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Judgment
T.P. Sharma, J.—This second appeal u/s 100 of the Code of Civil Procedure, 1908 (for short `the Code'') is directed against the judgment & decree dated 2-9-99 passed by the 2nd Additional District Judge, Bilaspur in Civil Appeal No. 44- A/98 affirming the judgment & decree dated 28-8-97 passed by the 4th Civil Judge Class-I, Bilaspur in Civil Suit No. 340- A/92, whereby learned Civil Judge Class-I has decreed the suit for declaration of partition deed as nominal, declaration of ownership of the property and permanent injunction in favour of the plaintiffs/respondents.
The present second appeal has been admitted for consideration on the following substantial questions of law:
(i) Whether the registered partition-deed dated 28-8-1969 Ex.P-10 could be treated as a sham document created for the purpose of avoiding law of urban ceiling which came into force in the year 1976?
(ii) Whether the Court below failed to see that the clear and unequivocal intention expressed by Dr. Ramcharan Rai in the aforesaid document would bring out the partition and it is not always necessary that the property should be divided by metes and bounds?
(iii) Whether merely because the execution of the Will dated 7-5-1986 (Annexure P-9) was proved the Court could not have accepted it as such without there be any proof regarding the fact that it was the last Will and Testament of the Testator and that it was executed without undue influence or fraud?
The appellants have filed an application for framing additional substantial questions of law and after hearing on the said application it has been directed by this Court vide order dated 26-3-2009 that the application shall be heard at the time of final hearing of the appeal.
Brief facts leading to filing of this appeal, as pleaded by the parties, are that husband of appellant No. 1 namely Dr. Mahesh Kumar Rai, respondent No. 1 & respondent No. 5 are sons of deceased Dr. Ramacharan Rai, the original owner of the suit property situated at Bilaspur. Respondents No. 2 to 4 herein are wife & sons of respondent No. 1. Deceased Dr. Ramacharan Rai had purchased Nazul land Plot No. 2, Sheet No. 29 situated at Masanganj, Bilaspur on 20-9-1934 from one Rampal through registered sale deed. Bungalow & out house were constructed upon the said land in the year 1936. Deceased Dr. Ramacharan Rai also purchased Maurusi land on 21- 11-1952 along with Saheb Ram & Sohabat Ram. Respondent No. 1 is the eldest son of deceased Dr. Ramacharan Rai. The property purchased by Dr. Ramacharan Rai was his self- acquired property. Dr. Ramacharan Rai was interested to give the bungalow, out house & land to respondent No. 1 and he got the name of respondent No. 1 mutated in municipal records in the year 1959-60. He also transferred 7,000 sq.ft. of land to Dr. Mahesh Kumar Rai (since deceased) & respondent No. 5. He has also spent money for education of deceased Dr. Mahesh Kumar Rai, predecessor of the present appellants. Dr. Ramacharan Rai under apprehension of promulgation of the Urban Land Ceiling Act, executed registered deed in the style of partition deed on 28-8-69 to save the property from the operation of the Urban Land Ceiling Act relating to the disputed land, but the disputed land continued in the name of respondent No. 1. The partition deed was never acted upon and respondents No. 1 to 4 were in possession of the suit land. Again on 27-5-1987 Dr. Ramacharan Rai bequeathed the disputed property to respondents No. 1 to 4. On the basis of the partition deed, Dr. Mahesh Kumar Rai filed an application for mutation and he succeeded in mutating his name vide order dated 31-10-1991 and finally, the order was confirmed by the Additional Commissioner, Bilaspur, vide order dated 22-10- 1992. Thereafter, respondents No. 1 to 4 herein filed the present suit for declaration of partition deed nominal, declaration of title and permanent injunction.
Defendant No. 1/predecessor in interest of the appellants had contested the suit and alleged that the property was partitioned by deceased Dr. Ramacharan Rai amongst his sons. The aforesaid property has been purchased by deceased Dr. Ramacharan Rai out of the income of the ancestral property. The partition deed dated 28-8-69 was not nominal and on the basis of the partition deed possession was handed over to different share holders. Deceased Dr. Mahesh Kumar Rai has constructed house over Khasra No. 663 out of his income. Deceased Dr. Ramacharan Rai has not executed any will voluntarily and in the state of his illness the alleged will deed was executed which is suspicious and void. The plaintiffs have not filed suit for declaration of the alleged partition deed as nominal within three years from the date of execution of the partition deed, therefore, the suit is hopelessly barred by limitation. Name of Dr. Mahesh Kumar Rai, the appellant in first appeal, has been rightly mutated by the revenue officer on the basis of registered partition deed. Respondent No. 5 herein has filed one reply on 17-12- 2002 in which he has pleaded that he has no connection with the present suit and he is not claiming anything.
