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Judgment
N.C. Jain, J.—Before appreciating the precise question involved in this appeal, it is necessary to have a look at the facts stated in the plaint.
One Nand Lal was the owner of 1/2 share in 531 Kanals 18 marlas of land situated in village Malia, Tehsil and District Gurdaspur. Nand Lal had two sons Devinder Nath and Tarlok Nath. Devinder Nath died during the life time of his father Nand Lal. Plaintiff No. 1 is the widow of Devinder Nath whereas plaintiff Nos. 2 to 4 and defendant No. 3 are the four daughters of the deceased Devinder Nath. Nand Lal during his life time left a Will dated 4.12.1969. According to the terms of the Will, defendant No. 1 Tarlok Nath was made liable and responsible to give the plaintiffs by way of maintenance the 1/4th share of produce of Nand Lal''s land situated in village Malia. Tarlok Nath was also made liable to pay all the expenses of the marriages of the daughters of Devinder Nath and in case he did not fulfil the obligations imposed upon him. the same could be got enforced against the land of Nand Lal. A charge was created for this purpose on the land bequeathed to defendant No. 1. Plaintiff No. 1 was to become owner of 1/2 share of a residential house at Qadian wherein the plaintiffs were living. It was averred in the plaint that Tarlok Nath, defendant No. 1 has failed to fulfil his obligations and liabilities imposed upon him towards the plaintiffs. It was specifically averred that defendant No. 1 has appropriated to himself the entire produce of 1/2 share of 581 kanals 18 marlas land in regard to the harvest of Kharif 1974 to Rabi 1977. It was further averred that defendant No. 1 did not spent anything'' on the marriage of defendant No. 3 and refused to incur any expense when asked to do so compelling plaintiff No. 1 to obtain the amount needed for the expenses of marriage of defendant No. 3 from her brothers and other relations. The expenses of marriage amounted to more than Rs. 10,000/-. The marriage was performed in 1.975. It has further been averred that plaintiff No. 2 Sunita Devi has become of marriageable age and that her marriage was not being performed for want of money. The plaintiffs claimed a decree for a sum of Rs. 80,060/- (Rs. 10,000/- towards the payment of produce, Rs: 10,000/- as marriage expenses of defendant No. 3 and another sum of Rs. 10,000/- as marriage expenses of plaintiff No. 2) besides claiming a decree for joint possession to the extent of 1/8th share of 531 kanals 18 marlas of land on the ground that neither defendant No. 1 fulfilled the obligations in respect of liabilities imposed upon him in the Will nor was he likely to fulfil the obligations in future.
The suit was contested by defendant No. 1 alone. It was-pleaded that defendant No. 1 had been paying share of the produce to the plaintiffs regularly. It was further pleaded that the marriage of defendant No. 3 was performed by defendant No. 1. Willingness to perform the marriage of plaintiff No. 2 was also shown in the written statement provided the marriage was performed according to-his wishes. The execution of the Will by Nand Lal was admitted. The claim of the plaintiffs for grant of a decree for joint possession of 1/8th share of the land was contested. On the basis of the pleadings of the parties, the following issues were framed:
Whether defendant No. 1 has paid the share of produce for Kharif 1974 to Rabi 1977 as per terms of the Will? OPD.
If issue No. 1 is not proved, on account of 1/4th share to what amount, plaintiff No. 1 is entitled to, on account of her share of produce from Kharif 1974 Rabi 1977 ? OPP.
Whether plaintiff No. 1 has spent a sum of Rs. 10,000/- on the marriage of Naresh Kumari defendant No. 3, if so, to what effect ? OPP.
Whether defendant No. 1 has incurred the entire expense of the marriage of Naresh Kumari as alleged, if not, to what effect ? OPD.
To what amount the plaintiff No. 1 is entitled to meet the-expenses of the marriage of plaintiff No. 2 ? OPP.
Whether defendant No. 1 has committed the breach of the terms of Will Exhibit P-1 and on the account, the plaintiff is entitled to possession of 1/4th share of the suit land as described in the heading of the plaint? OPP.
Relief.
Under Issue No. 1, it was held that defendant No. 1 did not pay the share of the produce of the plaintiffs as per terms of the Will from Kharif 1974 to Rabi 1977 or for any period whatsoever. Under Issue No. 2. the trial Court found that the plaintiffs are entitled to recover Rs. 10,000/- as their share of the produce from defendant No. 1. Issue Nos. 3 and 4 were decided together and it was found under the afore-mentioned issues that defendant No. 1 did not bear expenses on the marriage of Naresh Kumari and that the same were borne by her mother Ram Piari plaintiff No. 1. Issue No. 5 was decided in favour of the plaintiffs holding that plaintiff No. 1 was entitled to recover a sum of Rs. 10,008/- from defendant No. 1 by way of marriage expenses of plaintiff No. 2 Sunita Devi whose marriage was performed during the pendency of the litigation. Under Issue No. 6, a categorical finding was recorded by the trial Court that defendant No. 1 failed to pay the share of the produce to the plaintiffs and that he had also failed to spend any money over the marriage of the daughters of plaintiff No. 1 as per terms of the Will. It was further found by the trial Court that defendant No. 1 was not likely to fulfil his obligations in future in view of strained relations between the parties and, therefore, the plaintiffs could not be. left at the mercy of defendant No. 1 to ensure the fulfilment of the obligations by knocking at the door of the Court every time for getting the sale of the produce of the land and, therefore, they were entitled to a decree for joint possession of 1/4th share of 1/2 share of 531 kanals 8 marlas of land i.e. 1/8 share of 531 kanals 18 marlas of land. Under the relief clause, the plaintiffs were held entitled to a decree for a sum of Rs. 30,000/- besides a decree for joint possession of 1/8th share of 531 kanals 18 marlas of land. Defendant No. 1 filed a Regular First Appeal before this Court and obtained stay of execution of the decree pertaining to the joint possession of the immovable property but no stay was granted for the recovery of Rs. 30,000/-.
