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29th August, 2011 LATE SHRI HARKISHAN SINGH THRU LR
SHRI GURJEET SINGH & ORS. ...... Appellants
Through: Mr. V.Shrivastava, Adv.
Through: Mr. Inderjeet Swaroop, Adv. for the respondent no.1.
JUDGMENT
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest? VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular Second Appeal is to the impugned judgment dated 13.10.2009 of the Appellate Court, and by which judgment, the Appellate Court dismissed the appeal of the appellants and confirmed the judgment and decree dated 2.5.2006 passed by the Trial Court decreeing the suit for possession with respect to the suit property admeasuring 73 square yards, bearing municipal no. A-547, Shastri Nagar, Sarai Rohilla, Delhi. 2011:DHC:4411
2. The facts of the case are that one Sh. Asa Ram Dua, father of the plaintiff owned a property admeasuring 150 square yards in khasra no.484/17, Village Sidhore Kalan, Dabur Wala, Delhi jointly with his brother Sh. Jiwan Dass. After partition between Sh. Asa Ram Dua and Sh.Jiwan Dass, Sh. Asa Ram Dua became the owner of 73 square yards of the property, i.e. the subject property. Sh.Asa Ram Dua left behind the plaintiff, Ram Prakash Dua as a son. Sh. Asa Ram Dua also had another son, Sh. Sunder Lal Dua and two daughters, Smt. Ram Pyari and Smt. Kamlesh Sachdeva. Sh.Sunder Lal Dua and two daughters Smt. Ram Pyari and Smt. Kamlesh Sachdeva are said to have executed a relinquishment deed dated 17.11.1995 in favour of the plaintiff/respondent no.1.
3. The case which was set up in the plaint was that the plaintiff was the legal heir of Sh.Asa Ram Dua and therefore entitled to possession of the suit property from the original defendant one Sh. Harkishan Singh, who is now represented by his legal heir (namely the appellant no.1) on the ground that late Sh. Harkishan Singh was the brother of Smt.Raj Kaur @ Raj Rani, and Smt. Raj Kaur @ Raj Rani was the wife of one of the son, Sh.Sunder Lal Dua of Sh. Asa Ram Dua. It was alleged that on the death of his sister Smt. Raj Kaur @ Raj Rani, Sh. Harkishan Singh had come into the possession of property and which was being illegally held on. Since ownership in the property was claimed by the respondent no.1/plaintiff on the ground that Sh. Harkishan Singh has no right to the property, the relief of possession was claimed.
4. When the written statement was filed, it transpired that Sh.Harkishan Singh was claiming ownership of the property by virtue of the Will dated 9.9.1983 allegedly executed by Sh. Asa Ram Dua in favour of Smt. Raj Kaur @ Raj Rani (wife of his son Sh. Sunder Lal Dua) and the alleged Will dated 10.6.1995 of Smt. Raj Kaur @ Raj Rani executed in favour of Sh. Harkishan Singh. The defendant, Sh. Harkishan Singh stated that he had already sold the property vide notarized documents being the agreement to sell, power of attorney, etc. dated 4.12.1995 to one Sh. Richpal Singh. It transpires that the property has thereafter changed various hands, though unfortunately none of the counsels for either of the parties could assist the Court or throw any light whether as to such transfers were made before filing of the suit or after filing of the suit. All the subsequent transferees were thereafter impleaded as defendants in the suit because the original defendant Sh. Harkishan Singh had transferred the property to Sh. Richpal Singh who in turn transferred the property to Smt. Archana Batra and by various subsequent documentations, ultimately, the property presently is said to be vested in Smt. Misla Devi and Sh. Ashit Babu Satija, defendants no. 4 and 6.
5. The only issue which arose before the Court below, and which is also an issue which is argued before me is as to whether Sh. Asa Ram Dua has executed his Will dated 9.9.1983 in favour of Smt. Raj Kaur @ Raj Rani wife of Sh. Sunder Lal Dua. If this Will was not a genuine Will, then, Smt. Raj Kaur @ Raj Rani could not have executed her Will dated 10.6.1995 in favour of her brother Sh. Harkishan Singh who would therefore have no right to transfer the property to the subsequent transferees, the other defendants in the suit.