After affording opportunity of hearing to the parties, learned 4th Civil Judge Class-I, Bilaspur has decreed the suit. Predecessor in interest of the present appellants Dr. Mahesh Kumar Rai has preferred appeal and the same has been dismissed vide judgment & decree impugned.
Learned Counsel for the parties are heard, the judgment & decree impugned and records of the Courts below are perused.
Learned Counsel for the appellants argued that in addition to the substantial questions of law formulated for the decision of this appeal, the question of limitation is also a substantial question of law for the just decision of this appeal. Respondents No. 1 to 4 herein have not challenged the partition deed well within time and the suit for declaration of partition deed is time barred. The Urban Land Ceiling Act came into force in the year 1976, therefore, there cannot be any apprehension in the year 1969 for any future legislation. The property in question was the ancestral property and deceased Dr. Ramacharan Rai alone was not competent to dispose of the property. Arbitrarily, the alleged partition deed was acted upon by the parties. Name of Dr. Mahesh Kumar Rai has been mutated at his instance by the revenue officer. The alleged will is not the genuine document and after execution of the alleged will, certificate of the doctor has been obtained by respondent No. 1 who himself is a doctor. Witness of the will and the Registrar who has registered the will have not been examined by respondents No. 1 to 4 to prove conscious execution of the will. The partition deed is a registered document and oral evidence relating to the said document is excluded under Sections 91 & 92 of the Evidence Act. Respondents No. 1 to 4 herein have not challenged the sale deed dated 19-2-1971 executed by respondent No. 5 in favour of respondent No. 1 relating to the part of disputed land which was necessary for them. Learned Counsel further argued that the appellants have filed an application under Order 41 Rule 27 (1) (aa) & (b) of the Code for admitting additional evidence of one document i.e. renewal of lease deed whereby lease of 5,062 sq.ft. of land situated at Masanganj, Bilaspur has been renewed in favour of deceased Dr. Mahesh Kumar Rai in the year 2006. Learned Counsel also argued that the said document is related to subsequent event relating to the suit property, therefore, it be admitted as additional evidence.
Learned Counsel for the appellants placed reliance in the matter of Mst. Rukhmabai v. Lala Laxminarayan and Ors. in which the Apex Court has held that the right to sue accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Learned Counsel further placed reliance in the matter of Union of India and Ors. v. West Coast Paper Mills Ltd. and Anr. in which it has been held by the Apex Court that the period of limitation in terms of Article 58 of the Limitation Act is to be counted from the date when `the right to sue first accrues''. Learned Counsel also placed reliance in the matter of Ramti Devi (Smt.) v. Union of India in which the Apex Court has held that for cancellation of registered deed the limitation is three years from the date of registration. Learned Counsel relied upon the matter of Punjab State Coop. Milk Prod. Fed. Ltd. and Ors. v. R.P. Soni4 in which the Apex Court has held that question of limitation is substantial question of law. Learned Counsel further relied upon the matter of Joseph Antony Lazarus (Dead) by LRs v. A.J. Francis in which the Apex Court has held that non-mention in the Will about other sons of testatrix while bequeathing the entire property to two sons alone and suspicious circumstances of execution of the Will like old age, indifferent health of testatrix, existence of two different signatures of testatrix on each page of the Will, registration of the Will after one year, non- examination of advocate who had drafted the Will and Sub- Registrar before whom Will was presented for registration makes genuineness of the Will doubtful. Learned Counsel also relied upon the matter of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and Ors. in which it has been held by the Apex Court that execution of Will while the testator was admitted in ICU of hospital and other circumstances make genuineness of execution of the Will suspicious. Learned Counsel placed reliance in the matter of D.S. Lakshmaiah and Anr. v. L. Balasubramanyam and Anr. in which the Apex Court has held that blending of self-acquired property with joint family property is required to be proved by evidence and clear intention to abandon the separate rights in the property must be proved. Learned Counsel further placed reliance in the matter of C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar and Anr. in which the Apex Court has held that father under the Mitakshara law is competent to sell his self-acquired property or gift to one of his own sons to the detriment another and he can make even an unequal distribution amongst his heirs. Learned Counsel also placed reliance in the matter of S. Saktivel (Dead) by LRs v. M. Venugopal Pillai and Ors. in which it has been held by the Apex Court that modification by oral contract against the written document is excluded in terms of Section 92 of the Evidence Act. Learned Counsel relied upon the matter of Ishwar Dass Jain (Dead) Through LRs v. Sohan Lal (Dead) by LRs in which the Apex Court has held that oral evidence is admissible u/s 92(1) of the Evidence Act to prove that the document, though executed, was not intended to be acted upon and that it was a sham document, executed only as a collateral security. Learned Counsel further relied upon the matter of Ramlal and Anr. v. Phagua and Ors. in which the Apex Court has held that concurrent erroneous findings of fact may be interfered in second appeal. Learned Counsel also relied upon the matters of Phool Pata and Anr. v. Vishwanath Singh and Ors. & Bant Singh and Anr. v. Niranjan Singh (Dead) by LRs and Anr. in which the Apex Court has held that interference with findings of fact is permissible in second appeal. Learned Counsel placed reliance in the matter of Ushabai and Ors. v. Balakrishna Biharilal and Ors. in which the Apex Court has held that the High Court may frame additional substantial questions of law arise in the matter.
