Suraj Bhan vs Harchandgir

Teja Singh, C.J. 1. This regular first appeal is directed agamst the judgment and decree of yun Judge lat Class Pati ala The facts briefly stated are as follows:

One Kishan Gir died leaving surviving him this widow'' Mt. Jiwi and an adopted son called Tota Gir. Kishan Gir had also left some property out of which a shop with Choburas was mortgaged by Totagir for Rs. 3,0007- on 26-3-191)5. On 23-12-1995 Totagir created a further charge on the said property. On the same day Totagir mortgaged for Rs:

1,000/- Chobaras and a Kitchen which had also belonged to Kishangir. On 11-1-191)8 Mt. Jiwi brought a suit for a declaration that the said three mortgages made by Totagir were ineffective against her and she was not bound by them. Her allegations were that Kishan Gir had bequeathed entire property to her by mean''-; of a will made 17-2-1967 and according to the terms of will otagir had no right to any of Kishangir''s property duringMst. Jiwi''s life time. Totagir who was also a pleaded as a Defendant in the suit, absented himself and ex parte proceedings were taken against him. The other Defendants joined issue with Mt. Jiwi on almost all the points raised by her in the first place, they contended that Mt. Jiwi not being in possession of the suit property I could maintain an action for a mere declaration this point was put in issue and found in the Plaintiff''s favour. The contesting Defendants also denied the existence of Kishangir''s will upon which fthe Plaintiff based her right to maintain the suit and contended that Totagir being the adopted son 1964 Pepsu/9 and 10 and Chela of Kishangir inherited all the property left by the latter. They further contended that the Plaintiff was estopped from questioning the validitysp of the alienations made by Totagir and bringing the suit and also that the suit was barred by time.

It may here be mentioned that Mt. Jiwi died during the pendency of the suit in the trial Court and the sons of Totagir were impleaded as her legal representatives, because it was alleged that Mt. Jiwi had made a will in their favour. The con testing Defendants denied the existence and the validity of the so-called will by Mt. Jiwi and plead ed that Totagir''s sons could not continue the suit brought by Mt. Jiwi, but their objection was over ruled. On merits the trial Sub-Judge framed the following issues:

Did Kishangir deceased husband of the plain tiff make a will in favour of the Plaintiff. If so can she file the present suit on its basis without obtaining probate or letters of Administration?

Is Tocagir adopted son of Kishangir and as . such the owner of the property in dispute? Did the Plaintiff represent to the Defendants that Totagir is the real owner of the property in dispute and now she is estopped to deny this? 3. Is the suit within time? 4 Is the Plaintiff legally married wife of Kishangir?

Could Kishangir make a valid will in the presence of Totagir?

All the issues were found in the Plaintiff''s favour and the suit was decreed. The Defendants other than Totagir are the Appellants before us.

Before adverting to the merits of the case I consider it necessary to point out that the issues framed in the case were defective. In the first place each of the issues Nos. 1 and 2 related to more facts than one and according to the provisions of law each fact should have been made the subject-matter of a separate issue. For example issue No. 1 relates to the will alleged to have been made by Kishangir and also to the Plaintiff''s right to institute the suit without obtaining a probate or letters of administration. Both are distinct mutters, one involved a question of fact and the other that of law and in my opinion two separate issues should have been framed in respect of them. The first part of the second issue related to the adoption of Totagir by Kishangir. The second part raised the question of estoppel. I cannot understand how these matters could have been jumbled up in one issue. As regards the part of the issue relating to estoppel it indicates that the Plaintiff represented to the Defendants that Totagir was the owner of the. property but by referring to the pleadings I find that no such plea was taken by the Defendants and this being the case I cannot understand on what material the issue was framed. I Now a plea of estoppel must always be based upon facts and when no facts are given no consideration can be given to the plea and accordingly no issue can be framed relating to it.

After having heard the parties, counsel the conclusion to which I have arrived at is that the case can be disposed of on the short ground that the will upon which the suit was based has not been proved. From what was stated by Harchand gir, Mt. Jiwi''s Mukhtar, on 14-8-1998 it appears that the said will was in existence and was in the possession of the Plaintiff at the time the suit was instituted. In spite of this the Plaintiff did not attach it with the plaint nor did she produce it in Court. What the reason for this omission was has not been explained. The suit was instituted on 11-1-1998. On 30-7-1998 an application was made on behalf of the contesting Defendants praying that the Plaintiff be called upon to produce the original will. Evidently it was in response to this that Harchandgir, cue of Totagir''s sons, who was appointed Mukhtar by Mt. Jiwi, appeared in Court and stated that the original will had been lost. How it had been lost and when, the Mukhtar did not try to make clear and all that he stated was that it could not be traced in Kishangir''s papers after his death. When the case arrived at the stage of evidence the only witness who was produc�ed to - prove the will was Trilok Singh ahalmad of the Sub-Registrar. He produced the register from the office of the Sub-Registrar and deposed that a will purporting to have been made in favour of Totagir and registered on 17-2-1967 was copied out in the Register. There was not a word in his evidence whether he was present at the time the document was produced before the Sub Registrar by the alleged testator or he admitted its execution.

The Plaintiff also produced an attested copy of the will but the attested copy merely constituted secondary evidence of the original will and according to Section 65, Indian Evidence Act it could be admitted in evidence only if it was proved that the original had been lost or destroyed. Curiously enough no evidence was examined on behalf of the Plaintiff to prove the loss or destruction of the original will. I have already observed that Harchandgir, Mt. Jiwi''s Mukhtar, stated that the original will'' could not be traced in Kishangar''s papers, but his statement having been taken before the issues and as a party was not evidence in the case. The term ''evidence'' is defined in Section 3, Evidence Act as meaning and including statements which the Court permits or requires to be made before it by witnesses and all documents produced for the inspection of the Court. As it is clear that at the time Harchandgir made his statement on -14-8-1998 he was not a witness in the case and the other side had no opportunity to test the correctness of his averment by cross-examination his statement was not evidence. In addition it may be "pointed out that the proper person who could depose to the existence of the will was Mt. Jiwi her self but for reasons which are not clear from the record she never took the trouble of making any statement in Court on the point. This means that the certified copy of the will could not be admitted in evidence and consequently the existence of the will alleged to have been made by Kishangir was not proved. Apart from this, there is no evidence that the will in question was made and executed by Kishangir and that he had a disposing mind at the time the document was executed. These are also essential facts which must be proved before a suit based upon a will can be decreed.

The fact that the will has not been proved ''would not only deprive Mt. Jiwi of the right to toaintaln the suit but also affect the right of Total air''s sons to continue the proceedings in the suit on-Mt. Jiwi''s death. Their position was that Mt., Jiwi had deprived Totagir of the right to succeed to the property left by Kishangir on her death by means of a will made by her and that this power had been given to her by Kishangir by means of the will. So when the will by Kishangir is not proved Mt. Jiwi had no right to appoint Tanager''s sons as her heirs in preference to Totagir who was Kishangir''s adopted son and Chela and consequently an cause of action survived to them.

For all these reasons I would allow the appeal, set aside the decree and the judgment of the Court below and dismiss the Plaintiff''s suit. la view of the peculiar circumstances of the case I would leave the parties to bear their own costs throughout.

Gurnam Singh, J.

I agree.