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SMT. GURMAIL KAUR versus SMT. JASWANT KAUR & ORS

High Court of Punjab and Haryana, Chandigarh

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Smt. Gurmail Kaur v. Smt. Jaswant Kaur & Ors - RSA-783-1989 [2007] RD-P&H 936 (29 January 2007)

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

1) R.S.A.No.783 of 1989

Date of decision : 22.12.2006

Smt. Gurmail Kaur

.....Appellant

Vs.

Smt. Jaswant Kaur and others

....Respondents

2) R.S.A.No.1130 of 1989

Date of decision : 22.12.2006

Smt. Surinder Kaur

.....Appellant

Vs.

Smt. Jaswant Kaur and others

....Respondents

CORAM : HON'BLE MR.JUSTICE MAHESH GROVER
Present : Mr. R.K.Battas, Advocate

for the appellant (in both the appeals).

Mr. Rajiv Kataria, Advocate

for the respondents (in both the appeals).

...

MAHESH GROVER, J.

This judgment will dispose of Regular Second Appeal no.1130 of 1989 as well.

The plaintiff is in Regular Second Appeal against the judgment of the learned Addl. District Judge, Patiala (hereinafter referred to as the 'first appellate court') dated 31.1.1989 by which the judgment of the learned trial court dated 22.12.1984 was reversed resulting in the dismissal of the suit filed by the plaintiff-appellant.

It would be necessary to advert to the pedigree table depicting the relationship of the parties to the dispute: Gopal

|

Puran

|

...................................................................................... ................

| | |

Bhag Singh Ram Kishan Piara Singh died

| @ Harchand Singh issueless and without | | wife on 23.10.1978

................................ Gurdev Kaur wife | | |

Amarjit Kaur Mukhtiar Kaur Jaswant Kaur daughter wife wife defendant No.1

| |

Surinder Kaur Gurmail Kaur

daughter daughter

defendant No.2 plaintiff

The plaintiff-appellant filed a suit seeking declaration to the effect that she is the joint owner of the suit property being 1/3rd share in the land of Piara Singh whose individual share was 1/3rd in

the entire land measuring 467 Bighas 5 Biswas situated in village Dhanaura. It was prayed that the plaintiff-appellant was also entitled to possession of the suit property.

Piara Singh whose estate is in dispute was recorded to be the owner in possession of 1/3rd

share of the agricultural land

measuring 467 Bighas 5 Biswas which was a joint khewat with the plaintiff-appellant and respondents No.1 Smt. Jaswant Kaur and respondent No.5 Smt. Surinder Kaur (who is appellant in RSA No.1130 of 1989). The land was stated to be ancestral as it was inherited by Piara Singh from his father. Piara Singh was a bachelor and died issueless and was a lunatic from his childhood. Being of unsound mind he was incapable of managing his affairs and was mentally incapable of giving any statement or executing any document. The fact of his being of unsound mind was established in the court proceedings in which Ram Kishan alias Harcharan Singh, father of respondent No.1, was also a party. In the proceedings of the court on 13.5.1964 this fact was duly recorded. Besides, in case No.5 of 23.4.1976 under the provisions of Lunacy Act the Additional District Judge, Patiala after putting detailed questions to Piara Singh held him to be lunatic and incapable of understanding anything vide his order dated 5.6.1978.

It was pleaded that the plaintiff-appellant and respondent No.5 Surinder Kaur (appellant in RSA No.1130 of 1989) being the daughters of Bhag Singh and respondent No.1 being the daughter of Ram Kishan were entitled to succeed in equal shares to the land of Piara Singh and accordingly they were entitled to a decree for joint possession of the 1/3rd

share each of Piara Singh who died issueless.

Smt. Jaswant Kaur, respondent No.1 filed Civil Suit No.585 of 17.10.1973 in the Court of Sub Judge Ist Class, Nabha against Piara Singh and obtained a collusive decree dated 12.4.1974. It was alleged therein that she was owner in possession of 1/3rd share of his total

agricultural land measuring 66 Bighas 2 Biswas which now forms a part of the suit land. In the said suit Piara Singh admitted the claim of respondent No.1 Jaswant Kaur even though he was of unsound mind and incapable of understanding import of such a statement. On the basis of the said decree the land was transferred to respondent No.1. It was pleaded that the decree aforesaid had been obtained by fraud and the same is not binding and is liable to be set aside. The aforesaid decree came to light when the mutation was sanctioned in favour of respondent No.1 by the Asstt. Collector Ist Grade vide his orders dated 30.7.1976. Jaswant Kaur also claimed to be in possession of a Will dated 9.4.1976 in her favour executed by Piara Singh. The said Will was also challenged on the ground that Piara Singh was incapable of executing any document much less a Will as he was of insane mind. The whole exercise undertaken by respondent No.1 in the shape of a collusive decree and Will was in order to usurp the land of Piara Singh.