Respondent No. 5 has not appeared before the Court after service of summons.
On the other hand, learned Senior Advocate appearing on behalf of respondents No. 1 to 4 vehemently opposed the appeal and argued that the land in question was self-acquired property of deceased Dr. Ramacharan Rai, predecessor in title for the parties. Late Dr. Ramacharan Rai was Minister and was having knowledge of the fact that the Urban Land Ceiling Act may be promulgated any time in the undivided State of Madhya Pradesh. The Urban Land Ceiling Act came into force in the year 1976 in different parts of the country, but the said Act has not come into force in the Bilaspur District and before coming into force of the said Act, different States were having their Acts relating to the Urban Land Ceiling prior to 1976, therefore, with a view to save the property from the operation of the Urban Land Ceiling Act, deceased Dr. Ramacharan Rai has executed nominal partition deed with an understanding that it will not be acted upon between the parties and prior to execution of the sale deed, the property was transferred to respondents No. 1 to 4 herein to whom he was intending to transfer. Dr. Ramacharan Rai had made necessary arrangements for all his sons including deceased Dr. Mahesh Kumar Rai for whom Dr. Ramacharan Rai has spent money for his better education and sent him to the United States of America for further studies. The cost of education was borne by deceased Dr. Ramacharan Rai. Again, in the year 1987, to avoid any future complication, deceased Dr. Ramacharan Rai has executed a will in favour of respondents No. 1 to 4 herein. In the light of the alleged partition deed executed for saving the property from any disturbances at his instance, respondent No. 5 herein has executed a sale deed of the land shown in his favour, in favour of respondent No. 1 vide Ex.D-14. Deceased Dr. Ramacharan Rai has also directed Dr. Mahesh Kumar Rai to execute a gift deed in favour of respondent No. 2 relating to the property which has been shown in the share of deceased Mahesh Kumar Rai and the draft Ex.P- 13 was sent to Dr. Mahesh Kumar Rai along with old stamp paper of Ex.P-12, but deceased Dr. Mahesh Kumar Rai has written some lines upon the stamp paper Ex.P-12 and returned the same along with the draft Ex.P-13 in an envelope Ex.P-14 to respondent No. 1. The property was self-acquired property of deceased Dr. Ramacharan Rai and he alone was competent to transfer or dispose of the property in any manner. He has transferred the property to respondents No. 1 to 4. The alleged partition deed was not intended to be acted upon and it has been never acted upon. The partition deed was a nominal document with intent to save the property from the effect of the Urban Land Ceiling Act. Deceased Dr. Mahesh Kumar Rai, predecessor in interest of the appellants herein, had also not acted in furtherance of the above partition deed. His statement clearly shows that even in view of the aforesaid partition deed he did not came into possession of the share allotted to him. The alleged share allotted to deceased Dr. Mahesh Kumar Rai continued with respondents No. 1 to 4 herein whose names have been recorded prior to execution of the partition deed. The will was executed by deceased Dr. Ramacharan Rai voluntarily. When the name was finally mutated in favour of deceased Dr. Mahesh Kumar Rai, cause of action arose for filing of the suit and the present suit has been filed within three years from the date of said cause of action. The suit is within limitation and no additional substantial question of law arose for the just decision of the case, even the substantial questions of law formulated for the decision of this appeal are not the substantial questions of law for decision of this appeal and the appeal be dismissed in terms of Section 100(5) of the Code.
