High Court of Punjab and HaryanaRSA/2518/1985dismissed

(O&M) Budh Ram And Others v. Kishan Singh &Others

2024-11-12Mr. Justice Vikas Bahl76 pages

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+ "1.

Whether the suit is maintainable in the present form? 2.

Whether the plaintiff has locusstandi to file the present suit and is related to the deceased as alleged? 3.

Whether the deceased Nathu Ram executed any Will in favour of the defendants no.1 to 4 while in sound and disposing

mind?

Whether Nathu Ram deceased executed a valid Will in favour of defendant no.5 while in sound and disposing mind? 5.

Whether Pal Singh son of Hira Singh is a proper party to the suit?

Whether the suit is collusive?

Relief."

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* + "34. Discretion of court as to declaration of status or right.- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no court shall make any such

2 declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee. "

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+ "18th October 1964, According to 6th Kartak Shaka Sammat As per the order of Ld.Magistrate Ist Class, Ambala on 17.10.64 the land under the ownership (Bila Rahan) of Nathu son of Hira r/o Anandpur Mabrah measuring 259KB17M. The government has taken in its possession / custody u/s 145 / Cr.P.C. of Police Station, Sadar, Ambala on which Mahall, Ambala, has been appointed as Receiver.

SD/ In Eng.

Tehsildar 1.

Note: As per application of applicant copy has been prepared.

Copy is correct as per original.

Fee has been received under rule 040.

SD/ In Eng.

Tehsildar 1.3.66"

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* + "3.

The only point argued in this appeal was whether in view of the attachment, the appellants could have in their suit asked for the relief for delivery of possession to them. If they could not, the suit would not be hit by the proviso to Section

42. The parties seem not to dispute that in the case of an attachment under Section 146 of the Code as it stood before its amendment in 1955, a suit for a simple declaration of title without a prayer for delivery of possession is competent. The respondents contend that the position in the case of an attachment under Section 145 of the Code is different, and in such a case the magistrate holds possession for the party who is ultimately found by him to have been in possession when the first order under the section was made. It was said that a suit for declaration of title pending such an attachment is incompetent under the proviso to Section 42 unless recovery of possession is also asked for. It appears that the attachment under Section 145 in the present case is still continuing and no decision has yet been given in the proceedings resulting in the attachment.

In our view, in a suit for declaration of title to property filed when it stands attached under s. 145 of the Code, it is not necessary to ask for the further relief of delivery of possession. The fact if it be so, that in the case of such an attachment, the magistrate holds possession on behalf of the party whom he ultimately finds to have been in possession is, in our opinion, irrelevant. On the question however whether the magistrate actually does so or not, it is unnecessary to express any opinion in the present case.

The authorities clearly show that where the defendant is not in possession and not in a position to deliver possession to the plaintiff it is not necessary for the plaintiff in a suit for

2 a declaration of title to property to claim possession: see Sunder Singh Mallah Singh Sanatan Dharm High School, Trust v. Managing Committee, Sunder SinghBMallah Singh Rajput High School, 65 Ind App 106. Now it is obvious that in the present case, the respondents were not in possession after the attachment and were not in a position to deliver possession to the appellants. The magistrate was in possession, for whomsoever, it does not matter, and he was not of course a party to the suit. It is pertinent to observe that in Humayun Begam v. Nawab Shah Mohammad Khan, AIR 1943 Privy Council 94 it has been held that the further relief contemplated by the proviso to Section 42 of the Specific Relief Act is relief against the defendant only. We may add that in K. Sundaresa lyer v. Sarvajana Sowkiabil Virdhi Nidhi Ltd.

, ILR (1939) Madras 986, it was held that it was not necessary to ask for possession when property was in custodia legis. There is no doubt that property under attachment under Section 145 of the Code is in custodia legis. These cases clearly establish that it was not necessary for the appellants to have asked for possession.

6......The suit for a declaration without a claim for the relief for possession would still be competent in the view taken in the cases earlier referred to, which is, that it is not necessary to ask for the relief of delivery of possession where the defendant is not in possession and is not able to deliver possession, which, it is not disputed, is the case when the property is under attachment under Section 145 of the Code. We think that Dukkan Ram's AIR 1961 Patna 425 case had not been correctly decided. We may add that no other case taking that view was brought to our notice.