The pleadings aforesaid by the appellant in her suit were contested by respondent No.1 Jaswant Kaur and respondents No.2 to 4 (arrayed as defendants No.3 to 5 in the suit). The respondents pleaded that Piara Singh had died a natural death being a heart patient. Piara Singh had voluntarily given 66 Bighas 2 Biswas of land out of his holdings to respondent No.1 under a family settlement out of natural love and affection and the civil court had duly recognized the ownership rights of respondent No.1 by passing the decree on the basis of consent. The mutation sanctioned pursuant to the decree was challenged by the plaintiff-appellant but the same was not accepted by the courts. On account of service rendered to Piara Singh he had executed a valid Will on 9.4.1976 in favour of respondents No.2 to 4 who are sons of respondent No.1 and on the basis of this they were in possession of the land. The fact of Piara Singh being of unsound mind or a lunatic was denied. It was also denied that Piara Singh had 1/3rd share in the suit land at the time of his death. The character of land being ancestral was also denied.

On the pleadings of the parties, the following issues were framed by the learned trial court:

1. Whether the plaintiff is the successor of Piara Singh?OPP

2. Whether Piara Singh died on 23.10.1978 and was killed by defendant No.1 as alleged?OPP

3. Whether Piara Singh deceased was owner of the 1/3rd share of the suit property?OPP

4. Whether Piara Singh was lunatic from his childhood?OPP

5. Whether the plaintiff is entitled for the joint possession of 1/3rd

share of the suit land?OPP

6. Whether the decree in suit No.585 of 17.10.1973 by Sub Judge Ist Class, Nabha, decided on 12.4.1974 is not binding on the plaintiff and is liable to be set aside as alleged?OPP

7. Whether the suit is not maintainable?OPD

8. Whether the suit is bad for non-joinder of necessary parties?OPD

9. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD

10.Whether the plaintiff is entitled to challenge the judgment and decree in favour of the defendant No.1?OPP

11.Whether the plaintiff has no locus standi to file this suit?OPD

12.Whether the plaintiff is estopped by her act and conduct from filing the suit?OPD

13.Whether the defendants are entitled to special costs?OPD

14.Whether the amended plaint is beyond the scope of the order of the court allowing amendment of the plaint?OPD

15.Whether the suit is within time?OPP

15-A.Whether Piara Singh deceased executed a valid will in favour of defendants No.3 to 5?OPD 15-B.Whether the suit is barred U/S 11 CPC, O 2 R2 CPC?OPD

15-C.Whether the land in suit is ancestral qua the plaintiff and Piara Singh?OPP

15-D.Whether Piara Singh deceased had given 66B 2 Biswas of land out of his holding to defendant No.1 under a family settlement out of natural love and affection and later on her rights of ownership was recognized by the Civil Court?OPD

16. Relief. After appraisal of the evidence the learned trial court decreed the suit of the appellant vide its judgment dated 22.12.1984.

While doing so, the learned trial court under issue No.4, which pertained to Piara Singh being a lunatic or not, held that Piara Singh was a lunatic from his childhood. The collusive decree was held to be a result of fraud and the finding was recorded that there was no family arrangement on the basis of which the decree could have been passed.

The Will as set up by the respondent No.1 was also not found to be genuine.

In appeal against the said judgment by the respondents, the first appellate court reversed the findings of the trial court vide its judgment dated 31.1.1989 and held that Piara Singh was not a lunatic and all his actions, including the suffering of a collusive decree and the execution of Will were valid.

The aforesaid judgment of the first appellate court has been assailed by the appellant by way of the present appeal.

Mr. R.K.Battas, learned counsel for the appellant contended that there was overwhelming evidence to show that Piara Singh was a lunatic and was of unsound mind and incapable of executing any document. The decree dated 12.4.1974 obtained by respondent No.1 was a result of fraud and deception and the Will as set up is also shrouded under suspicious circumstances and in any eventuality Piara Singh being of unsound mind could not have executed the Will. To substantiate his arguments he referred extensively to the evidence on record which was perused painstakingly during the course of arguments.

