The next reason given by the lower appellate court that
the entry in the Nazul record or Corporation is for fiscal purpose
and did not confer the title. The reason is clearly faulty. The
question is whether the oral partition pleaded by the plaintiff with
the supportive old mutation entry by the Nazul department in the
year 1958 was proved and not whether Nazul entry would confer
the title. If proved, such a partition as is the settled legal position,
does not require registration. The lower appellate court failed to
make out a distinction about the importance of of Nazul entry in
respect of oral partition duly recorded subsequent to the partition.
The said nazul document has very high probative value and in the
absence of any challenge to the same from the year 1958 and even
in the present suit, the lower appellate court was not justified in
rejecting the said document for the said reason. I, therefore, hold
that the finding about oral partition, reversed by the lower
appellate court is perverse. Hence, I answer question no. (iii) in
the affirmative.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Second Appeal No.391/1999
Sangramsingh Premsingh Thakur,
...V E R S U S...
Smt. Sarlabai w/o Chhotelal Thakur,
CORAM:
A.
B. CHAUDHARI, J.
DATED :10.07.2014
Citation;2015(2) MHLJ 488
1. Being aggrieved by the judgment and decree dated
14.11.1994 passed by 5th Jt. Civil Judge Jr. Dn. Amravati in Reg.
Civil Suit No.641/1992 and confirmed by judgment and decree
dated 20.07.1999, passed by Addl. District Judge, Amravati in
Reg. C. A. No.315/1994, the unsuccessful plaintiffappellant
had
filed the present second appeal.
FACTS
2. The appellantplaintiff
had filed a suit for possession of
the suit property from the respondentdefendant.
It was the case
of the appellantplaintiff
that Khushalsingh, his grandfather was
original owner who had sons namely; Kanayasingh, Shamsingh,
Premsingh and his widow Chhotibai. After death of Khushalsingh,
the mother and brothers effected the partition in the year 1958
and the suit property went to the share of Chhotibai while others
took their respective shares in their possession. Chhotibai was
residing with Premsingh and by a registered will dated
09.12.1966, she bequeathed her share to the plaintiffappellant,
who was then minor. However, the suit property was forcibly
taken into possession and construction was also made on the open
plot after demolition of the old house by defendant without
getting any plan sanctioned from the Municipal Corporation,
Amravati and, therefore, it was illegal. The Amravati Municipal
Corporation had also issued notice under section 264 of the
Bombay Provincial Municipal Corporation Act on 07.12.1990 but
no action was taken. The plaintiff was thus entitled to possession
of the suit property since he was the beneficiary under the
registered will executed in his favour by Chhotibai, his
grandmother.
3. The defendant appeared and filed his written statement
and denied the claim made in the suit. The defendant also denied
the description of the suit property and further stated that it was a
joint family property left by Khushalsingh and there are several
legal heirs of the deceased Khushalsingh who were entitled to
succeed to the estate left by him. In the absence of any suit for
partition, under the above circumstances, the suit for possession
was not maintainable. The suit was not filed within 12 years and,
therefore, the title of the plaintiff, if any, extinguished under the
provisions of Section 27 of the Limitation Act. The mutation
carried out in the record of the Amravati Municipal Corporation
was not in accordance with law and was not legal, correct and
proper. The taxes were paid by defendant from the year 1979
onwards when there was attachment of the property, which shows
that the plaintiff never wanted to assert his so called title. It was
their defence in the written statement. The trial Judge framed in
all 11 issues and one additional issue. Parties to the suit led their
respective evidence, oral as well as documentary. The trial Judge
dismissed the suit only on the ground that the title of the plaintiff
stood extinguished as per section 27 of the Limitation Act, though
answered all the material issues on merits in favour of the
appellantplaintiff.
The lower appellate reversed the finding of
trial court on the question of limitation with reference to section
27 of the Limitation Act and held in favour of the appellantplaintiff.
However, he reversed the finding on partition and the
will and ultimately confirmed the decree of dismissal of the suit.
Hence this second appeal.
SUBMISSIONS:
4. In support of the appeal, Dr. Anjan De, learned counsel
for the appellant, vehemently argued that the lower appellate
court committed serous error in reversing the finding of the trial
Judge on the question of partition and the will in the absence of
any appeal or crossobjection
by respondentdefendant
before him.
Not only that, the finding of the trial Judge were not even
challenged or stated/argued to show that they were wrong. The
lower appellate court has, in a totally illegal manner resorted to
the provisions of Order 41 rule 33 of the Code of Civil Procedure,
which could not have been utilised all the more so because
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respondent had failed to file crossobjection
or raise any challenge
to any of the findings as required by order 41 rule 22 of the C.P.C.
According to Dr. De, there is misapplication of the provision by
lower appellate court in the absence of any appeal or crossobjection
by respondentdefendant.