For these reasons, we hold that the suit out of which this appeal has arisen was competent. We, therefore, allow the appeal but as the merits of the case had not been gone into by the High Court, the matter must go back to that Court for

2% decision on the merits. The appellant will get the costs here and below."

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* + "17.......There is no bar in the Specific Relief Act, 1963 in granting standalone declaratory decree. The Trial Court came to a positive finding that the original plaintiff was the owner of the suit property. But it held that in absence of declaration of relief of possession by the plaintiff, declaration of title cannot be granted. We have already expressed our disagreement with this line of reasoning. It seems to be a misconstruction of the provisions of Section 34 of the 1963 Act. The Trial Court and the High Court have proceeded on the basis that the expression "further relief" employed in that proviso must include all the reliefs that ought to have been claimed or might have been granted. But in our view, that is not the requirement of the said proviso.....

18.

The High Court has proceeded on the footing that in the subjectsuit, the original plaintiff must have had asked for relief for recovery of possession and not having asked so, they became disentitled to decree for declaration and possession. But as we have already observed, the proviso to Section 63 of the 1963 Act requires making prayers for declaration as well as consequential relief. In this case, if the relief on second count fails on merit, for that reason alone the suit ought not to fail in view of aforesaid prohibition incorporated in Section 34 of the 1963 Act.

19.

.......But as the Trial Court found ownership of the original plaintiff was proved, in our view the original plaintiff was entitled to declaration that he was the absolute owner of the suit property. There is no bar in granting such decree for declaration and such declaration could not be denied on the reasoning that no purpose would be served in giving such declaration. May be such declaratory decree would be nonB executable in the facts of this case, but for that reason alone such declaration cannot be denied to the plaintiff. Affirmative finding has been given by the Trial Court as regards ownership of the original plaintiff over the subject property. That finding has not been negated by the High Court, being the Court of First Appeal. In such circumstances, in our opinion, discretion in granting declaratory decree on ownership cannot be exercised by the Court to deny such relief on the sole ground that the original plaintiff has failed to establish his case on further or consequential relief.

20. In these circumstances, we sustain the judgment of the High Court that the plaintiffs were not entitled to injunctive relief as prayed for and also the rejection of the plaintiffs' plea for introduction of relief for possession. But at the same time, we set aside that part of the judgment by which it has been held that the plaintiffs were disentitled to declaration of ownership of the property. We accordingly hold that the plaintiffs are

2 entitled to declaration that they are owners of the suit property and there shall be a decree to that effect."

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* + "50. Opinion on relationship, when relevant. --When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact: Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860). Illustrations (a) The question is, whether A and B, were married. The fact that they were usually received and treated by

'% their friends as husband and wife, is relevant. (b) The question is, whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant."

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That Shrimati Nandan was the father's sister of the deceased and was married to Tilak Ram of village Rampur Kalan, District Patiala and the plff, his sister Bishni and one brother Chhaju are the children by Smt.Nandan wife of Tilak Ram. Smt. Nandan died on 6991 and whereas Chhaju died issuless. Smt. Bishni was married at village Ambala to Harbans. Both Smt. Bishni and her husband died leaving behind four sons and one daughter. Dila Ram one the sons of Smt. Bishni died issuless while Teja and Dh Ram have also died leaving behind Ajmer and Shera respectively. Prita son and Chinto daughter of Smt. Bishni alive."

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Para No.3 of the plaint is not correct and denied. It is false and frivolous to the knowledge of the plaintiff. The relationship of the plaintiff or other persons stated by him with the deceased, is denied."

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* + "DW11 on SA Budh Ram defendant No.1 as his own witness on S.A. xxx xxx I am not related to Nathu. Nathu used to tell me that his father's sister was at Malikpur, but he did not disclose his name."

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* + "PW11 Jamiayat Singh son of Harnam Singh, years, Zamindari, Manauli on S.A.