According to the learned counsel for the appellant, the following questions of law arose in the present appeal for this Court to answer:

i) Whether reasons given by the first appellate court upholding the Will in question are flimsy in itself ?

ii)Whether the interpretation of Will is a substantial question of law or not?

iii)If the findings of subordinate courts on facts are contrary to evidence on record are therefore perverse, then whether the High Court can justifiably set aside such findings? iv)If the findings of the courts below are contrary to evidence on record and perverse whether such findings can be set aside in a Regular Second Appeal or not?

In support of his contentions he relied upon Major Singh v. Rattan Singh (dead) by LRs. and others (1997) 3 Supreme Court Cases 546, Bondar Singh and others v. Nihal Singh and others (2003) 4 Supreme Court Cases 161, Punjab Urban Development Authority and others v. Dashmesh Educational Society(Regd.) and others 2005(3) RCR (Civil) 245, Madhusudan Das v. Smt.

Narayanibai (deceased) by LRs and others (1983) 1 Supreme Court Cases 35 and Smt. Giano v. Puran and others 2006(1) P.L.R.46.

The contentions of the learned counsel for the appellant were sought to be repelled by Mr. Rajiv Kataria, learned counsel for the respondents, who contended that both, the Will and the collusive decree were voluntary acts and in the absence of ay conclusive evidence to establish the state of mind of the executor of the afore- mentioned documents, the finding of fact recorded by the first appellate court could not be interfered with in a regular second appeal.

I have heard the learned counsel for the parties at great length and have also perused the record.

The foremost question that is to be decided is as to whether Piara Singh, whose estate is in question, was of unsound mind and incapable of understanding the import of his actions in executing the Will and suffering a decree in favour of respondent No.1 the affect of which was the alienation of his property which he had inherited from his father.

Section 3(5) of the Indian Lunacy Act, 1912 defines the 'lunatic' to mean an idiot or person of unsound mind. In the Chambers Dictionary (Deluxe Edition) the word 'idiot' has been said to mean 'a person afflicted with the severest degree of intellectual subnormality; a foolish or unwise person. The word 'unsound' has been given to mean as unhealthy, injured or damaged, not firm or solid; ill-founded unreliable. The word 'lunacy' has been given to mean as insanity generally, a madman or madwoman.

A perusal of the record reveals that in 1964, (much before the passing of the collusive decree dated 12.4.1974) in proceedings before the SDO (Civil), Nabha, Piara Singh was sought to be summoned as a witness. Ex.P10 is the report of the Process Server dated 6.5.1964 describing Piara Singh as a lunatic and of unsound mind. Ex.P11 is the copy of the order of the SDO(Civil), Nabha giving up Piara Singh as a witness on the basis of the report of the Process Server. Even though the aforesaid proceedings could not in themselves be said to be a conclusive evidence of Piara Singh being of unsound mind or a lunatic but they are certainly suggestive of the unsettled state of mind of Piara Singh much prior to the passing of the decree in the year 1974. Subsequently, in the year 1976 a petition under Section 62/67 of the Indian Lunacy Act was filed by the plaintiff-appellant before the Addl. District Judge, Patiala who had the chance to observe the demeanor of Piara Singh and recorded his statement on 2.2.1978. Some of the questions put to Piara Singh are as below :

"Q.Which day is today?

A. Today is the turn of city.

Q. Who is Nambardar of your village?

A.His name is Tara Singh.

Q.Whether you own a tractor?

A.I do have a tractor, but I neither know its registration number nor its make.

Q. How many Chowkidars are there?

A. Barru Chamar. Two Chowkidars. 7 Chowkidars. 18 Chowkidars are there.

Q.How many Panches are there in your Panchayat? A.There are four hundred Panches and one Sarpanch.

Q.How many days are there in a month?

A. I do not know. There are 700 days. 800 (eight hundred) days in a month.

Q. How many sons Tara Singh Namberdar has? A. He has 1200 (twelve hundred) sons.

Q.How many daughters Tara Singh have?

A.He has 1900 (nineteen hundred) daughters.

Q.To whom you cast your vote during previous elections? A.I had cast my vote to the Muslim of Peshawar.

Q.How many buffaloes are there in your village of red colour?

A.There are six buffaloes of red colour and eight of blue colour in our village.

Q.How many girls in the village wear turban? A.Five girls wear turbans.

Q. How many boys were murdered in your village during last month?

A.Five hundred children were murdered out of which three children were of Nambardar.

Q.How many goats were born to the buffalo of your neighbour?

A.One buffalo gave birth to four goats and another gave birth to five goats.

Note: The witness has gone out of the court who does not know the meaning of solemn affirmation." During the proceedings aforesaid, the Court of Addl. District Judge vide its order dated 5.6.1978 ordered the examination of Piara Singh and observed as under:

".........I recorded the statement of Shri Piara Singh to ascertain about his being of sound or unsound mind by putting him question, and as is revealed from the replies given by to the various questions, he is unable to count even upto ten, and cannot distinguish man and women, the time, and did not seem to be capable of understanding what was going on around him.

