Smt. Nanhi Bal, Etc. vs Smt. Shuo Devi and Others

B.S. Yadav, J.—The present Respondents No. 1 to 4, who are widow, son and daughters of Kanhiya Lal, had filed this suit against the present Appellant Nanhi Bai for possession of the suit land, measuring 16 Kanals l7 Marias, situated in village Khaira, District Mohindergarh. Respondent No. 5 Sumitra who is also daughter of Kanhiya Lal was made a proforma Defendant No. 2 in the suit Respondent No. 6 Phula son of Manohar Lal was also made a proforma party as Defendant No. 3, but, in this appeal, the Appellant gave him up According to the allegations in the plaint, the Plaintiff and proforma Defendants 2 and 3 were owners of this land. Nanhi Bai took illegal possession of it about 4 or 5 years prior to the filing of the suit. Hence, the suit.

Nanhi Bai Defendant contested the suit. She denied the ownership of Plaintiffs and Defendants 2 and 3 over the suit land and pleaded that Sheo Bai, Plaintiff No. 1 had left her husband, Kanhiya Lal and gone to Muzaffamagar. After the death of Kanhiya Lal, Sheo Bai performed Kareva with somebody and became a won on of easy virtue. Plaintiffs 2 to 4 and Defendant No. 2 Surnitra were born long after the death of Kanhiya Lal. Chander Bhan succeeded to the estate of Kanhiya Lal and he executed a will in her (Nanhi Bais) favour on August 6, 1954. Chander Bhan also died in 1956 and after his death, she took possession over the suit land under the will. Since then, her possession is adverse to that of the Plaintiffs and she has become its owner She also took certain other pleas as will be clear from the following issues framed by the learned trial Court:

Whether the Plaintiffs and proforma Defendants are owners of the suit property ? OPP

Whether the contesting Defendant No. 1 has become owner of the suit property by adverse possession ? OPD

Whether Chander Bhan deceased, had executed any will with respect to the suit property in favour of Defendant No. 1, if so, to what effect ? OPD

Whether the suit is within limitation ? 0PP

Whether the Plaintiffs are estopped from filing the present suit ? OPD

Whether the Plaintiffs have locus standi to file the suit ? OPP

Whether the suit is not mai"tainable in the present form ? OPD

7-A Whether Sheo Bai. has contracted Karewa marriage and if so, its result or led any immoral life ? OPD 8 Relief.

The learned trial Court discussed issues No. 1 and 3 together and held that the Plaintiffs and proforma Defendants were co-sharers of the suit land and that the document Ex. D-2 (copy Ex. D-l) purported to have been executed by Chander Bhan, was an agreement and not a will and therefore, under this document, the estate of Chander Bhan could not devolve upon Nanhi Bai. Issues No. 2 and 4 were also discussed together and it was held that Nanhi Bai Defendant No. 1 had proved her possession over the suit land since 1961 and she had not acquired ownership by adverse possession as the present suit bad been filed on May 9, 1969 Under issues 5, 6 and 7 it was held that the Plaintiffs were not estopped from filing the suit and as they were co-sharers in the suit land. Therefore, they could file the present suit for dispossession of Nanhi Bai, who was a trespasser. It was also held that the suit was maintainable in the present form. All the above issues were decided against the Defendants. Under issue No. 7-A it was held that it was not proved that Plaintiff No. 1 had performed Kareva after the death of Kanhiya Lal. As a result of the above findings, the learned trial Court decreed the suit of the Plaintiffs for possession of the suit land. Feeling aggrieved, Nanhi Bai filed an appeal which was heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Narnaul. Before him only the findings of the learned trial Court given under issues 2 and 3 were challenged. He confirmed the findings of the learned trial Court on those issues and consequently, dismissed the appeal. Still feeling dissatisfied, Nanhi Bai has come to this Court in appeal.