I know Kishan Singh of Rampur who is the bother of my wife. My brother Inder Singh was married to the daughter of Kishan Singh's father's sister, Kisshan Singh's mother waw Nandan She belongs to village Jalbera. Her brother was Nanda. Nathu was Nandans brother's son. I met Nathu in Kishan Singh's house and he also visited the marriages and thereto I met himB Nathu addressed as Bhua, and addressed Kishan Singh as his brother. I Joined the marriage of Nachhetro daughter of Kishan Singh, Nathu also attended that marriage. Nathu contributed Rs.35/B in by way of Naunda in her marriage. The entries were made relating to that Naunda. I wrote those entries. I have seen the original bahi in which Ex.P.W.11/1 is the entry relating to this

$ Naunda. Its true transliteration is EX.P.W.11/1/T. xxn:B by counsel for defendants Nos.1 to 4BNil. RO & AC 6/10/66 SSJ"

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* + "PW7 Pritam son of Harbans son of Bhagwan Das, 50 years, Zamindari, of Umrala on S. A.

I know the plff: He is my real maternal uncle. My mother was Bishni and she was the real sister of Kishan Singh plaintiff. Kishan Singh's mother was Nandan and was my maternal grand mother. She belonged to Jalbera, Nandan was the daughter of Hira. Again said I do not know her father's name. Hira was the father of Nathu, Nathu was her brother's son. Nathu generally came to Nandan on the occasions of marriage and other also used to stay with her for month at a stretch. Nathu addressed Nandan as his Bhua (Aunti) Xxn: by counsel for defets No.5: I have not seen Hira. I attended the marriage of Nathu in village Jalbera. I do not know in which Village Nathu was married. Nathu was married about 30 years back.

Xxn:B by counsel for defdt Nos.1 to 4. Nil RO&AC 4/8/66 SSJ"

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Jiwa Singh son of Bhagwana, 50 years, Zamindari resident of Alipur on S.A.

I know Kishan Singh. He is my sister's husband. My sister was married to him about 40 or 45 years ago. The plff's mother was Mst. Nandan. She belonged to Nandpur Jaiver. She was the daughter of Hait Ram. Nandan had a brother Hira. Hira's son was Nathu who died about 3 years ago. Nathu left behind no other relation except the plaintiff. Kishan Singh has two sons and 3 daughter alive whereas the 4th daughter of Kishan Singh died. His two sons and two daughters are married. Nathu had been visiting the plaintiff. Nathu addressed Nandan as his Bhua (Anti) and addressed Kishan Singh as Bai. Nathu attended the marriage of Kishan Singh's sons and daughters and gave Naunda in those marriages. Nathu left beind land, which was in the cultivation possession of the tenants. I am also a Mukhtar of the plaintiff. When Kishan Singh filed the suit the land had been auctioned by the Tehsildar to the members of the committee of village Jalvera. Naurata was the Sarpanch and Bachna is a panch of that committee. At that time the tenants were cultivating the land...........

xxn: by Sh. Ram Sarup Counsel for defdt Nos.1 to 4. I had gone to Nathu 5 or 6 months before he died. I had come to enquire about the prices of Sugar Cane crusher at ambala city and after making enquiries went to stay with him for the night. ....."

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Bakhshi son of Chhajju, 65 years, Zamindari, resident of village Jalbera, on S.A.

I knew Nathu of my village. His father's name was Hera. Nathu died about two years ago. Hera had a sister whose name was Nandan. Hera and Nanda's father was Hait Ram. Nandan was married at village Rampur to one Tilak Ram. I know the plaintiff Kishan Singh. He is the son of Mst. Nandan. Kishan Singh along with Nandan used to visit our village and stay with Nathu. He used to address Nathu as Bhai. Nathu used to address Nandan as Bhuha. The land in dispute is being occupied by the Govt. and was leased out by them during the last harvest."

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"XXXn by Shri B.B. Gupta, counsel for defdt. No.5. Nathu died of Asthama. He remained ill for about 12 months before his death. He was unconscious for about 10 or 12 days before his death. His tenant Puran used to take him in tonga to the Doctor for the treatment during this period of 10 or 12 days when he was unconscious. I went to inquire of the health of Nathu about 3 days before his death." 16 C! !