Consequently, I direct an inquisition, to be held regarding his mental condition. He shall be medically examined by the Superintendent, Mental Hospital, Amritsar at the expense of the applicant and report of the aforesaid Medical Superintendent shall be called for 25.7.1978."

It was also directed that he be examined by a panel of doctors from Amritsar. Before Piara Singh could be examined by the doctors he died depriving the court of the benefit of a medical opinion as to the state of mind of the deceased.

Even in the proceedings, which had been initiated before the Asstt. Collector IInd Grade, challenging the sanctioning of mutation, Piara Singh was never produced before the Court and as noticed above even in the proceedings under the Indian Lunacy Act he was not produced before the Court thereafter. Finally, he died on 23.10.1978 soon after recording of his statement by the court. All these indicate a deliberate attempt to shield him from the scrutiny of the court. Cumulatively the aforestated circumstances are clearly suggestive of the fact that Piara Singh was not of a sound mind and may even be termed as an idiot even though it cannot be conclusively held that he was a lunatic within the meaning as contemplated under the Indian Lunacy Act in the absence of any medical evidence. It has also been mentioned in the order dated 9.10.1978 passed by Asstt.

Collector Ist Grade, Nabha that Piara Singh was a Sidhra, which again points towards the fact of his being of a less than intelligent person. The fact of his being of unsound mind finds mention in 1964 when his estate was not in question. The process of alienation in favour of respondent No.1 started in 1974. The trial court had recorded this finding of fact based on the aforesaid evidence. It is a well settled proposition of law that the analysis of the oral evidence and the conclusion drawn thereon by the trial court should ordinarily be accepted as the trial court had the privilege of watching and observing the demeanor of the witness.

In Santosh Hazari v. Purushottam Tiwari, 2001(3) RCR(Civil) 243(SC) it has been observed as follows: "22. It is well proposition of law that the analysis of the oral evidence and conclusion drawn thereon by the trial Court should ordinarily be accepted by the lower appellate Court. The rationale for the aforementioned principle appears to be that the trial Court enjoys the privilege of watching and observing demeanour of witness. A number of unsaid things weigh in the mind of the trial Court at the time of examining oral evidence. These principles have been laid down by the Supreme Court in the case of numerous judgments including the case of Madhu Sudan Das (supra). It has also been observed that although the appellate Court has jurisdiction to reverse or affirm the findings of the trial Court, yet it must reflect its conscious application of mind and record its own findings supported by reasons on all issues arising along with the contentions put forth."

The first appellate court, therefore, had misdirected itself by ignoring these pieces of evidence to come to a conclusion that Piara Singh was not of unsound mind. The appellate court has relied upon the testimony of one Dr.S.K.Kundra DW whose evidence was uninspiring as he was a doctor who maintained no record.

The next question that is to be determined is as to whether the decree obtained by respondent No.1 was sustainable in the eyes of law or not? In view of the finding that Piara Singh was not of a sound mind much of the sheen is taken away from the decree.

Besides, a perusal of the plaint filed by respondent No.1 in Civil Suit No585 of 17.10.1973, from which disputed decree was born, reveals that the respondent No.1 had stated herself to be the owner in possession of the property. Piara Singh had filed a written statement admitting the same. No details have been given in the plaint as to how respondent No.1 came to be the owner in possession of the property of Piara Singh. Neither any family settlement nor any gift was pleaded therein. It is only in the present suit that as a defence of the aforesaid decree a family settlement has been pleaded. The fact of Piara Singh being of an unsettled mind coupled with the pleadings referred to above are suggestive of the fraud practised by the respondent No.1 to usurp the property of Piara Singh who being of unsound mind was obviously vulnerable to such deceit.

As a result the decree is declared to be null and void, a result of fraud and not binding on the rights of the parties.

