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ADARSH KUMAR SRIVASTAVA & OTHERS versus SHANKER SARAN @ JANKI & OTHERS

High Court of Judicature at Allahabad

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Adarsh Kumar Srivastava & Others v. Shanker Saran @ Janki & Others - SECOND APPEAL No. - 858 of 2000 [2007] RD-AH 17925 (16 November 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

[Reserved]

Second Appeal No. 858 of 2000

Adarsh Kumar Srivastava and others ...... Plaintiff-Appellants

Vs.

Shankar Saran and others ... Defendant- Respondents

And

Second Appeal No. 793 of 2000

Shanker Sharan and others .....Defendants- Appellants

Vs.

Parmanand and others Plaintiff - Respondents

Hon. Pankaj Mithal,J.

The dispute in the present appeal is about a house between two sisters and their successors.

Station Master Rai Palakdhari Lal and his wife Smt. Chandra Jot Kunwar had two daughters Smt. Champa Devi and Smt. Shiv Kumari. Smt. Champa Devi died sometime in 1941 when her son Shankar Saran was only about 3 years of age. Therefore, Shankar Saran started living with his maternal grand father. Smt. Shiv Kumari was living with her husband at Varanasi. The wife of Rai Palakdhari Lal Smt. Chandra Jot Kunwar died on 12.9.1967 and he himself died sometime after 1970. It is said that Rai Palakdhari Lal executed a will dated 5.2.1970 bequeathing the house in dispute to her daughter Smt. Shiv Kumari. According to Shankar Saran the house in dispute was bequeathed to him by his 'nani' Smt. Chandra Jot Kunwar vide will dated 26.6.1965. On the basis of the said will he sold the house vide sale deed dated 23.11.1979.

On the execution of the sale deed dated 23/27.11.1979 by Shankar Saran, his 'mausi' the plaintiff Smt. Shiv Kumari instituted an original suit No. 2/1980 against him and the purchasers of the house in dispute for declaration that she may be declared owner of the house in dispute and be also put in possession of the same. The said suit was instituted on the basis of the will of Rai Palakdhari Lal dated 5.2.1970 under which the house was bequeathed to her.

The suit was contested by Shankar Saran defendant No.1 on the ground that the plaintiff is not entitle to any relief. The house in dispute was the property of his 'nani' Smt. Chandra Jot Kunwar who had made will dated 26.61965 bequeathing it in his favour and therefore plaintiff had no right, title or interest over the same.

The defendant Nos. 2 to 5 who have purchased the house in dispute from defendant No. 1 Shankar Saran vide sale deed dated 23/27.11.1979 filed their separate written statement supporting the stand of defendant No.1 and contending that they are the bona fide purchasers in good faith of the house in dispute for value and as such their rights over the same are liable to be protected on the analogy of Section 41 of the Transfer of property Act, 1882.

On the basis of the aforesaid pleadings the trial court framed the following issues:-

1- D;k fookfnr edku ds Lokeh okow iyd/kkjh Fks viuk D;k edku izfroknh la[;k&1 dh ukuh us viuh futh /ku ls tehu [kjhn dj cuok;k Fkk \

1- D;k iyd/kkjh okow us okfnuh ds i{k esa fnukad 5-2-70 dks dksbZ ohl;r dh gS ;fn gka rksD;k ,slh olh;r ds vk/kkj ij fookfnr edku esa okfnuh dks dksbZ LoRokf/kdkj izkIr gq, gSa \

3- D;k izfroknh la-1 dh ukuh us fnukad 26-6-65 dks dksbZ olh;r izfroknh ds i{k esa dh gS ;fn gka rks D;k ,slh olh;r ds vk/kkj ij fookfnr edku ds laca/k esa izfroknh la01 dks LoRokf/kdkj izkIr gqvk \

4- D;k fookfnr edku esa okfnuh dk dCtk gS \

5- D;k izfroknh ua0 2 rk 5 ds i{k esa fy[kk x;k fo??; i= nqjfHklaf/k iw.kZ gS \

6- D;k izfroknh ua0 1 edku esa dkfot jgk gS rFkk ;g dCtk fo:) dCts dh izd`fr dk jgk gS ;fn gka rks D;k nkok lajphd`fr ,oa fuoa/ku ds fl)kUr ls okftZr gksxk \