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Allah Dia son of Attru, 65 years, Green Seller of Rampur on S.A.

I know Kishan Singh of V. Rampur. Kishan Singh's mother was Nandan. I have seen her. She belonged to village Jalbera. I know Bishana of village Jalbera who was her brother. Kishan Singh had a daughter Chhatroo/Batroo. She was married. Nathu attended her marriage from her maternal side. Nathu was the brother's son of Nandan. Neonda was taken on the occasion of the marriage of the daughter of

Kishan Singh. Nathu gave Neonda Rs.35/B or 36/B. Kishan Singh's son Khushal Singh was married about 8 or 9 years ago. Nathu attended this marriage also on behalf of the maternal side. Neonda was taken on this marriage also. Nathu gave Neonda at Rs.20 or Rs.21/B. Whenever Nathu visited our village he stayed with Kishan Singh Lambardar and addressed Nandan as Bhuha." 72 <

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Kartara son of Kalli Ram, 70 years, R/o Jalwehra, Zamindari, on S.A.

I knew Nathu son of Hira of my village. He died about 1 3⁄4 years ago. Hira had a sister named Nandan. Hait Ram was the father of Hira and Nandan. My parents used to tell me that Hira was the son of Hait Ram and Nandan was the daughter of Hait Ram. Nandan was married at village Rampur with Tilak Ram. Nandan died about 30 or 35 years back. The plaintiff is the son of Tilak Ram and Nandan. Kishan Singh and Nandan used to visit our village at the house of Nathu. Nathu used to address Nandan as his (Bhuha). I also used to address her as Bhua.

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* + AThe house of Nathu is about one furlong from my house. Nathu was of about my age. Nandan was older than Nathu by 20 years."

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+ "xxx xxx xxx We may in this connection refer to one of our own decisions, Sitaji v. Bijendra Narain Choudhary wherein the following observations were made:

" A member of the family can speak in the witnessbox of what he has been told and what he has learned about his own ancestors, provided what he says is an expression of his own independent opinion (even though it is based on hearsay derived from deceased, not living, persons) and is not merely repetition of the hearsay opinion of others, and provided the opinion is expressed by conduct. His sources of information and the time at which he acquired the knowledge (for example, whether before the dispute or not) would affect its weight but not its admissibility. This is therefore legally admissible evidence which,

% if believed, is legally sufficient to support the finding". It is true that Dharanidhar Misra was not directly related to the family of Lokenath. He was, however, distantly related to Haripriya. He was a friend of Lokenath Parichha and lived in the same neighbourhood. His evidence showed that he knew him and the members of his family quite well. That being the position, his evidence that he attended the marriage ceremonies and the Upanayan ceremonies of several members of the family undoubtedly showed his opinion as expressed by his conduct. xxx xxx xxx"

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+* + "C.G. Suri, J.

An important question of law that keeps arising in a large number of cases and which has also arisen in this second' appeal is whether, in cases where it becomes necessary to prove the relationship of one person to another, a witness appearing in Court can make a statement to prove the conduct of another having special means of knowledge about the disputed relationship when that conduct expresses the opinion of that person about the relationship. Is it necessary that the statement of the witness is to be confined only to his own conduct as expressive of his own opinion with regard to the existence of the disputed relationship ?

xxx xxx xxx H. R. Sodhi, J.

(15) The following two questions of law have been referred to Full Bench by my brother Suri, J : - (1) Is it necessary that the statement of a witness is to be confined only to his own conduct as expressive of his own opinion with regard to the existence of the disputed relationship ?

(2) Whether in cases where it becomes necessary to prove the relationship of one person to another, a witness appearing in Court can make a statement to prove the conduct of another having special means of knowledge about the disputed relationship when that conduct expresses the opinion of that person about the relationship ?

Xxx xxx xxx ORDER OF THE FULL BENCH

(54) In accordance with the unanimous decision, the second question, as framed by Sodhi J., and the first part of the question, as framed by Suri J., are answered in the affirmative. In accordance with the opinion of the majority, the answer to the first question, as, framed by Sodhi J., and the second part of the question as framed by Suri J., are answered in the negative."