The next question which is to be determined is as to whether the Will dated 9.4.1976 was a valid Will and free from blemish or not? The obvious question is whether a person of unsound mind can exercise his free volition and the answer can only be an emphatic no. A will is an expression flowing from a voluntary state of mind by which a person bequeaths his assets to the person he desires to succeed in the event of his death. Voluntary deposition is therefore the essence of such a testament. A person of unsettled mind incapable of understanding the consequences of execution of such documents which have the effect of bartering away the rights of an individual cannot be bound such executions. A perusal of Will Ex.D4 will reveals that it is an unregistered Will attested at least by five witnesses out of which DW11 Nirmal Dass and DW10 Amar Singh scribe were examined in support of the Will. The Will does not disclose any reason as to why the other natural heirs are excluded from the list of beneficiaries. There is no citation as to what has prompted the testator to execute the Will as he was neither old nor was he having any ailment. The language of the Will reveals a professional hand even though DW10 Amar Singh is not a regular scribe and is said to be a Dak Runner of Punjab State Electricity Board. He has admitted in his testimony that he had never written a Will earlier and had brought one white paper from his house for scribing the Will and the same was drafted at the house of the beneficiary where all the five witnesses were already present.

Respondent No.1 was also stated to be present in the house. DW11 Nirmal Dass also testified that he had no dealing with Piara Singh and he does not belong to the village. There is also some inter-spacing in the Will. All these afore-mentioned facts render the Will a piece of a suspicious document. In any eventuality once it is held that Piara Singh was not of a sound disposing mind and incapable of understanding the essence of the documents, all actions undertaken by him would be void and a nullity in the eyes of law and even if Piara Singh was not a lunatic, he was certainly of an unsound mind.

The Hon'ble Supreme Court in Major Singh's case (supra) has held as under :

"When the courts below had rejected and disbelieved the evidence on the ground that the propounder had not properly discharged his duty, it is the duty of the High Court to consider whether the reasons given by the courts below were sustainable in law. In view of the above reasoning of the trial court as affirmed by the appellate court, necessarily the High Court required to go into that question to test the reasons. In this perspective, the High Court has rightly gone into that question and found that the reasons given by the courts below are flimsy. Thus there is substantial question of law that has arisen for consideration and the High Court has rightly considered the question."

The court is not powerless to examine the totality of the circumstances especially when there is sufficient material to show the suspicious nature of transaction in order to do substantial justice between the parties. The Court cannot shut its eyes to perverse findings of fact if they are arrived at by ignoring evidence on record.

The Hon'ble Supreme Court in Bondar Singh's case (supra) held as under :

"An appeal under Section 100 CPC can be

entertained by the High Court only on a substantial question of law. If the findings of the subordinate courts on facts are contrary to the evidence on record and are perverse, such findings can be set aside by the High Court in appeal under Section 100 CPC. A High Court cannot shut its eyes to perverse findings of the courts below. In the present case the findings of fact arrived at by the lower appellate court were contrary to the evidence on record and, therefore, perverse and the High Court was fully justified in setting aside the same resulting in the appeal being allowed and suit being decreed."

For the aforesaid reasons, there is thus no hesitation to hold that the findings of the first appellate court were perverse resulting in miscarriage of justice.

An attempt was made by the learned counsel for the respondents to say that there was no challenge to the decree as in the relief clause there is no specific prayer. A perusal of the plaint reveals that in para 9 it has been pleaded that the decree is a result of fraud and in para 10 the challenge has been made to the Will as well.

The pleadings even though inarticulate and not artistically drafted have to be examined in their totality to appreciate the controversy. They are like building blocks which define the contours of the case. The pleadings are not to be construed in such a hypertechnical manner, but what is to be seen is whether the allegations gave sufficient notice to the contesting parties of what case is to be met by them. The Court is not precluded from examining the contents of the plaint to see for itself the true nature of the dispute.

Merely because the prayer clause does not contain the desirous language should not be enough to defeat the cause which the plaint espouses. Besides, in the instant case the plaintiff-appellant has prayed for a decree of declaration and possession to which he can be held entitled to only after declaring the collusive decree and the Will null and void and not binding upon the rights of the appellant.

That apart throughout the proceedings the respondents have participated and led evidence on all the crucial aspects of the plaint. Once challenge has been laid specifically to the documents referred to above in the plaint in a detailed manner, the logical consequences have to follow. Mere absence of the words in the prayer clause would not defuse the controversy. The contention of the learned counsel for the respondents, therefore, is not tenable.

The questions of law stand answered as above.

For the foregoing reasons, the appeals are allowed and as a result the judgment of the appellate court dated 31.1.1989 is set aside and the plaintiff-appellants are held entitled to a decree of declaration in terms of the judgment and decree of the trial court.

Since both the Will and the collusive decree which had resulted in the alienation of the property of Piara Singh have been set aside, his share would devolve upon the successors in equal shares.

Accordingly, Jaswant Kaur would be entitled to share of the property while the other half would be succeeded to by the appellants i.e. Surinder Kaur and Gurmail Kaur. Each of them would therefore get each.

22.12.2006 (MAHESH GROVER)

JUDGE

dss


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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