7- D;k nkok vof/k okf/kr gS \

8- D;k izfroknh ua0 2 o 5 us edku dks lnHkkouk ds lkFk mfpr eq[; nsdj [kjhnk gS rFkk D;k os dkfot gS ;fn gka rks izHkko \

9- D;k okfnuh dksbZ vuqrks"k ikus dh vf/kdkfj.kh gS \

10- D;k la'kksf/kr okn i= oknhx.k ;k fdlh oknh ds gLrk{kj ds vHkko esa [kkfjtk gksus ;ksX; gS \

Of the aforesaid issues, issue Nos. 1, 2 and 3 are the most relevant issues which relate to the ownership of the house in dispute and as to upon whom the said house would devolve under the aforesaid two wills. Issue Nos. 5 and 8 pertain to the rights of the defendant Nos. 2 to 5 over the said house and to the extent of protection they are entitled to. The issue No. 4 is about the possession of the house. All other issues are technical and are not very material for deciding the controversy at hand.

The trial court after considering the entire documentary as well as oral evidence in a very elaborate manner while deciding issue Nos. 1, 2 and 3 together concluded that Rai Palakdhari Lal was not the owner of the house in dispute. The house in dispute was owned by his wife Smt. Chandra Jot Kunwar. Therefore he had no right to make any will in respect of the said house. A further finding was also recorded that the will of Rai Palakdhari Lal dated 5.2.1970 had not been proved to be duly executed. Therefore the plaintiff Smt. Shiv Kumari and now her successors get no right over the house in dispute on the basis of the aforesaid will. The trial court also held that the will dated 26.6.1965 has not been properly executed as mandated by section 63 (3) of the Indian Succession Act, 1925 inasmuch as it has not been attested by two persons. Accordingly, defendant No. 1 Shankar Saran gets no right in the house in dispute on the basis of the will dated 26.6.1965. The trial court, however, held that in the absence of testamentary succession the house in dispute on the death of the owner Smt. Chandra Jot Kunwar would devolve upon her husband and her two daughters equally and the share of the husband on his death would again devolve upon the two branches of her daughters equally. Thus the plaintiff Smt. Shiv Kumari and defendant No. 1 Shankar Saran son of the other sister Smt. Champa Devi inherited the said house in equal proportion i.e., half share each. The defendant Nos. 2 to 5 were held to be the bona fide purchasers for value. Accordingly, the trial court partly decreed the suit and declared the plaintiff Smt. Shiv Kumari owner of half of the house and directed the defendants to put her in possession of the half share.

Aggrieved by the judgment, order and decree passed by the trial court, both the plaintiffs and the defendants filed separate appeals being civil appeal No. 40 of 1997 and 33 of 1997. The appeals were dismissed by a common judgment and order of the lower appellate court dated 28.2.2000. Thus both the parties have now preferred these two second appeals being second appeal No. 793 of 2000 and 858 of 2000. The Second Appeal No. 858 of 2000 which has been preferred from the side of the plaintiff has been treated as a leading appeal.

The leading Second Appeal No. 858 of 2000 was admitted as the court was satisfied that it involved substantial questions of law and Second Appeal No. 793 of 2000 was ordered to be connected with it as both the appeals were arising from the same judgments, orders and the decree of the courts below.

The primary point for determination which arises in both these appeals is as to who was the actual owner of the house in dispute i.e., whether the house in dispute was owned by Rai Palakdhari Lal or his wife Smt. Chandra Jot Kunwar.

Heard Sri V.P. Shukla, learned counsel for the appellant in the leading appeal and Sri A.K. Singh for the contesting parties.

The courts below have returned a finding that the house belonged to Smt. Chandra Jot Kunwar and she was the owner thereof. Sri V.P. Shukla, learned counsel for the appellant asserted that the said finding is manifestly erroneous under law as the courts below have not considered that the house was actually the property of Rai Palakdhari Lal and he had purchased the land in the name of his wife and later on constructed the house on it out of his own funds. His wife had no income of her own to have purchased the land and to construct the house over it.