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+* + "In any event whether the appellant is proved to be the son of Lachhman Singh, or not is a pure finding of fact. Sitting in second appeal, it is not open to me to reverse a concurrent finding of fact, especially when there is a some evidence in support of such a finding."

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Dr. Satpal Soni, Regd: Medical Practitioner Ambala City on S.A.

......Xxn: by counsel for the plaintiff.

The parties to the will all of sudden dropped in my clinic and there was no time or place fixed previously. My consulting room is about 2 yards from my sitting place. When they came to me, Budh Ram told me that Nathy was to be given some medicine and also wanted to executed a Will. I directed them to go inside my consulting and write out the Will."

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* + "Xxn" by the plaintiff's counsel: When we starts from Anandpur Jalbera, Courts falls in the way if one goes to Dr. Soni's clinic. I did not know Bodh Parkash earlier. I do not know the distance of Bodh Parkash's house from the shop of Dr. Satpal. No rough Will

%4 was written. The scribe went on writing what was stated by Nathu. Nathu was illiterate. Nathu died at the age of 70 or 80 years. Nathu died from the 4th day of the making of the Will. I do not know Kishan Singh. It is wrong to suggest that the land of Nathu was cultivated by the tenants. On the date when the Will was executed, I did not suggest that the same be got registered befor the Sub Registrar. I cannot tell as to how many persons thumb marked and how many signed." ....

....

Xxn: by counsel for defendant no.5: I was present at the time of the execution of the Will. Nathy deceased told the name of his father as also of his grand father to the petitioner writer Bodh Parkash.

Bodh Parkash accordingly wrote those very names in the Will. My father died when I was about 10 years of age. I do not know whether any meals were served to the brahmin or the brotherhood. Nathu brought us from Jalbera to Ambala in tongas. The name of that Tongawalas I do not know. Ram Gopal, myself, Ram Kishan, Ram Partap, Bakhshi Ram, Ram Chand, accompanied Nathu deceased. Ajmer also was with us. All the aforesaid persons except Nathu are alive. Nathu told us in the village that he wanted to execute a Will in their favour. We all reached at the shop of Sadhu Ram in Anaj Mandi Ambala City. Thereafter we went to the shop of Dr.Satpal. Previous to the occasion I never accompanied Nathu deceased to the shop of Dr. Satpal." . *! !

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* + "D.W.6 on S.A.

Dr. Satpal Soni Regd. Medical Practitioner Ambala City on S.A."

xxx xxx xxx Ex.D1 was executed in my consulting room. I reached that room after the will had scribed. I did not see any rough draft of the Will. I did not know the name of the petitioner writer who had scribed the will. Nathy had come to me for taking medicine as usual, because he was an asthmatic patient."

xxx xxx xxx In between my consulting and sitting room there is a door. Persons sitting in my consulting room are not visible from outside. I do no remember whether. I administered the medicine to Nathu before or after the execution of the Will.

xxx xxx xxx Nathu had got my attestation on the Will lest a question may arise later that he was not in proper senses at the time of the making of the Will and I attested the Will as a Medical expert. I did not think it proper to write on the will that Nathy was in proper senses to make the will.

xxx xxx xxx I do not know the meaning of the word 'Miker'. I did not

4$ follow what is written in the said Will nor did I make any effort to know it is contents. I do not remember if any other person present there asked the petitioner to explain the contents of the Will i.e. the meaning of the words contained in the Will. I did not issue a certificate of medical fitness to Nathu or Budh Ram." . # *!+ !

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* + "Nathu was ill with asthma for about 2 or 3 months before his death. He was an old man of 76 years of age and rather spent up.

xxx xxx xxx He died 8 days after the execution of Ex.D1. I did not know any relation of Nathu."

4 >>> >>> >>> I did not see Nathu's father. I do not know where Nathu was married.

>>> >>> >>> The scribe was called by Nathu. In fact all of us including the scribe had reached the shop of Dr. Satpal together."

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