The Learned Counsel for the Appellant argued that the document Ex D 2 is a will exe:uted by Chander Bhan in favour of Nanhi Bai and the learned Courts below erred in holding that this document did not amount to a will. Before I take up the above argument, I may mention here that the dispute between the parties is about the inheritance of Kanhiya Lal who had admittedly 1/3rd share in the suit land. Kanhiya Lal died on September 12, 1949, vide copy of death entry, Ex. P-10. Both the learned Courts below have held that Sheo Bai Plaintiff No. 1 is the widow of the said Kanhiya Lal, while Plaintiff No. 2 Anand Parkash is his son and Hem Lata and Shanti, Plaintiffs 3 and 4 respectively and the proforma Defendant No. 2 Sumitra were his daughters. Mutation Ex P 8 was also sanctioned in their favour, as the heirs of Kanhiya Lal, in 1968. (It appears that the mutation was not entered and sanctioned earlier, because these heirs of Kanhiya Lal were residing in Muzaffarnagar.) It has also been held that Sheo Bai did not perform Kareva after the death of Kanhiya Lal These findings were not challenged before me Chander Bhan son of Meena Ram, who is said to have executed the alleged will Ex D-2 was not a co-sharer in the suit land. From the pedigree-table Ex. 29, it appears th"t Chander Bhan son of Meena Ram, was the nearest male collateral of Kanhiya Lal who was alive at the time of latter''s death. According to Nanhi Bai, Chander Bhan inherited the estate of Kanhiya Lal. However, as Kanhiya Lal did not die heirless, his property could not go to the said Chander Bhan. Therefore, even if it is held that the document, Ex. D-2 is a will, Nanhi Bai did not get any interest under the same in the estate of Kanhiya Lal.

Document Ex. D-2 is a sort of gift or agreement executed by Chander Bhan. It bears the thumb-impression of Chander Bhan. Two signatures, one purporting to be of Chander Dutt Sharma and the other of Gulzari as witnesses also appear, below the body writing of this document. However, in the margin a writing has been made in the form of a ''note'' purporting to be on behalf of the executant to the effect that after his death, Nanhi Bai would be the owner of his Dholi land situated in village Khaira. It is on the basis of this ''note'' that the Learned Counsel for the Appellant has urged that this document is a will. I am of the opinion that this document cannot be regarded as a will, because the ''note'', referred to above, is not signed or thumb-marked by Grander Bhan, n"r has it been attested by the witnesses. Section 63 of the Indian Succession Act reads as follows:

Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules:

(a) The testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his presence and by his direction,

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or mere witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some ether person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signatures of such other persons and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." Clause (b) of the section has not been complied with in the present case, while executing the document, Ex. D-2, because the signature or thumb-impression of Chander Bhan do not appear below the ''note", as noticed earlier. Moreover, there is no evidence to the effect that Clause (c) of the above section was complied with in the precast case. Neither Sheo Dutt (DW-2) who is the scribe of Ex D-2. nor Nanhi Bai (D.W.-3)has stated that the witnesses had seen Chander Bhan thumb-marking the document, nor has stated that the witnesses had signed it in the presence of the executant. Moreover, according to Sheo Dult (D.W.-2) only Chander Dutt Sharma had attested the document. Nanhi Bai has. of course, stated that both Chander Dutt Sharma and Guizari had attested the document, but I do not find any ground to discard the statement of the scribe on this paint. Hence, the document Lx. D-2 cannot be held to be a valid will.

Moreover, the document Ex. D-2 has not been properly proved. Section 68 of the Evidence Act lays down that where a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution. Chander Dutt Sharma or Gulzari has not been examined in the witness box. There Is no evidence on the record to show that both of them are dead or are not subject to the prooeis of the Court or are incapable of giving evidence. Therefore, Ex.. D-2 cannot be used in evidence.

For the foregoing reasons, it is held that Nanhi Bai has no interest in the estate of Kanhiya Lal.

Lastly, the Learned Counsel for the Appellant argued that the other co-sharers in the suit land have not been made patties to the suit, therefore, the Plaintiffs are not entitled to claim more than their share This argument has no force. In Ganga Ram and Ors. v. Relu 1, it was remarked:

The case however, seems to me analogous to that of one of several joint owners suing to eject a trespasser and all the joint owners are not necessary parties to such a suit. I, therefore, overrule the preliminary objection " In Mr. Ram Kali v. Pahilwan Singh and Ors. 2, also it was held:

The law is well established that one joint owner out of several can always eject a trespasser and obtain a decree for possession against the trespasser. It is only the joint owner or anyone claiming through the joint owner who can come and resist such claim for such possession." Both the learned Courts below have held that Nanhi Bai was a trespasser on the suit land. Therefore, the Plaintiffs being co-sharers in the suit land, are entitled to obtain a decree for possession of the whole land against her.

For the foregoing reasons, I do not find any force in the present appeal and the same is hereby dismissed with costs.