Admittedly, the house in dispute is situate on Araji No. 28/1/2 Gram Echauna Salempur Majhauli. The area occupied by the said house is 7-3/4 decimal. According to the plaint allegations Rai Palakdhari Lal had generated the land of Araji No. 28/1/2 area 23-1/4 decimal in the name of his wife Smt. Chandra Jot Kunwar and had constructed two storey house over it. Therefore from the plaint allegations it is admitted that the land Araji No. 28-1/2 was purchased in the name of Smt. Chandra Jot Kunwar. For the purposes of determining the actual ownership of the said land the only and the most valuable document on record is exhibit-15 (paper No. 54 Ga). This exhibit is entry of the revenue record of 1362 fasali. According to the said entry the aforesaid land is recorded as sirdari land in the name of Smt. Chandra Jot Kunwar. There is no other document to prove ownership and title in respect of the aforesaid land. Therefore, on the basis of the aforesaid revenue entry and the admitted case in the plaint, Smt. Chandra Jot Kunwar can safely be presumed to be the owner of the said land unless the said presumption is rebutted. Although, it has been argued that the aforesaid property was purchased benami in the name of Smt. Chandra Jot Kunwar but neither there appears to be any specific pleading nor any evidence to substantiate that Smt. Chandra Jot Kunwar had no funds of her own to purchase the same or that Rai Palakdhari Lal had invested his personal funds for purchase of the same. None of the witnesses had any personal knowledge in this regard. They were not even aware as to when the land was purchased and into whose name the sale deed was got registered. It is settled legal position that the person who asserts that the property had been purchased by him 'benami' has to prove the same. The plaintiffs having failed to discharge the above burden, the courts below committed no error of law in recording that Smt. Chandra Jot Kunwar was the real owner of the house in dispute. It may not be out of context to clarify that the plaintiff had also failed to prove that the house was constructed by Rai Palakdhari Lal. Therefore, the courts below rightly concluded that since the ownership of the land rests with Smt. Chandra Jot Kunwar, the ownership of the house which is situate over it also goes with it. Therefore, in view of the above the conclusion drawn by the courts below that Smt. Chandra Jot Kunwar was the owner of the house in dispute cannot be faulted with. The said conclusion being purely factual in nature requires no interference in second appeal.

The plaintiff has claimed declaration of the ownership of the said house on the basis of unregistered will dated 5.2.1970 alleged to be executed by Rai Palakdhari Lal. It is said that under the will he had bequeathed the house in dispute to the plaintiff Smt. Shiv Kumari. Once it has been held that Rai Palakdhari Lal was not the owner of the house in dispute, he had no authority under law to make any will in respect of the same. Any such will if made is therefore liable to be ignored as nonest. Moreover, the said will ((13-Ka) has not been proved to be validly executed. PW-1 Parmanand has stated that he was present in the house when the said will was executed and singed by Rai Palakdhari Lal. P.W-4 Umashankar has stated that when the will was executed and it was singed Parmanand was not present. Therefore the statement of aforesaid two witnesses of the plaintiff were found to be in conflict with one another. There was one another contradiction in their statement to the effect that according to PW-4 Umashankar the will was written on a plain paper brought by the Clerk of Vakil Revati Raman whereas PW-1 Parmanand stated that it was scribed on the letter head of Rai Palakdhari Lal. In view of the above contradictions in the statements of the plaintiffs two witnesses no error was committed by the courts below in holding that that said will could not be proved to have been duly executed.

On the other hand, the defendant No. 1 Shankar Saran has asserted to be the owner of the house in dispute on the basis of the unregistered will dated 26.6.1965 alleged to have been executed by Smt. Chandra Jot Kunwar in his favour. The said will has not been attested by any witness. Section 63 (c ) of the India Succession Act, 1925 specifically lays-down that the will shall be attested by two or more witnesses and each of the witness shall sign the will in the presence of the testator. Section 68 of the Indian evidence Act, 1972 requires that if a document is required by law to be attested, it can not be used in evidence unless and until it has been proved by one of the attesting witnesses if any one of the attesting witnesses is alive. It is only if the attesting witnesses are not to be found that the execution may be proved by other evidence. In the present case the will is not said to be attested by any of the witnesses. Therefore, it is not a duly executed will which can be held to be valid will under law.

