel for the appellants submitted that there are strange and suspicious circumstances, surrounding the will and as

such no credence can be given to it, as held in light of the judgment of Hon’ble the Supreme Court, reported in (1992) 2 SCC p.507 (para 3 and 4)

[Guro (Smt.) Vs. Atma Singh & Ors.].Â

With the aid of the judgment aforesaid and the arguments advanced, Mr. Aggarwal contended that will purportedly executed by Surti Devi, though

registered cannot be believed and acted upon; and even if it is assumed that some rights had devolved in Smt. Surti Devi, such rights cannot be said to

have vested in the plaintiffs, by dint of the disputed will.     Â

Learned counsel for the appellant thereafter argued that the will in question has not been properly registered, as the Registrar has not complied with

the prerequisites of registration, prescribed under Section 63 of the Registration Act, 1908.

It would not be out of place to reproduce Section 63 of the Act of 1908, which reads thus :-

“63. Power to administer oaths and record of substance of statement.-

(1)Â Â Â Â Â Â Â Every registering officer may, at his discretion,administer an oath to any person examined by him under the provisions of this

Act.

(2)Â Â Â Â Â Â Â Every such officer may also at his discretionrecord a note of the substance of the statement made by each such person, and

such statement shall be read over, or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he

is acquainted, and, if he admits the correctness of such note, it shall be signed by the registering officer.

(3)Â Â Â Â Â Â Â Every such note so signed shall be admissible forthe purpose of providing that the statements therein recorded were made by the

persons and under the circumstances therein stated.â€​

Drawing the attention of the Court towards the contentious will dated 20.6.1964 (Ex.1) and the endorsement made thereupon, he argued that the

Registrar had neither recorded his satisfaction about the identity of the testator â€" Smt. Surti Devi nor has he recorded that she was in sound physical

and mental condition to be able to execute the will. Learned counsel submitted that the endorsement made by the Registrar does not conform to the

requirement of Section 73 and other relevant provisions of the Act. It would not be out of place to reproduce the Hindi translation of contentious will

dated 20.6.1964 with its endorsement and the notes made by the witnesses, being Ex.2-

C :-

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tks fd eSa Jhefr ljrh nsoh mez djhcu& 65 lky fo/kok Jh Nktwjke iq= cq/kjke vxzoky & fuoklh vcksgj cMh mej nh gks pqdh gks vrs viuh py rs vpy lEefr

nh Absolute ekfyd gk blybZ bl fy[kr jk gh vk[kjh olh;r dj nh gk fd ejs ejxk ihNks ejs h ?kMh gks;h py rs vpy lEifr tks gqu fLFkr vcksgj vr% laxfj;k

eaMh jktLFkku vrs tsukckn Mfgjk rglhy jsokMh gS tk vxs vius thou fop izkIr djkaxh tks mDr LFkkuk nh lEifr nh onyh djds izkIr djkaxh ml ns gdnkj rs

ekyd Jh [ksepUnz] jkeyky] fd’ku yky iq= Jh y[kehpUnz iks=s irjke vxzoky fuoklh vcksgj eaMh c fgLlk& cjkcj& gkso jkxs mUgksus rks fcuk gksl

fdl nk dksb gd ugh gksosxk vrs uk gh dksbZ fdlh gd nh ekxa dj ldsxk eus q iqjk iqjk vf/kdkj gS fd eSa viuh eky dh py rs vpy lEifr uw ftl rjg pkgok djk

A bl ybZ &, vk[kjh olhrukek fy[k firk gS fd lUnz jgs A fefr 20-6-64 ts 1886 lkdk A

Jh d’kehjhyky ,e&lh        fu0 v0   Jh tljkt iq= Jh vehjpUn vcksgj ¼kashmirilal½    Jhefr ljrh nsoh vxzsth esa

20-6-64

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fQjkstij            jftLVjk ua- 582 542 V

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Mr. Aggarwal vehemently contended that merely because the testator had appeared before the Registrar and had been duly identified, does not

necessarily mean that she was physically and mentally agile to execute the will.

With these submissions, learned counsel contended that the Court below has erred in deciding the issue No.2 against the appellants and holding the will

to be executed in favour of the plaitniffs.