Learned Senior Advocate for respondents No. 1 to 4 placing reliance in the matter of Union of India and Ors. v. Valluri Basavaiah Chowdhary and Ors. in which it has been mentioned that on 8-4-1972 the Andhra Pradesh Legislative Assembly has resolved to regulate the urban lands, argued that prior to coming into force of the Urban Land Ceiling Act in the year 1976 some States have already enacted or resolved for enactment of the law to regulate the urban lands, therefore, apprehension or fear in the mind of Dr. Ramacharan Rai, who was a politician & Minister knowing about the resolutions and legislations of different States, was reasonable. Learned Senior Advocate further placed reliance in the matter of Satya Gupta (Smt) alias Madhu Gupta v. Brijesh Kumar16 in which the Apex Court has held that where findings of fact of the lower appellate court are based on evidence, High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on ground that another view was possible. Learned Senior Advocate also placed reliance in the matter of Veerayee Ammal v. Seeni Ammal in which it has been held by the Apex Court that concurrent findings of fact could not be disturbed in second appeal. Learned Senior Advocate relied upon the matter of Hiraji Tolaji Bagwan (since deceased by L.R.''s) v. Shakuntala in which it has been held by the Apex Court that the question not necessary for disposal of the appeal is not the substantial question of law. Learned Senior Advocate further relied upon the matter of Sadasivam v. K. Doraisamy in which the Apex Court has held that sale deed kept in the custody of the plaintiff alleging that the sale deed was sham and was not acted upon, and it was an invalid document being executed without any consideration on an understanding between the parties that it would not be acted upon, is a sham document.
Three substantial questions of law have been formulated for the decision of this appeal. Learned Counsel for the appellants vehemently argued that additional substantial questions of law would be required the decision of this appeal. He further argued that the question of limitation is substantial question of law for the just decision of this second appeal. Learned Counsel also argued that whether after purchasing the share of younger brother Dr. Upendra Kumar Rai the respondent has right to challenge the registered partition deed Ex.P-10, is also the substantial question of law.
Both the parties have led evidence before the trial Court. The present suit has been filed by respondents No. 1 to 4 herein after final decision of the mutation proceeding within three years from the date of final order. Defence of original defendant No. 1, predecessor in title of the present appellants, was based on the document of partition Ex.P-10 executed between the parties on 28-8-69 in which certain portion is shown to be allotted to different brothers including the share of deceased Dr. Mahesh Kumar Rai. After execution of the said deed of partition, deceased Dr. Mahesh Kumar Rai has filed application for mutation of his name before the revenue authority and final order of mutation of his name has been passed vide order dated 22-10-92. Deceased Dr. Mahesh Kumar Rai has not filed any application for mutation before 1990 and the present suit has been filed on 2- 11-92 within one month of passing of the final order of mutation.
As held by the Apex Court in West Coast''s case (supra), limitation in terms of Article 58 of the Limitation Act accrues from the date when `the right to sue first accrues''.
If this principle is considered, deceased Dr. Mahesh Kumar Rai has filed application/objection in the mutation proceeding in the year 1990, the suit was within limitation.
But learned Counsel for the appellants argued that the suit relating to registered document is required to be filed within three years from the date of its execution. Deed of partition was executed in the year 1969, therefore, after three years of the said execution of the deed of partition Ex.P-10 any suit on the basis of partition deed is time barred. The suit was not based on partition deed, but it was specifically for declaration that the alleged deed of partition dated 28-8-69 is sham, nominal and fictitious and was never intended to be brought into effect, and indeed it was never brought into effect, therefore, no right or title passed to any person by the said sale deed. The suit was not based on the partition deed, but it was for declaration of the alleged deed as sham, nominal and fictitious not to be acted upon. For declaration of the aforementioned character, no suit is necessary unless rights of the parties have been attacked by the opposite party on the basis of the alleged deed. When deceased Dr. Mahesh Kumar Rai has objected/filed application for mutation relying upon the partition deed, the suit has been filed by the plaintiffs within three years from the date of alleged final order of the mutation proceeding.
While dealing with the question of limitation, the Apex Court in the matter of Mst. Rukhmabai (supra) has held that right to sue accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff. While dealing with the same question, the Apex Court in West Coast''s case (supra) has held that limitation is to be counted from the date when `the right to sue first accrues''. In the matter of Ramti Devi (supra), the Apex Court has held that limitation for cancellation of registered deed is three years from the date of registration.
In the present suit, partition deed was not under challenge and when the mutation application was filed and decided in favour of deceased Dr. Mahesh Kumar Rai, the suit was filed. In the present case, as held by the Apex Court in the matter of Mst. Rukhmabai (supra) when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff, the plaintiff has filed the suit. Facts and circumstances of the case of Ramti Devi (supra) are distinguishable to that of the present case.
In the present case, first cause of action accrued on the date of filing of the mutation application or objection, therefore, the suit filed on behalf of the plaintiffs is within limitation. Both the Courts below have arrived at a concurrent finding, therefore, I do not find any substantial issue on the question of limitation.