During the pendency of the appeal, Ram Piari plaintiff No. 1 died and left behind four daughters as her legal representatives. Defendant No. 1 Tarlok Nath also died and wag survived by three sons who were impleaded as respondents in this appeal.
After hearing the learned counsel for the parties at length and after perusing the entire record, this Court has been able to reach a conclusion that there is absolutely nothing in this appeal. The learned trial Court on perusal of the statements of Sukhdev Raj DW-9 and Ram Pal DW-10 has recorded a correct finding to the effect that defendant No. 1 has failed to prove that he had been paying the share of the produce to the plaintiffs. Both these witnesses could not state in their statements the extent of the share of the produce given by defendant No. 1. Only general and vague statements were given by them. Rather DW-10 Ram Pal has admitted in his cross-examination that his relations with Ram Piari plaintiff became strained because she married away her younger daughter Sunita against the wishes of Tarlok Nath. This witness is closely related to Tarlok Nath. Even the statement of defendant Tarlok Nath himself in the witness box as DW-13 has not been able to convince this Court. He took altogether a different stand pertaining to the payment of the share of the produce. He deposed that with the intervention of some relatives, a settlement was arrived at between him and plaintiff No. 1 and he had been making payment of Rs. 400/- per month to Ram Piari plaintiff as maintenance upto Rabi 1977. This stand was not the precise plea taken in the written statement. The stand is clearly an after-thought. No relation has stepped into the witness box to depose regarding the compromise for payment of Rs. 400/- per month. Once there was a dispute and there was a compromise for settlement of the dispute, defendant No. 1 would not have paid Rs. 400/- per month without obtaining a receipt.
For the reasons recorded above, this Court is inclined to confirm the finding recorded under Issue No. 1 that defendant No. 1 had failed to prove on record that he had been paying the share of produce to the plaintiffs from Kharif 1974 to Rabi 1977.
The finding recorded by the trial Court under issue No. 2 that the plaintiffs are entitled to the grant of Rs. 10,000/- by way of their share from the produce from defendant No. 1 for the relevant period deserves to be confirmed as the same has been arrived at on the basis of Exhibit PW-8/1 an estimate of the produce prepared by Gurdial Singh Kanungo PW-8. Even DW-13 Tarlok Nath had to admit in his cross examination that the net income from the land was Rs. 20,000/- per year. He could not produce any evidence to contest the estimate prepared by the official Kanungo. The claim is not at all excessive.
The statement of plaintiff Ram Piari PW-1. while discussing under issue Nos. 3 and 4, to the effect that she spent Rs. 15,000/- or Rs. 16,000/- on the marriage of her daughter Naresh Kumari and that Tarlok Nath defendant never spent anything on the marriage of her daughter Naresh Kumari has rightly been believed by the trial Court She has produced Madan Lal PW-2 the husband of Naresh Kumari who had deposed that Ram Piari spent about Rs. 20,000/- on their marriage. PW-4 Gurdial Singh has supported Ram Piari. The statements of the witnesses produced by defendant No. 1 have rightly been discarded by the trial Court by recording a finding which is reproduced below:-
"The statement of Chanan Lal DW-1 is of no avail to the defendant as he could not state as to who arranged and spent for the. marriage of Naresh Kumari. Dev Raj DW-2 only charged Rs. 200/- from Tarlok Math as labour charges. Hans Raj DW-3 proved 4 bills Exhibits D-1 to D-4 but his statement does not go to show that the marriage of Naresh Kumari was performed by Tarlok Nath. The statement of Chanan Lal D W-4 also does not help the contesting defendant as he has not stated in specific terms as to who spent for the marriage of Naresh Kumari Pritam Singh DW-5 has admitted in his cross-examination that no payment regarding the expenses of the marriage of Naresh Kumari were paid by Tarlok Nath defendant in his presence A similar statement has been made by Gian Chand DW-6 that no payment was made in his presence by Tarlok Nath regarding the marriage expenses of Naresh Kumari, He has admitted that he was deposing in Court at the instance of Tarlok Nath with whom, he has got good relations. Charan Dass DW-7 in deposed that no amount of expenditure, regarding the marriage of Naresh Kumari was incurred by Tarlok Nath in his presence. The statement of Durga Dass DW-8 does not inspire any confidence. Sukhdev Raj DW-9 has stated nothing about the expenses having been born by Tarlok Nath defendant. In his presence, only the payment of Rs. 40/- or Rs. 50/- was made. The statement of Ram Pal DW-10 cannot be relied upon as correct as he has admitted that his relations with Ram Piari are strained. He has stated that he has maintained the accounts of the marriage of Naresh Kumari but he is nobody to maintain such a record and moreover the diary pertains to the year 1967 whereas the marriage was celebrated in the year 1975 and moreover, the eatries from the diary were not got exhibited. It seems that the entries were subsequently made in order to create evidence. Amar Nath DW-11 has admitted in his cross-examination that no amount of expenditure of the marriage of Naresh Kumari was paid or spent in his presence Pritpal Singh DW-12 has deposed that from his shop, articles worth Rs. 100/- or Rs. 150/- must have been purchased. But he could not tell the "articles or the items purchased from the shop by defendant. Then, there remains the statement of Tarlok Nath defendant DW-13 against which there is the statement of Ram Piari plaintiff PW-1".