Thus under the circumstances, the claim of both the parties on the basis of the respective wills falls and the courts below committed no error of law in refusing to recognise the rights of the parties on the basis of the alleged two wills.

The next point that arises for consideration is about succession of the house in dispute owned by Smt. Chandra Jot Kunwar in the absence of both the aforesaid wills. The above point is very simple and would not detain me long. Smt. Chandra Jot Kunwar had been held to be the absolute owner of the house in dispute. She predeceased her husband Rai Palakdhari Lal. According to sections 15 and 16 of the Hindu Succession Act, 1956 a property of a female Hindu shall devolve upon his sons and daughters (including the children of any predeceased son or daughter), and also the husband. Thus on the death of Smt. Chandra Jot Kunwar the house in dispute devolved upon her husband Rai Palakdhari Lal, her daughter Smt. Shiv Kumari(plaintiff) and Shankar Saran son of her predeceased daughter Smt. Champa Devi (defendant No. 1) in equal proportion according to Section 16 of the Hindu Succession Act, 1956. Subsequently on the death of Rai Palakdhari Lal his 1/3rd share would again devolve upon his daughter Shiv Kumari and Shankar Saran, the son of his predeceased daughter, being the clause I heirs mentioned in the schedule-II of Section 8 of the Hindu succession Act. Therefore ultimately share of the plaintiff and the defendant No. 1 in the house in dispute on the death of Smt. Chandra Jot Kunwar and Rai Palakdhari Lal comes to one half each. Accordingly, the courts below have rightly determined that the plaintiff Shiv Kumari and the defendant No. 1 Shankar Saran are both entitled to half share in the house in dispute.

In view of the above discussion the leading second appeal lacks merit and is liable to be dismissed.

This takes me to the cross appeal filed on behalf of the defendants. In the said appeal two points have been urged. First, the plaintiff in the suit had prayed for a declaration of her ownership in respect of the entire house and therefore the courts below had no power to make a declaration in respect of the half share. Secondly, no relief of possession of half portion of the house could have been granted to the plaintiff as the house was not partitioned and no relief for partition was claimed.

A perusal of the plaint shows that the plaintiff had sued for declaration as owner of the house in dispute and for possession. Therefore, the prayer for declaration of the plaintiff's right as owner of the house to whatever extent permissible under law is inherent in the above relief. Moreover, the grant of declaratory relief is discretionary in nature and the court is competent to grant declaration according to the circumstances of the case. The courts below having found that the share of the plaintiff in the house in dispute is only one half, committed no error of jurisdiction in declaring the plaintiff owner of only the half share in the house and in decreeing the suit partly to the above extent.

Once in a suit for declaration of title & possession, the plaintiff succeeds to prove his title over the property he is entitle to possession as a necessary consequence. However, in the instant case the plaintiff has been declared entitled to only half share in the house in dispute as owner. Therefore, she can not be put in possession of the entire house. Her share in the house is only half therefore she is entitle to possession only to that extent. This half share has not been demarcated on partition. The said entitlement for possession over half share therefore, can not be extended to her without the said half share been demarcated which is only possible on partition. The declaration of share of the parties does not entitle them to possession over their respective share unless the same are specified and demarcated. No relief for partition has been claimed in the suit by the plaintiff. Partition is not a natural consequence or a follow up relief of declaration. Therefore, exfacie the courts below exceeded their jurisdiction in directing to grant the plaintiff possession of half share in the house in dispute without partitioning and demarcating the share of each one of them.

In view of the above, the appeal of the plaintiff being second appeal No. 858 of 2000 fails and is dismissed. The appeal of the defendants being second appeal No. 793 of 2000 succeeds in part. The judgment, order and decree of the lower appellate court dated 28.2.2000 passed in Civil Appeal No. 40 of 1997 and Civil Appeal No. 33 of 1997 arising from Original Suit No. 2/1980 is confirmed but is set aside only to the limited extent in so far as it directs for delivery of possession of the half share in the house to the plaintiff or her successors. Accordingly, the judgment, order and the decree of the courts below stands modified to the above extent only.

The parties to bear their own costs.

SKS

Date:16.11.2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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