Laxmi Narain vs Gulab Chand

J.V. Gupta, J.—This is Defendant''s second appeal against whom the suit for declaration and possession has been decreed by both the Courts below.

It is the estate of one Ganga Sahai which is in dispute. The Plaintiff-Respondent Gulab Chand claimed himself to be the son of Parma Nand from his wife Sukh Devi. Parma Nand was alleged to have been adopted by Ganga Sahai. During his life time, Ganga Sahai executed the will dated November 27, 1937, Exhbit P-1. He died oh June 29, 1940. The said will was executed by him in favour of his wife Badamo. After her death, the property was to go Sukh Devi the wife of his adopted son Parma Nand. However, the said adopted son (Parma Nand) was excluded from inheritance According to the will, Exhibit P-1, after Sukh Devi who was given the life estate, only the estate was to go to the male child of Sukh Devi on attaining majority. The Plaintiff on the basis of the will, Exhibit P-1, filed the present suit on January 2, 1969, against Laxmi Narain, the adopted son of Smt. Attri Devi, widow of Muni Lal who was in possession of the suit property since long being a co-sharer. Badamo also died on 1st December, 1945. After her death, the property was mutated in favour of Attri Devi widow of Muni Lal. The sanctioning of the said mutation was contested by Sukh Devi wife of Parma Nand and the mother of the Plaintiff. She also got a probate on the strength of the will, Exhibit P-1, on 4th September, 1948. On the basis of the will and the probate, the mutation of the said land was sanctioned in favour of Sukh Devi. Then she sought the partition of the suit property where the question of title was raised. Thus, Sukh Devi was obliged to file a civil suit on December 30, 1953 against Attri Devi widow of Muni Lal. The suit was filed for a declaration to the effect that she was the owner of the suit property in view of the entries in the revenue record in her favour. Sukh Devi failed in that suit upto the High Court. The judgment of the High Court dated December 19, 1958, is, Exhibit P-39. Meanwhile Attri Devi widow of Muni Lal died on March, 15, 1958. On her death, Mutation was sanctioned in favour of Laxmi Narain, the Defendant-Appellant. As stated earlier, the Plaintiff filed the present suit on January 2, 1969, on the basis of the will, Exhibit P-1, alleging that he having attained majority was entitled to the suit property. The suit was contested inter alia on the ground that the will, Exhibit P-1, was not validly executed and was not in accordance with the laws of the Jind State at that time. The will was also pleaded to be invalid in view of the provisions of Section 114 of the Indian Succession Act, 1925, (hereinafter called the Act). A plea was taken that the suit was barred by the principles of res judicata because the Plaintiff''s mother Sukh Devi had already failed in her suit for declaration upto the High Court. The locus standi of the Plaintiff was also challenged to file the present suit during the life time of Sukh Devi. It is the common case of the parties that Sukh Devi is still alive. The Defendant also claimed adverse possession. It was denied that the Plaintiff was the son of Sukh Devi because according to the Defendant, Parma Nand had two wives Sukh Devi and Ratni. The Plaintiff, according to the Defendant, was born from the womb of Rami and not from the womb of Sukh Devi. On the pleadings of the parties as many as 26 issues were framed. On the material issues, the trial Court found that the will, Exhibit P-1, was validly executed though no attesting witness was produced as none was alive at that time, but the father of the Plaintiff, Parma Nand, who is said to be present at the time of the execution of the will, came into the witness-box and proved the will. It was also found that the Plaintiff was coming to the Court on the basis of the will, Exhibit P-1 and, had, thus, an independent right to file the suit. He did not claim through his mother Sukh Devi and, therefore, any suit filed by Sukh Devi was of no consequence and the judgment therein did not operate as res judicata against the Plaintiff. Similarly, even if Sukh Devi was alive, the Plaintiff had the locus standi to file the suit because he was coming to the Court on the basis of the will, Exhibit P-1 as he had attained the majority and was, thus entitled to succeed to the estate of Ganga Sahai. The other pleas of the Defendant were also negatived. Consequently, the Plaintiff''s suit was decreed. In appeal, four points were argued on behalf of the Defendants-Appellants, as given in paragraph ten of the judgment of the lower appellate Court. It was found by it that it was proved that the Plaintiff was born on March 26, 1949, and, thus, the suit brought by him was not barred by limitation The trial Court had also found that the Plaintiff had proved that he was born to Sukh Devi wife of Parma Nand. According to the lower appellate Court, will in favour of an unborn person could be made validly. The objection that the will was not executed on the stamp paper of Rs. 5/-under the law of the ertwhile Jind State was also negatived on the ground that the probate had already been obtained by Sukh Devi. In view of these findings, the decree of the trial Court passed in favour of the Plaintiff was maintained. Dissatisfied with the same, the Defendant has come up in second appeal to this Court.