He further argued that at any
rate, even on merits, the oral partition that was made between
brothers and mother, after death of Khushalsingh was fully
corroborated by entry to that effect made in the year 1958 itself
and the evidence on record about separate residence of the parties
after partition. Reliance placed by lower appellate court on the
alleged admission in the crossexamination
about written
document of partition is wholly misconceived and misplaced. He,
then, argued that oral partition, that was recorded in the mutation
entries, obviously did not require any registration and, therefore,
was required to be accepted. As to the will, learned counsel for the
appellant, argued that finding by lower appellate court is wholly
perverse. According to him, the will is a registered will and has
been duly proved by the witness who knew the handwriting and
signature of the attesting witness who had died. None of the
attesting witnesses was available for being examined and,
therefore, close acquaintance, who identified the signature was
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examined but for no reason, the lower appellate court has
discarded the will and the reasons given by the lower appellate
court are absurd. Dr. De, therefore, submitted that the appeal
deserves to be allowed by passing the decree.
Dr. De, in support of his submissions, relied on the
decision in Nani Bai ..vs.. Gita Bai Kom Rama Gunge; 1958 AIR
(SC) 706.
5. Per contra, Mr. Kasat, learned counsel for the
respondent, opposed the appeal and supported the impugned
judgment and decree. He argued that the finding recorded by the
trial Judge on the material aspect regarding partition was perverse
and contrary to the law and the lower appellate court was justified
in taking recourse to Order 41 Rule 33 of the C.P.C. for setting
aside the findings which were wrong and not based on any
evidence. He further argued that even if the appeal or crossobjection
was not filed by respondentdefendant,
the power of the
appellate court to correct errors made by the trial court remains
intact and that is what the lower appellate court did. Inviting my
attention to the crossexamination
of Premsingh, Mr. Kasat
submitted that Premsingh admitted that there was a written
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document prepared after oral partition was effected. In the wake
of the said admission and suppression of alleged document of
partition, the lower appellate court was justified in rejecting the
theory of partition propounded by the plaintiff. At any rate,
according to him, all these are the findings of facts recorded by the
lower appellate court and cannot be disturbed in the second
appellate jurisdiction of this Court. As to the document of
mutation with Amravati Municipal Corporation, he submitted that
the said document cannot be held to be a title document and as
held by the lower appellate court, it is useful only for fiscal
purpose and no title could be derived therefrom. He, therefore,
submitted that contradictory case about partition was pleaded by
plaintiff and, therefore, the lower appellate court rightly rejected
the same. He then submitted that the findings of facts recorded by
the lower appellate court that the will was not proved according to
law is legal, correct and proper since the best witness to prove
handwriting and signature of the attesting witness Ismail Ali was
his daughter and she was not examined but a third person was
examined to do so and that is the matter of appreciation of
evidence and hence the same cannot be interfered with.
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In support of his submission, Mr. Kasat, learned counsel
for the respondent, relied on the judgments in Karewwa and
ors. .vs. Hussensab Khansaheb Wajantri & ors.; 2002 (10) SCC
315 and K. Laxmanan..vs..Thekkayyil Padmini & ors.; 2009 (1)
SCC 354. Finally, he prayed for dismissal of this appeal.
CONSIDERATION:
6. Upon hearing learned counsel for the rival parties and
upon perusal of the question that was framed at the time of
admission of this second appeal, I reframe the substantial
questions of law as under:
(i) Whether in the absence of any appeal or
crossobjection
contemplated by Order 41 Rule 22 of
the C.P.C. or any statement by respondent before
the lower appellate court that the finding against
him by the trial court in respect of any issue ought
to have been in his favour, the lower appellate court
was justified on its own by utilising the power of the
court of appeal contemplated by Order 41 Rule 33
of C.P.C.?
Answer: No.
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(ii) What is the distinction between the
provisions of Order 41 Rule 22 and Order 41 Rule
33 of the C.P.C.?
Answer: As stated.
(iii) Whether the lower appellate court
committed error by perversely reversing the finding
of fact recorded by the trial court about the
existence of partition?
Answer: Yes
(iv) Whether the lower appellate court
committed error in holding that the registered will
dated 09.10.1966 Exh.48
was not proved and
whether the will was proved in the light of section
69 of the Evidence Act?
Answer: Yes, the Will was proved.
(v) Whether the findings recorded by the
trial court that the claim of the plaintiff stood
extinguished as per section 27 of the Limitation Act
was rightly reversed by the lower appellate Court?
Answer: Yes.
(vi) What order?
Answer: As per final order.
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7. As to question nos.(i) & (ii):
The trial Judge held the existence of partition in the
family in the year 1958 and allotment of suit house to Chhotibai.