In view of the finding recorded by the trial Court reproduced above and in view of the discussion of the statements of the plaintiff''s witnesses, this Court has got the least hesitation in holding that Ram Piari had arranged the money for the marriage from her brothers. Issue Nos. 3 and 4 have rightly been decided by the trial Court. Similarly, issue No. 5 has also rightly been decided by the trial Court under which a firm finding has been recorded that defendant No. 1 did not incur any expenses on the marriage of Sunita Devi which took place during the pendency of the litigation. In view thereof, this Court has reached the conclusion the grant of decree for a sum of Rs. 30,000/- cannot be said to be excessive.
The above mentioned discussion leads this Court to decide as to whether in view of the conduct of defendant No. 1, the trial Court has acted rightly or not in granting a decree for joint possession of 1/8th share out of land measuring 531 kanals 18 marks.
The learned counsel for the appellant has argued that the finding of the trial Court granting a decree for joint possession of the land is unsustainable inasmuch as no law favours the grant of a decree for land simply because a default has been committed by defendant No. 1. The learned counsel has referred to the averments made in the Civil Miscellaneous Application No. 1188 of 1991 and annexures attached with the said application in order to contend that the plaintiffs have been paid certain amounts during the pendency of the appeal. It has also been brought to my notice that the decretal amount of Rs. 30,000/- has been paid. The attention of this Court was invited to certain payments which were made in pursuance of agreement about the share of produce during the pendency of the appeal.
After giving thoughtful consideration to the entire matter this Court is of the firm view that there no force in the argument of the learned counsel for the appellants. May be, there is no case law which can really support the view of the trial Court granting a decree for joint possession of the land left by the grandfather of the daughters who are the only contesting parties after the death of their mother. It is defendant No. 1 who has to be blamed for the entire episode, in view of his failure to comply with the part of the obligations imposed by his father in the Will. It was he who was ultimately to become the owner of the entire land if he had maintained his brother''s widow and performed the marriages of the daughters of his deceased brother. Once the family of the deceased brother was left unprotected on the road it cannot successfully be maintained that decree for joint possession of the land cannot be granted in favour of the plaintiffs. If the father of defendant No. 1 had not given only the right of maintenance in the Will to the family of his deceased son, the family would have been entitled to equal share in the property. If there is failure on the part of defendant No. 1 to grant maintenance to the family of his deceased brother, surely, the plaintiffs can be held entitled to the grant of a decree for the land. Defendant No. 1 by not complying with directions in the Will has not honoured the wishes of his father and, therefore, for all intents and purposes the Will has been frustrated. The Courts of Law in such a situation can certainly grant a decree giving the land to the rightful heirs to which they would even otherwise have been entitled to but for a Will which was working as an obstacle. The Court cannot shut its eyes and do injustice simply because no specific default clause was written in the Will by the testator as to what would happen in case the surviving son who was being given the right of ownership in the land failed to give maintenance to his widowed daughter-in-law and grand-daughters. Even the counsel for the appellants could not cite any case law in his favour to the effect that the plaintiffs are not entitled to the grant of a decree for land in the light of peculiar facts and circumstances of the instant case. In fact, here is a case before this Court of unique nature in which the view taken by the trial Court can be supported in law, equity and fair play.
The payments made during the pendency of the appeal do not advance the case of the appellants. This Court declined to stay the execution of the decree for Rs. 30,000/- and, therefore, the payment of decretal amount cannot be said to be any obligation upon the plaintiffs. Similarly, certain payments made towards the share of the produce of the plaintiffs during the pendency of the appeal whether by way of agreement or otherwise would not make any difference whatsoever. Defendant No. 1 or his heirs were liable to pay the share of the produce of plaintiffs during the pendency of the appeal. There was no stay granted in this respect by this Court.
For the reasons recorded above, the appeal is found to be meritless and is ordered to be dismissed with no order as to costs. This disposes of Civil Miscellaneous Application No. 1637-CI of 1979.