The learned Counsel for the Appellant contended that the Plaintiff could not be allowed to take any benefit of the probate obtained by his mother Sukh Devi because she had herself failed to get the declaration of her ownership upto the High Court on its basis. According to the learned Counsel, the will, Exhibit P-1, was not executed on the stamp-paper of Rs. 5/-as required by the laws of the erstwhile Jind State and, therefore, the will, Exhibit P-1, was invalid. Moreover, the will was produced for the first time in the suit which was filed on January 2, 1969. The will was never produced in any suit or proceedings earlier to which the Defendant was a party. In regard to the non-validity of the will, Exhibit P-1, the learned Counsel relied upon Kalu v. Jamil Ahmed Jind High Court Rulings 113. The learned Counsel also contended that in view of the provisions of Section 114 of the Act, the will, Exhibit P-1, in favour of the Plaintiff was invalid as no such will could be made in favour of a person who was not alive at the time of the execution of the will. An argument was also raised that the suit was barred by the principles of resjudicata because Sukh Devi, the mother of the Plaintiff had already failed up to the High Court in her suit for declaration and ownership. According to the learned Counsel, the Plaintiff had no locus standi to file the present suit in the presence of his mother Sukh Devi. It was also contended that vide, Exhibit D-15, dated January 27, 1944, Parma Nand, the father of the Plaintiff succeeded to the estate of his natural father Dean Dayal wherein he had pleaded that he was not the validly adopted son of Ganga Sahai. Thus, argued the learned Counsel, if Parma Nand was not the adopted son of Ganga Sahai, then he was not entitled to succeed to his estate being the son of Parma Nand. The validity of the will was also challenged on the ground that no attesting witness thereto was produced and that Parma Nand was never present at the time of the execution of the will as it did not bear his signature. If he had been present there at that time his presence would have been shown therein. According to the learned Counsel, the Plaintiff also failed to prove that he was the son of Sukh Devi as no cogent evidence was produced on the record to prove this fact inasmuch as the Plaintiff did not produce even his mother Sukh Devi in support of his claim. The Courts below relied upon the statement of Parma Nand the father of the Plaintiff who was an interested witness. Thus, argued the learned Counsel, the findings of the Courts below are wrong, illegal and against the evidence on the record. The Plaintiff is not entitled to succeed to the property of Ganga Sahai under the will, Exhibit P-1, as claimed.

After hearing the learned Counsel for the parties and going through the relevant evidence on the record, I am of the view that the whole approach of the Courts below is wrong, illegal and misconceived.

Admittedly, Sukh Devi, filed the suit for declaration of her ownership on the basis of the entries in the revenue record which were based on the basis of the probate obtained by her, but she failed in her said suit upto the High Court. In that situation, the Plaintiff cannot take benefit of the probate obtained by his mother Sukh Devi. He is to prove the will, Exhibit P-1, independently of the probate in the presence of the Defendant. The said will was not executed on a stamp-paper of Rs. 5 - as required under the laws of the erstwhile Jind, State. This was a mandatory provision. Any will executed otherwise was not valid. The judgment of the Jind High Court in Kalu''s case (supra), is fully applicable to the facts of the present case. Once it is so found, then the Plaintiff was not entitled to claim any right under the will, Exhibit P-1. The view of the Courts below that since there was a probate obtained by Sukh Devi on the basis of the will, and, therefore, the Plaintiff could take benefit of the same, was wrong. According to the Plaintiff himself, he was claiming an independent right under the will and not through his mother Sukh Devi. If he is claiming an independent right under the will, then he has to prove the will independently and could not take benefit of the probate, if any, obtained by his mother Sukh Devi. Besides, she had already failed to produce the said probate and, thus, her suit for declaration of ownership was dismissed upto the High Court. Thus, the will, Exhibit P-1, could not be said to have been validly executed according to the laws of the erstwhile Jind State.

Apart from the above, the will, Exhibit P-1, has not been duly proved by the Plaintiff. The presence of Parma Nand, the father of the Plaintiff, is nowhere recorded in the will. The mere fact that it is recited therein that a sum of Rs. 1,500/- was given to Parma Nand did not prove that Parma Nand was present at the time of the execution of the will. Parma Nand being an interested person because the Plaintiff is his son could not be relied upon unless his presence could be proved at the time of the execution of the will, Exhibit P-1, otherwise by cogent evidence, he is also not a trustworthy witness because he was though adopted by Ganga Sahai yet he claimed the property of his natural father by filing the suit which was decreed on January 27, 1944, Exhibit D-15.

It is quite strange that Sukh Devi who is alive was never produced in evidence to prove the birth of the Plaintiff from her womb. Admittedly, the Plaintiff will succeed to the estate of Ganga Sahai on the basis of the will, Exhibit P-1, if he was born from the womb of Sukh Devi. As mentioned earlier, the best evidence has been withheld by the Plaintiff. It was all the more necessary because Parma Nand had another wife, named, Ratni also. If the Plaintiff was born to Ratni though the son of Parma Nand, he would not succeed to the estate of Ganga Sahai under the will. Thus, in view of all the facts and circumstances of the case, the evidence of Sukh Devi was most relevant to prove that the Plaintiff was her own son, which the Plaintiff has failed to produce. No birth certificate was produced either. Under the circumstances, on the evidence on the record, it could not be held that the Plaintiff is the son of Sukh Devi. In view of these findings, the other contentions, raised on behalf of the Defendant-Appellant need not be gone into.

As a result of the above discussion, this appeal succeeds and is allowed. The judgments and decrees of the Courts below are set aside and the Plaintiff''s suit is dismissed with costs.