As regards the relief relating to another document i.e. the sale deed dated 19-2-71 Ex.D-14 executed by Dr. Upendra Kumar Rai, respondent No. 5 herein, in favour of Dr. Kaushal Kumar Rai, respondent No. 1 herein, is concerned, both the parties have led evidence before the trial Court. Dr. Upendra Kumar Rai was party before the trial Court, but he had not filed any detailed written statement, however, he has filed his reply/written statement before the trial Court in which it has been specifically admitted that he is not claiming any right or he is not connected in any way with the case. Reply filed by Dr. Upendra Kumar Rai reads as follows:
mi;qZDr lanHkZ esa eq>s lwfpr djuk gS fd bl ekeys esa eq>s dqN ysuk nsuk ugha gS vkSj u esjk dksbZ nkok gSA
Dr. Upendra Kumar Rai has not examined himself. Dr. Mahesh Kumar Rai has also not examined Dr. Upendra Kumar Rai. In para 29 of the cross-examination of Dr. Kaushal Kumar Rai (PW-3), plaintiff No. 1/respondent No. 1 herein, he has admitted the execution of sale deed by Dr. Upendra Kumar Rai on 19-2-71 and stated that he has not paid any consideration to Dr. Upendra Kumar Rai, but it has been mentioned in the sale deed that they have mutually received Rs. 3,000/-. Dr. Upendra Kumar Rai has specifically filed his reply that he is having no claim and he is not in any way connected with the case. Respondent No. 1 herein who is party to the said document has specifically deposed that no consideration was passed. Para 28 of his evidence reveals that that document was not intended to be acted upon.
As held by the Apex Court in the case of Sadasivam (supra), if some additional document was intended to be acted upon and no consideration has been passed, it may presumed that the document was nominal and sham.
In absence of contrary evidence or fact, the alleged sale deed was sham, nominal and has not been acted upon by any party, therefore, any relief relating to such document was not required to any party. In the circumstances, the question relating such document is not the substantial question of law for decision of this case.
Consequently, I.A. No. 2/2009 filed on behalf of the appellants is dismissed.
This case is substantially based on the question of intention of executor of the partition deed dated 28-8-69 and the subsequent supporting document of will dated 7-5-87 for execution of the document. Evidence adduced on behalf of the parties are sufficient to draw inference that the subject matter of the partition deed dated 28-8-69 was not the ancestral property of deceased Dr. Ramacharan Rai, but it was the self-acquired property of deceased Dr. Ramacharan Rai.
In the matter of Niranjan (supra), the will was found suspicious on the ground that the testator was admitted in ICU of hospital and the alleged will was executed. In the present case, the testator of the will was not suffering from any disease or he was not under treatment, even he died after more than three years of the execution of such will. Facts of the case of Niranjan (supra) are distinguishable to that of the present case.
As held by the Apex Court in the matter of C.N. Arunachala (supra), a father under the Mitakshara law is not only competent to sell his self-acquired property to a stranger without the concurrence of his sons but he can make a gift of such property to one of his own sons to the detriment of another and he can make even an unequal distribution amongst his heirs. The self-acquired property of a person is his independent property and he has uncontrolled power to dispose of the property in any manner to any person.
Dr. Ramacharan Rai was competent to distribute his self- acquired property amongst his heirs equally or unequally. The alleged partition deed Ex.P-10 has been executed on 28-8- 69 and other document in the form of will deed Ex.P-19 has been executed by the same person viz., Dr. Ramacharan Rai on 7-5-87 in which it has been specifically mentioned that under apprehension of the Urban Land Ceiling Act, he has executed the registered deed of partition which was not intended to be acted upon. The document dated 28-8-69, the alleged partition deed, was sham, nominal, fictitious and without intention to have any right, title or interest either upon himself or to any of the three sons and in order to give a colour of genuineness to the document, mutation was also affected. Relevant paras of the will Ex.P-19 read as follows:
In and about the year 1976 it was apprehended that the Urban Ceiling Act may be enforced in the town of Bilaspur as a consequence whereof it was further apprehended that some part of the aforesaid land may be lost to me.
I was therefore advised to execute a registered deed of partition showing that the above stated piece of land together with the structures standing thereon is joint family property belonging to myself, my wife and my three sons. Accordingly I executed a sham, nominal and fictitious deed of partition dated 29-8-1969 dividing the said property between myself, my wife and my three sons without any intention to convey any right, title or interest either to my wife or to any of my three sons by that document. In order to give a colour of genuineness to the document, mutation was also affected.
The plaintiffs and their witnesses have specifically deposed that the partition deed was nominal and not executed with intention that it should be acted upon and really it has not been acted upon by the parties, even by defendant deceased Dr. Mahesh Kumar Rai. Subsequently, in support of the claim of the plaintiffs, the will deed was executed.