Contentions of respondents :-

Supporting the finding of the Court below qua issue No.2, Mr. Shrimali read the statement of DW-5 Jugal Kishore and pointed out that he had deposed

that Surti Devi died in 1973 and was having old aged ailments, for which she could neither properly walk nor could hear and comprehend the things

and as such it cannot be believed that she could execute a will in 1964.Â

Reading the aforesaid part of the statement, Mr. Shrimali submitted that DW-5, who claims himself to be adopted son of Surti Devi was not even

aware about her death, and stated her year of death to be 1973 instead of 1970 as such his testimony about the physical condition of the testator

cannot be believed.

He further argued that the defendants have concocted a story of partition in the year 1960, and notwithstanding the divergence of stand, no document

evincing the partition had been brought on record, which fortifies the stand of the plaintiffs that the defendants were very much aware that shop No.1

and Nohra No.1 were jointly owned by Balwant Rai and Budhram.

Learned counsel for the respondents urged that DW-5 Jugal Kishore in his statements admitted that an agreement had been executed for the entire

shop, however, actual sale and consequential conveyance was executed for half of it only, which fact also shows that half share of the shop was

owned by Budhram/Surti Devi.

Discussing the deposition of DW-1 Hari Chand, Mr. Shrimali argued that in the written statement filed by the said defendant, it had been specifically

asserted that he had neither met Surti Devi nor had he ever gone to her place at Abohar, whereas during the course of cross-examination, said

witness has admitted that he used to go to Abohar to meet Surti Devi 10-12 times a year. Highlighting the said contradiction in the stand of the

witness, Mr. Shrimali contended that Hari Chand used to go 10-12 times a year to Surti Devi’s place, not for any other purpose, but to give her

share of the rent proceeds, arising from the Nohra and shop.

He added that the defendants had sold only half portion of the shop and did not raise any construction on half portion of the Nohra; which by itself is

sufficient to show that defendants were aware of and acknowledged the fact that half of these properties belonged to Surti Devi.

Responding to arguments raised by the appellants in relation to will, Mr. Shrimali at the outset submitted that the contention which have been raised by

Mr. Aggarwal about the veracity and legality of the will had neither been taken in the written statement nor were such arguments ever advanced

before the Court below. He went on to add that the appellants have not even taken these grounds in the memo of appeal, questioning the legality of

will based on the statements of the attesting witnesses and not recording of satisfaction by the registering authority. He pointed out that in the

written statement, the defendants had essentially questioned the physical and mental ability of Surti Devi with an assertion that she was not in a

position to execute a will. He asserted that this is the only ground taken in the memo of appeal. Learned counsel for the respondents submitted that

the appellants have neither taken these grounds in their memo of appeal nor have they sought any leave of the Court in this regard, hence cannot be

considered.

Mr. Shrimali submitted that other ground impeaching the will, as raised in the memo of appeal is; that the will is forged in view of the fact that Jugal

Kishore had been adopted by Surti Devi. He submitted that such argument of the appellants that the will in question in favour of the plaintiffs is

questionable, as Smt. Surti Devi having adopted Jugal Kishore cannot be believed to have bequeathed her moveable or immoveable properties to the

plaintiffs, is untenable in the facts of the case at hand. Â

Notwithstanding the above, learned counsel for the respondents submitted that there had been no argument by the appellants in relation to attesting

witnesses nor any question had been asked to the witnesses during the cross examination, so as to doubt their presence or attestation by the

witnesses. He submitted that a conjoint reading of the deposition of PW-1 & PW2 the scriptor, and the attesting witnesses being PW-3 & PW-4, the

registered will in question has been duly proved, leaving no doubt about its genuineness.

Mr. Shrimali contended that the defendants have challenged the will essentially rather solely on the basis of physical and mental condition of the

testator Smt. Surti Devi and even that fact, they have failed to prove.Â

Reading the testimony of DW-1, Mr. Shrimali pointed out that he had only deposed that when he met Smt. Surti Devi in 1971, she was talking to him

and was in full senses, but was slow and also that her eye sight was week. With these limited statements, it cannot be inferred that Smt. Surti Devi

was physically and mentally unfit to execute a will, argued learned counsel while maintaining that the contentious will is a registered will and there is a

strong presumption in its favour. In case of a registered will, the bald assertion or allegation about the physical and mental agility of a person is not

enough to falsify a will. Heavy burden lies upon the person to prove these facts, who asserts that the testator was not in a proper physical and mental

condition to execute a will.