6. The Appellate Court has given cogent and convincing reasons for holding that Will dated 9.9.1983 is not a genuine Will and that the same is shrouded in suspicious circumstances. Paras 11 to 15 of the impugned judgment of the Appellate Court are relevant and read as under:-
7. The aforesaid paragraphs show that late Sh. Asa Ram Dua gave no reason to disinherit his other son/plaintiff and daughters namely Smt. Ram Pyari and Smt. Kamlesh Sachdeva. The Trial Court has rightly observed that merely because one of the relative may be closer than other relatives, is in itself is not a sufficient reason to disinherit the other close relatives, i.e. son and daughters with whom there were no bad relations. The Trial Court has also referred to the short period of time within which the Wills of Sh. Asa Ram Dua and Smt. Raj Kaur @ Raj Rani surfaced after the death of Smt. Raj Kaur @ Raj Rani and the property in question was sold by Sh. Harkishan Singh on 4.12.1995, i.e. within a few months of death of Smt. Raj Kaur @ Raj Rani on 15.8.1995. In addition to the aforesaid facts, I may note that I put a query to counsel for the appellants that if really Smt. Raj Kaur @ Raj Rani had become the owner of the property by virtue of the Will dated 9.9.1983 of Sh. Asa Ram Dua, then why was not the Will propounded (for a huge period of over ten years from 10.1.1984, when Asa Ram Dua is stated to have died, till 15.8.1995 when Smt. Raj Kaur @ Raj Rani is stated to have expired) before any public authority during lifetime of Smt. Raj Kaur @ Raj Rani and why no mutation was applied for on the basis of the Will dated 9..9.1983 in favour of Smt. Raj Kaur @ Raj Rani, however, no answer was forthcoming.
8. The Trial court has also noted that the attesting witness to the Will was one Sh. Gopal Dass who deposed as DW[1] and who deposed that he only had a casual relation with Sh. Asa Ram Dua and in fact Sh. Asa Ram Dua had not called him on 9.9.1985 when the Will was executed. The only meeting of the witness, Sh. Gopal Dass with Sh. Asa Ram Dua was in a kirya about two years before the alleged execution of the Will dated 9.9.1983. Sh. Gopal Dass did not know when Sh. Asa Ram Dua died and nor did he attend his cremation. These facts according to the Trial Court cast a doubt on the validity of the Will. Even in the Will of Smt. Raj Kaur @ Raj Rani dated 10.6.1995, it is not mentioned as to how she had become owner of the property, the object being not to disclose the Will dated 9.9.1983 of Sh.Asa Ram Dua in her favour.
9. Learned counsel for the appellants argued that the Trial Court has wrongly observed the fact that Will is not registered and is not on stamp paper is a suspicious circumstance and also that there is no finding with regard to the lack of genuineness of Will dated 9.9.1983 and thus the impugned judgment is liable to be set aside. Of course, I do agree with this argument that the conclusion of the Appellate Court contained in para 17 of the impugned order of the Will being doubtful because it is not registered or stamped is not correct, however, there are other convincing reasons given by the Appellate Court in paras 11 to 15 of the impugned judgment which have already been reproduced above, and which in my opinion are sufficient grounds to hold lack of genuineness of the Will dated 9.9.1983 allegedly executed by Sh. Asa Ram Dua. It is obvious that the Wills, dated 9.9.1983 of Sh. Asa Ram Dua and 10.6.1995 of Smt. Raj Kaur @ Raj Rani, were fabricated by Sh. Harkishan Singh after the death of his sister Sh. Raj Kaur @ Raj Rani, so as to misappropriate the suit property, and which property he sold within a few months of the death of Smt. Raj Kaur @ Raj Rani.
10. Learned counsel for the appellant additionally argued that the plaintiff/respondent no.1 in his cross-examination admitted that Sh. Harkishan Singh was the owner and therefore on this ground itself it should be held that the suit was liable to fail because of Sh. Harkishan Singh being admitted as the owner, the suit for possession cannot lie. The argument appears to be interesting only at the first blush, inasmuch as, the witness, i.e. plaintiff/respondent no.1 was about 72 years when he deposed, and his cross-examination took place in Hindi which was thereafter translated to English and it is possible that in translation something had been left amiss and possibly the suggestion to which the alleged admission seems to have been given actually was that „After the death of Raj Kaur, Harkishan Singh has claimed to be the owner‟. After all the suit which was being contested to the hilt at every stage, it cannot be said that the respondent no.1/plaintiff had just in one line of the crossexamination sought to concede the complete case of the defendant/appellant. I may also note that out of the 5 appellants in the Appellate Court, only 3 have filed the present appeal and other 2 appellants in the first Appellate Court have been sued in this Court as respondents, who have not filed any appeal against the impugned appellate order dated 13.10.2009.
11. Issues of appreciation of evidence are not issues which can create a substantial question of law for the purpose of Section 100 of the CPC. Before I proceed to entertain a second appeal under Section 100 CPC, a substantial question of law must arise. In every case there are various factors/pros and cons in favour of one party and other factors/pros and cons in favour of other party. After assimilating all the facts, a Civil Court decides the case on balance of probabilities. In my opinion, the balance of probabilities show that the Wills of Sh. Asa Ram Dua dated 9.9.1983 and Smt. Raj Kaur @ Raj Rani dated 10.6.1995 cannot be said to be genuine Wills.
12. In view of the above, no substantial question of law arises. Dismissed.
AUGUST 29, 2011 VALMIKI J. MEHTA, J. ak