Dr. Kaushal Kumar Rai (PW-3) has deposed that prior to execution of the said partition deed, the properties were mutated in his name in the year 1959-60 vide Ex.P-3 and he has also paid rent continuously vide Exs.P-5, P-6, P-8 & P-9 in the year 1972-73. Plaintiff No. 1 Dr. Kaushal Kumar Rai has also deposed that in order to avoid any dispute, his father Dr. Ramacharan Rai directed Dr. Mahesh Kumar Rai to execute a gift deed relating his alleged share received in partition and Ex.P-13 was sent to Dr. Mahesh Kumar Rai along with stamp paper Ex.P-12 purchased in the year 1960 in an envelope Ex.P-14. Dr. Mahesh Kumar Rai has written few lines on the said stamp paper, but has returned the stamp & draft without executing any deed of gift. Genuine execution of the will deed has also been stated by plaintiff No. 1 Dr. Kaushal Kumar Rai.
Jagdish Kumar Shrivastava (PW-4), the Advocate who has drafted the will, has supported the preparation of draft. Mr. Purshottam (PW-5), Advocate, has deposed conscious execution of will by the executor.
The alleged will deed has been executed by Dr. Ramacharan Rai on 7-5-87 and it was registered on 23-6-87 within one month. One affidavit Ex.P-15 has also been executed by Dr. Ramacharan Rai on 23-8-87 in which Revenue Case No. 91-A/6/86-87 pending before the Nazul Officer has been mentioned. Dr. Ramacharan Rai died after 1991 i.e. after 3-4 years of the execution of the said deed.
Dr. Mahesh Kumar Rai has examined himself and has deposed in para 3 of his evidence that the partition deed was acted upon and parties to the document entered into possession, but since he was serving in Government service, he requested his father & mother to manage his share. In para 5 of his deposition he has deposed that in the year 1986- 87 when he was posted at Bilaspur, his father directed him that he is not in a position to manage his share, therefore, he should manage his share. He has also deposed that respondent No. 1 directed him to execute a gift deed according to the draft Ex.P-13 and put the date of 1971, after consideration, he returned the same. He has specifically admitted in para 9 of his evidence that after execution of the partition deed, party has not challenged the partition deed, but Dr. Upendra Kumar Rai has executed sale deed in favour of respondent No. 1 on 19-2-71 relating to his share. The Urban Land Ceiling Act has not come into force in Bilaspur city. He has admitted the execution of family arrangement document Ex.P-32 by his father. In para 16 of his evidence, he has further admitted that four shops were constructed on the said land, but he does not know the names of the tenants, even he has not asked the tenants that what amount they are paying and to whom. He has specifically admitted in para 30 of his evidence that in case if the stamp given to him for execution of gift deed was of the year 1987 he would have executed the gift deed in favour of respondent No. 1, but he has not executed any deed on the stamp purchased in the year 1961 in the name of wife of respondent No. 1 herein namely, Smt. Rekha Rai.
Entire evidence of deceased Dr. Mahesh Kumar Rai, predecessor in title of the present appellants, reveals that the deed of partition dated 28-8-69 has never been acted upon between the parties and he has not received any rent of his share. Per contra, respondent No. 1 has directed him to execute gift deed relating to his share in the stamp purchased in the year 1961 which has been returned and if the stamp given to him would have been of the year 1987, then he would have executed the deed in favour of Dr. Kaushal Kumar Rai. This shows that he has not executed gift deed of the share allotted to him in the partition deed only on the ground that the alleged stamp was purchased in the year 1961 and not in the year 1987, but not on the ground that he does not want to gift the property to respondent No. 1. It confirms the claim of the plaintiffs that the alleged partition deed was nominal, sham and not executed with intent to be acted upon by the parties. Virtually, the party has not acted upon the partition deed. Subsequently, the will deed has been executed by deceased Dr. Ramacharan Rai much before his death. The will was drafted by one Advocate and its execution was attested by another Advocate who has admitted conscious execution of the will. Dr. Mahesh Kumar Rai has alleged in his written statement that the will is suspicious.
As held by the Apex Court in the matter of Joseph Antony (supra), on the ground of late registration of will, non- production of the person who has drafted the will, the Registrar before whom it was presented for registration and difference in signatures, the will was found to be suspicious.
But in the present case, the aforesaid circumstances do not exist. Conscious execution of the will has been proved by the responsible witnesses viz., Jagdish Kumar Shrivastava (PW-4) - the Advocate who has drafted the will & Mr. Purshottam (PW-5) - Advocate. Both the Courts below have arrived at a finding that the alleged partition deed was executed with intention that it should not be acted upon. The will deed executed by Dr. Ramacharan Rai was not suspicious, inter alia, same was genuine. At the stage of second appeal, if some substantial question of law is required to be framed, then the High Court may frame substantial question of law. As held by the Apex Court in the matter of Ramlal (supra), concurrent erroneous findings of fact may be interfered in second appeal. While dealing with the extent of interference in second appeal, relating to findings of fact, the Apex Court in the matter of Bant Singh (supra) has held that interference with findings of fact is permissible in second appeal. But, erroneous concurrent findings of facts may be re-appreciated to decide the dispute between the parties by the High Court.