In support of aforesaid contentions, Mr. Shrimali cited the following judgments :-

(1)Â Â Â Â Â Â Â 2010 (2) WLC SC 114 (Samir Chandra Das Vs. Bibhas Chandra Das & Ors.)

(2)Â Â Â Â Â Â Â 2014 SCW 5233 (Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors.)

In support of his arguments that the documents in question can be considered notwithstanding the provisions of Section 35 of the Evidence Act, Mr.

Shrimali cited the following judgments :

(1)Â Â Â Â Â Â Â 1925 Privy Council 170 (Mian Ghulam Rasul Khan Vs. The Secretary of State for India)

(2)Â Â Â Â Â Â Â 1968 RLW 308 (Para 9 and 17) (Lalit Kishore Vs. Laxaminarayan)

In response to the Court’s query as to whether, in absence of any document of title, inference or finding of the ownership can be drawn on the

basis of circumstantial evidence, Mr. Shrimali cited following judgments :-

(1)Â Â Â Â Â Â Â AIR 1996 SC 1599 (R. Puthunainar Alhithan Vs. P.H. Pandia) (para 7 and 8)

(2)Â Â Â Â Â Â Â AIR 1998 SC 310 (Rebti Devi Vs. Ram Dutt) (para 6)

(3)Â Â Â Â Â Â Â AIR 1999 SC 2216 (Arunmugham Vs. Sundarambal) (para-16)

(4)Â Â Â Â Â Â Â AIR 1964 SC 880 (Devadattam Vs. UOI) (para-11)

(5)Â Â Â Â Â Â Â AIR 1922 PC 39 (Maba Kishore Mandal Vs. Upendra Kishore)

(6)Â Â Â Â Â Â Â AIR 1939 Allahabad 257 (M.Aziz Vddin Vs. Haji Maqbul)

Out of the aforesaid judgments cited by Mr. Shrimali, except for the two judgments namely AIR 1996 SC 1599 and AIR 1998 SC 310, other

judgments are about the burden of proof, which in the present case are not relevant.

First two judgments of Hon’ble Supreme Court are about the proposition that in absence of direct evidence, the Court can proceed on the basis of

oral or other peripheral documents.

Mr. Aggarwal, learned counsel for the appellant in rejoinder submitted that the plaintiff had not pleaded the terms of the sale, which was not only

relevant but material part, for which suit filed by the plaintiffs was bound to fail.

Elaborating his arguments, learned counsel contended that according to the plaintiffs’ own saying the shop in question was purchased for a sum of

Rs.1000/-; out of which Rs.250/- had been paid/deposited by Budhram, then when and by whom the remaining consideration of Rs.750/- had been

paid, remains a core question! Mr. Aggarwal argued with a pinch of astonishment.

In support of his contention, Mr. Aggarwal cited following judgments of Hon’ble Supreme Court :-

(1)Â Â Â Â Â Â Â 1998 (8) SCC 315 (para-7) (D.M. Deshpande & Ors. Vs. Janardhan Kashinath Kadam (D) by LRs & Ors.)

(2)Â Â Â Â Â Â Â AIR 1953 (SC) 235 (Messrs. Trojan & Co. Vs. RM.N.N. Nagappa Chettiar)

(3)Â Â Â Â Â Â Â (2012) 1 SCC 656 (Suraj Lamp & Industries Pvt. Ltd. through Director Vs. State of Haryana & Anr.)

Questioning the will, Mr. Aggarwal in rejoinder submitted that evidence on record clearly shows that the beneficiary of the will namely Khemchand

had played leading role and it was he, who led Smt. Surti Devi, the testator to the scriptor and to the Office of the Registrar, which facts render the

will not only suspicious but make it vulnerable and liable to be declared void.

In support of this contention, Mr. Aggarwal cited the judgment of Hon’ble Supreme Court, reported in AIR 1959 (SC) 443 (H.Venkatachala

Iyenger Vs. B.N. Thimmaajama & Ors.).Â

Mr. Aggarwal rested his arguments by saying that the plaintiffs were required to prove that the contentious property had been purchased by Budhram

and the onus to prove this fact lay upon the plaintiffs, in which they have failed and that the plaintiffs have to succeed on the basis of their own

pleadings and evidence and they cannot take advantage of the lacunae in the pleadings or evidence led by the defendants.