In the matter of Ishwar Dass (supra), the Apex Court has held that oral evidence is admissible to prove the intention of the document. While dealing with same question the Apex Court in the matter of S. Saktivel (supra) has held that modification by oral contract against the written document is excluded in terms of Section 92 of the Evidence Act. In the present case, the parties have led evidence to prove the intention of the document and that is not excluded u/s 92 of the Evidence Act.
According to the case of respondents No. 1 to 4 herein, nominal partition deed was executed by Dr. Ramacharan Rai to save open land from the effect of the Urban Land Ceiling Act which ultimately came into force in the year 1976, but Bilaspur city was not effected by the said Act. In Valluri''s case (supra) it has been mentioned that on 8-4-1972 the Andhra Pradesh Legislative Assembly had resolved to regulate the urban lands and other States had also resolved for regulation of the urban lands. Dr. Ramacharan Rai who was Minister was having knowledge that the undivided State of Madhya Pradesh may be affected by the regulation or the Act. Apprehension of Dr. Ramacharan Rai had some weight. As held in the matter of Satya Gupta (supra), High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on ground that another view was possible. The High Court is not justified in substituting its own view. While dealing with the extent of interference in second appeal, the Apex Court in the matter of Veerayee (supra) has held that concurrent findings of fact could not be disturbed in second appeal. Scope of interference in second appeal is not unfettered, findings of the Court below may be reversed on the ground of grave illegality or perversity.
Documentary and oral evidence adduced on behalf of the parties and the evidence of deceased Dr. Mahesh Kumar Rai, predecessor in title of the present appellants, are sufficient to prove the fact that the alleged partition deed dated 28-8-69 Ex.P-10 was executed with intention that it should not be acted upon and it was sham & nominal. It also proves the fact that Dr. Ramacharan Rai, original holder of the property, has never intended to partition the property between his sons.
As regards genuineness of the will and last will of the testator is concerned, the appellants have not adduced any evidence to show that after execution of the will dated 7-5- 96 any will has been executed by Dr. Ramacharan Rai. Deceased Dr. Mahesh Kumar Rai, the original defendant, has pleaded in his written statement that the will is void and executed under suspicious circumstances, but he has failed to adduce any evidence to show suspiciousness of the will, inter alia, conscious execution of the will has been proved by adducing oral & documentary evidence by the plaintiffs/respondents No. 1 to 4 herein. The testator of the will was Minister and has executed the will in the year 1987, and he was alive till 1991. After execution of the will he has also filed an affidavit Ex.P-15 before the Revenue Court. Mutation proceeding has been initiated against Dr. Ramacharan Rai by respondent No. 2 Smt. Rekha Rai. These facts are sufficient to draw inference that Dr. Ramacharan Rai was mentally sound and capable of understanding good & bad. Burden to prove genuineness of the will was on the plaintiffs and they have adduced the evidence of the person who has drafted the will and also of the person before whom the will was executed, the other circumstances to show genuineness of the will. After discharging initial burden, onus to prove that the will is not genuine & suspicious shifted upon the defendants, predecessor in title of the appellants, but to discharge the onus shifted upon the defendants, the original defendant has not adduced any evidence to show that the will was executed under suspicious circumstances or the testator of the will was not mentally sound and able to understand good & bad. In absence of discharge of such onus, the evidence adduced on behalf of the plaintiffs to prove genuineness of the will is sufficient to prove its genuineness. 42. In the present case, evidence adduced on behalf of the parties are sufficient to prove the genuineness of the will and the fact that the partition deed was nominal, same is executed with intention that it should not be acted upon and the partition deed was not acted upon by any of the parties. Concurrent findings of both the Courts below are not required to be disturbed without any substantial ground or illegality.
For the foregoing reasons, substantial question of law No. 1 formulated for the decision of this appeal is decided as positive, question No. 2 is decided as negative and question No. 3 is also decided as negative. No additional evidence is required for the decision of this appeal. Consequently, I.A. No. 1/2007, application for admitting additional documents, is dismissed.
Consequent to the decision on the aforesaid substantial questions of law, the present second appeal is liable to be dismissed and it is hereby dismissed. Parties shall bear their own costs.
Advocate fees as per schedule.
Decree be drawn up accordingly.
Heard on I.A. No. 2, application for framing additional substantial questions of law.
This appeal was admitted on 7-4-2000 on the following substantial questions of law:
(i) Whether the registered partition-deed dated 28-8-1969 Ex.P-10 could be treated as a sham document created for the purpose of avoiding law of urban ceiling which came into force in the year 1976?
(ii) Whether the Court below failed to see that the clear and unequivocal intention expressed by Dr. Ramcharan Rai in the aforesaid document would bring out the partition and it is not always necessary that the property should be divided by metes and bounds?
(iii) Whether merely because the execution of the Will dated 7-5-1996 (Annexure P-9) was proved the Court could not have accepted it as such without there be any proof regarding the fact that it was the last Will and Testament of the Testator and that it was executed without undue influence or fraud?
The present appellants have filed I.A. No. 2 for framing of the following additional substantial questions of law: -
(a) Whether while deciding sham corrector of Registered partition deed Ex.P-10 and execution of will Ex.P-19 courts below concurrently erred in appreciation of oral and documentary evidence and arrived at a perverse finding of fact taking into consideration irrelevant and inadmissible evidence?
(b) Whether courts below failed to appreciate pure question of law of Limitation raised by appellant?
(c) Whether after purchasing share of younger brother Upendra Kumar Rai the Respondent had right to challenge registered partition deed Ex.P-10?
(d) Whether after partition Ex.P-10 Dr. Ramamcharan Rai had right to execute will, with respect to property already given in partition?
Learned Counsel for the appellants submitted that additional substantial questions of law are necessary for disposal of this appeal and the Court is competent to frame additional substantial questions of law. Learned Counsel placed reliance in the matter of Ushabai and Ors. v. Balakrishna Biharilal and Ors. in which it has been held by the Apex Court that "where High Court considers that some more substantial questions of law arise in the matter, it is always open to it to frame the same". Learned Counsel further placed reliance in the matter of Phool Pata and Anr. v. Vishwanath Singh and Ors. in which the Apex Court has held that erroneous finding of facts on the basis of consideration on irrelevant facts leaving out the material relevant facts is a substantial question of law. Learned Counsel also placed reliance in the matter of Santosh Hazari v. Purushottam Tiwari (Deceased) By LRs. in which it has been held by the Apex Court that "High Court is not bound to confine itself to dealing only with the question initially framed by it - High Court may hear the appeal on any other such question so long as it is satisfied that the case involves the question and records its reasons for such satisfaction. `Substantial'' in context of Section 100 of the Code of Civil Procedure, 1908 (for short `the Code'') means having substance, essential, real, of sound worth, important or considerable - Such question need not, however, be one `of general importance''". Further reliance has been placed by learned Counsel for the appellants in the matter of Ramlal and Anr. v. Phagua and Ors. in which the Apex Court has held that "Lower courts having concurrently erred in not appreciating oral and documentary evidence properly, High Court was at liberty to reappreciate evidence and record its own conclusion reversing orders passed by lower courts". Learned Counsel for the appellants further submitted that additional substantial questions of law are required to be framed for just and proper decision of this case.
On the other hand, learned Counsel for the respondents opposed the application and submitted that the lower appellate Court has dismissed the appeal after appreciating the evidence available on record and nothing remains for decision after concurrent findings of the two Courts below.
Claim of the appellants is based on the alleged partition deed dated 28-8-1969 which according to the appellants is genuine. Claim of respondents No. 1 to 4 is based on the will dated 7-5-1996 which according to them is genuine and the partition deed dated 28-8-1969 is sham & bogus and does not create any interest or title upon the appellants. After appreciating the evidence available on record, the two Courts below have dismissed the suit of the plaintiffs/ respondents No. 1 to 4. On due consideration, three substantial questions of law have been framed vide order dated 7-4-2000.
Aggrieved party may prefer second appeal against the appellate judgment & decree before the High Court only on the substantial question of law, in accordance with Sub-section (1) of Section 100 of the Code, however, at the time of hearing of the appeal the Court is competent to allow the parties to argue that the case does not involve such question under the provisions of Sub-section (5) of Section 100 of the Code and the Court is competent to hear the parties on any other substantial question of law, not formulated by it, in accordance with proviso to Sub-section (5) of Section 100 of the Code.
In accordance with proviso to Sub-section (5) of Section 100 of the Code, the Court may permit the respondent or the appellant to argue that no substantial question of law is involved or upon any other substantial question of law which has not been formulated, if the parties satisfy the Court that such question is substantial question of law for just decision of the case.
On due consideration, substantial questions of law have been framed vide order dated 7-4-2000. At the time of final hearing, the respondent may be permitted to be heard under Sub-section (5) of Section 100 of the Code that the appeal does not involve the substantial question of law and if the appellant satisfies that the case involves any other substantial question of law, it may be considered and heard on the substantial question of law not so formulated at the first instance.
Consequently, I.A. No. 2 shall be heard and considered at the time of final hearing in accordance with Sub-section (5) of Section 100 & proviso to Sub-section (5) of Section 100 of the Code.
In this case, notice by this Court has not been issued to respondent No. 5. Let an SPC be issued to respondent No. 5 for his appearance before this Court or to make arrangement for his representation in the matter.
List the appeal for final hearing in its due course.