Finding/Conclusion qua Issue No.2 :-

A perusal of the written statement of the defendants shows that they had objected or questioned the will of Smt. Surti Devi essentially rather solely on

the ground of her physical and mental incapacity. The entire line of statement and cross-examination revolves around the physical and mental state

of Smt. Surti Devi. Despite all efforts, the defendants have failed to prove that Smt. Surti Devi was not physically and mentally agile to execute a will.

The defendants’ witness DW-1 Harichand having stated in the written statement that he had neither met Surti Devi nor had gone to her place at

Abohar, during the cross-examination had changed his version and admitted that he used to go to Abohar to meet Smt. Surti Devi 10 to 12 times a

year. Such witness, who used to go so frequently, could not prove or even assert that Smt. Surti Devi was physically or mentally impaired to be able

to execute a will.Â

Deposition of DW-5 Jugal Kishore reveals that when he last met Surti Devi, she could neither properly walk nor could she hear or comprehend the

things properly. Such bald assertion of the witness is not sufficient to hold the will to be spurious or forged; particularly when the same is a

registered will, executed about 6 years prior to her death. It is to be noticed that both the attesting witnesses had come in the witness box to prove

its valid execution and deposed that they have seen Surti Devi executing/ signing the will, without any coercion or force.

All other arguments advanced by Mr. Aggarwal about the attesting witnesses and the doubt created out of the alleged flickering or shifting stand of

the attesting witnesses; his argument that how and at whose request they appeared before the Registrar for attestation, while the will was being

registered, are questions which cannot possibly be gone into by this Court, as the defendants had neither raised such objection in their written

statement nor had they cross examined or confronted any witnesses on these aspects.Â

It is pertinent to note that the appellants have neither raised these grounds in the memo of appeal nor have they sought any leave to incorporate these

grounds, inspite of the fact that the present appeal is pending consideration before this Court for more than 30 years. Hence all other arguments

raised by the appellants touching upon the competence or legality of will cannot be and are therefore not permitted to be raised. These arguments

though noticed, but not being dealt with, keeping in mind the mandate of Order XLI Rule 2 of the Code of Civil Procedure, 1908.

It is an admitted fact that the will Exhibit-1 had duly been registered by the registering authority. It is true that the will in question is not happily

worded, yet this Court has no reason to doubt the veracity or genuineness of the will in question. The plaintiffs have proved that after death of

Budhram, Smt. Surti Devi being her daughter-in-law had shifted to Abohar and the plaintiffs have been living with her. In the facts obtaining, her

natural inclination would be surely towards her nephews, who have been taking her care and living with her. Hence, the bequeathment by Surti

Devi in plaintiffs’ favour is beyond pale of doubt, rather it is natural. Knowing that the shop and ‘Nohra’ in question were jointly

purchased by Budhram, Smt. Surti Devi being owner of these properties, would normally like to ensure that the property devolves upon those, who

have been taking her care in hard times.Â

A perusal of the will, particularly note of the registering authority reveals that he had satisfied himself about the identity of Smt. Surti Devi and the

execution of will without fear or coercion.

In view of the discussion aforesaid and weighing the oral evidence adduced by the plaintiffs and the defendants, this Court has no hesitation to hold

that Smt. Surti Devi had executed the registered will on 20.06.1964, in favour of the plaintiffs.      Â

The finding of the trial Court about this issue is thus upheld and appellants’ challenge is repelled.

Issue No.3 : In case issue No.2 is decided in favour of the plaintiffs, whether the suit of plaintiffs is not maintainable for not obtaining probate of the

above will ? DÂ Â

The third issue was regarding obtaining probate of the will in question, which issue Mr. Aggarwal has not pressed, reconciling with the position of law

that probate of will is not necessary, except in case the property falls in the Presidency towns, as provided under Section 53 of the Indian Succession

Act.

Issues No. 4 and 5 :Â (4) Whether the alleged adoption deed dated 10-4-1934 was executed by Mst. Surti Devi in favour of Defendant No.3

?   D

(5) In case issue No. 4 is decided in favour of defendant No.3, whether the adoption deed is void, in operative and of no legal consequence for the

reasons given by the plaintiffs in their replication ? P

Hardly had Mr. Aggarwal begun his submissions in relation to issues No.4 and 5, when the Court interjected him and posed a question as to how the

present appellants (defendants No.6 & 7) not being the beneficiaries of the adoption deed, can challenge the findings in relation to the adoption deed,

which essentially concerns Jugal Kishore, who has chosen not to file any appeal, laying challenge to these findings ?

Mr. Aggarwal realizing his impediment, abandoned his arguments qua issues No.4 and 5.

Issue No.6 :Â Â Whether the suit is not properly valued and the court fees paid is in-sufficient? D

Mr. Aggarwal contended that the Court below has erred in holding that the Court fees in question has been properly paid. He submitted that as the

plaintiffs were not having possession over the property, the Court fee should have been paid at the rate of half of the market value of the property.Â

I am of the opinion that argument of Mr. Aggarwal in this regard is fallacious, particularly in wake of the finding arrived at by the Court below that the

plaintiffs were having possession over the property, as the defendants have been paying rent of the suit premises to Smt. Surti Devi.Â

In view of the facts of the case at hand, the Court fees as paid by the plaintiffs, claiming themselves to be in possession, the suit had been properly

valued and Court fee paid is correct.

Issue No.7 : Whether the suit of the plaintiff is time barred ? D

Looking to the facts involved in the present case, particularly because Smt. Surti Devi passed away on 16.2.1970, after executing a will on 20.6.1964,

the property in question devolved to the plaintiffs only on the advent of death of Smt. Surti Devi i.e. on 16.2.1970. The suit in question having been

filed on 09.12.1972 was well within a period of three years from the death of Smt. Surti Devi. It is thus clear that the suit had been filed within the

prescribed period of limitation.

Issue No.8 :Â Whether the defendants are in possession of the properties in dispute for the last more than twelve years and are in peaceful

enjoyment of the properties as owners and as such they have acquired title by adverse possession ?     D

Mr. Aggarwal abandoned the challenge to the findings and apprised that he does not press his ground(s) in relation to Issue No.8.

Issue No.9 : Whether the plaintiffs are entitled to partition of the property in dispute and to recover the possession thereof ? P

Issue No.9 essentially is consequential issue depending upon other issues, for which no separate arguments were required and hence, not raised by

Mr. Aggarwal.

In light of the finding qua issues No.1 and 2 recorded by this Court, this issue deserves to be decided in favour of the plaintiffs. The trial Court has

therefore rightly decided issue No.9 in plaintiffs’ favour and drawn the preliminary decree.

Issue No.10 :Â What is the effect on this suit, of transfers of the property by plaintiffs and dependents during the pendency and before the

commencement of this suit ?

The trial Court while deciding issue No.10 and passing the preliminary decree has kept it open to see the effect of the decree on the sale pendente

lite. Mr. Aggarwal has opted not to advance any argument(s), as the Court had observed that the requisite adjustments of the sale consideration

would be made at the time of drawing the final decree.

Issue No.11 :Â Whether the defendants are entitled to compensatory costs of Rs.5000/-, U/S 35 A C.P.C.? D

As the Court had not awarded any compensatory cost, this issue becomes academic and does not require any deliberation.

Issue No.12 : Whether the property in dispute has been partitioned between the heirs of Thandi Ram and Balwant Rai prior to the institution of the suit

on 18-4-60 as alleged in para 17 of written statement ?

If so what is its effect ?

Mr. Aggarwal tried to contend that the property in question had been partitioned between the heirs of Thandi Ram and Balwant Rai, prior to institution

of the suit.Â

In the teeth of the finding that the property was jointly owned by Balwant Rai and Budhram, Mr. Aggarwal did not have much to argue in relation to

findings arrived at qua this issue.

As the findings of issues No.1 and 2 recorded by the trial Court stood affirmed by this Court, Issue No.12 relating to partition of the property between

the heirs of Thandi Ram and Balwant Rai needs no further discussion as the theory of partition has been found to be a farce.

During the course of hearing of the appeal, learned counsel appearing for the rival parties have cited a plethora of precedents of Hon’ble the

Supreme Court and of this Court. Learned counsels have read the relevant part thereof, during the course of hearing and placed their view points to

fit in the facts of the case at hands. All the judgments cited by learned counsel are on general principles, which have been duly followed by the

Court below. This Court has also taken into consideration and borne in mind these principles, while deciding the instant appeal.

In a bid to avoid unnecessary repetition and to confine the length of an otherwise lengthy judgment, reproduction of the relevant paras/parts of the

judgments has been consciously avoided. Needless to iterate that principles propounded vide these cases have been considered, applied and

followed.

In view of the discussion foregoing, findings arrived at and following the law cited, I find no merit in the appeal, for which it is dismissed, however

leaving the parties to bear their own costs.

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