The trial Judge also held that the registered will dated 09.12.1966
Exh.48
in favour of the appellantplaintiff
by Chhotibai was duly
proved. However, the trial Judge held that as per Section 27 of
the Limitation Act, the claim of appellantplaintiff
stood
extinguished and it is only on the basis of the said finding, he
dismissed the suit. The appellant preferred Regular Civil Appeal
before the District Judge, under section 96 of the C.P.C. The
respondent did not lodge any crossobjection
before the lower
appellate Court nor stated that the finding about partition or will
recorded by the trial court ought to have been in his favour. Thus,
the respondent did not take recourse to the provision of Order 41
Rule 22 of the C.P.C. in order to assail the finding of fact recorded
by the trial Judge on the issue of partition and will. It is, in this
context, the lower appellate Court made endeavour to exercise
power under Order 41 Rule 11 of the C.P.C. and reversed the
finding of the trial Court on the partition and the will which is
evident from paragraph 13 of his judgment, which I quote
hereunder:
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“13. …...The defendant has not filed cross
appeal or cross objection in regard to the affirmative
finding of the trial judge in relation to the partition
and allotment of suit house to the share of
Chhotibai and the will executed by deceased
Chhotibai. However, the absence of filing of a cross
appeal or cross objection against the affirmative
finding of the trial judge makes no difference and
the Appellate Court has wide power under Rule 33
of Order 41 of C.P.C. to set aside the finding of the
trial judge on any issue if it appears to the Appellate
Court that a particular issue ought not to have been
or answered or decided in favour of either of the
party to the suit.”
8. Order 41 Rule 22 of the C.P.C. reads thus:
“22 . Upon hearing respondent may object to decree
as if he had preferred a separate appeal— (1) Any
respondent, though he may not have appealed from
any part of the decree, may not only support the
decree but may also state that the finding against
him in the Court below in respect of any issue ought
to have been in his favour; and may also take any
crossobjection
to the decree which he could have
taken by way of appeal provided he has filed such
objection in the Appellant Court within one month
from the date of service on him or his pleader of
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notice of the day fixed for hearing the appeal, or
within such further time as the Appellate Court may
see fit to allow.
Explanation—A respondent aggrieved by a finding
of the Court in the judgment on which the decree
appealed against is based may, under this rule, file
crossobjection
in respect of the decree in so far as it
is based on that finding, notwithstanding that by
reason of the decision of the Court on any other
finding which is sufficient for the decision of the
suit, the decree, is, wholly or in part, in favour of
that respondent.
(2) Form of objection and provisions applicable
thereto—Such crossobjection
shall be in the form of
a memorandum, and the provisions of rule 1, so far
as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
(3) Unless the respondent files with the objection a
written acknowledgment from the party who may be
affected by such objection or his pleader of having
received a copy thereof, the Appellate Court shall
cause a copy to be served, as soon as may be after
the filing of the objection, on such party or his
pleader at the expense of the respondent.
(4) Where, in any case in which any respondent has
under this rule filed a memorandum of objection,
the original appeal is withdrawn or is dismissed for
default, the objection so filed may nevertheless be
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heard and determined after such notice to the other
parties as the Court thinks fit.
(5) The provisionsrelating
to appeal by indigent
persons shall, so far as they can be made applicable
apply to an objection under this rule. ”
Perusal of the Rule 22 supra clearly shows the following
salient features:
(i) Without filing the appeal, respondent
can support the decree.
(ii) Respondent may also state that a
particular finding or findings against him by
the Court below in respect of any issue ought
to have been in his favour.
(iii) If respondent is aggrieved by any
decree or part of decree against him, he will have
to file crossobjection
within one month.
Explanation to rule 22 is in the nature of
clarification. The respondent, aggrieved by decree
based on finding which, according to him is
illegal, will have to file crossobjection.
To sum up, Rule 22 is an enabling provision for the
respondent to take steps, one or all the above three; if he has not
preferred any appeal but still wants to contest the decree or part of
the decree adverse to him, he will have to file crossobjection
within one month which then is treated as appeal. If the
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respondent is aggrieved by adverse finding on any issue then he
will have to state that the finding on such an issue ought to have
been in his favour during the course of hearing of the appeal and
this is what Order 41 Rule 22 C. P. C. is.
As observed by the lower appellate Court in para 13
cited supra, the respondent did not either file crossobjection
or
stated before the lower appellate court on hearing of the appeal
that the finding on the issue of partition and will ought to have
been in his favour. In other words, the respondent did not prefer
to take benefit of the provision of rule 22 before the lower
appellate court and that is why the lower appellate court went on
to exercise power under Order 41 rule 33 of C.P.C.
9. Order 41 Rule 33 of the C.P.C. reads thus:
“33. Power of Court of Appeal— The Appellate
Court shall have power to pass any decree and make
any order which ought to have been passed or made
and to pass or make such further or other decree or
order as the case may require, and this power may
be exercised by the Court notwithstanding that the
appeal is as to part only of the decree and may be
exercised in favour of all or any of the respondents
or parties, although such respondents or parties may
not have filed any appeal or objection and may,
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where there have been decrees in crosssuits
or
where two or more decrees are passed in one suit, be
exercised in respect of all or any of the decrees,
although an appeal may not have been filed against
such decrees.”
Perusal of Rule 33 supra shows that the appellate court
is invested with the power to pass order to make such further
order or decree as the case may be required, even if no appeal or
objection has been filed.
10. It is interesting to note that on evidence, the learned
trial Judge held that there was a partition effected in the year
1958 amongst three brothers and Chhotibai, the mother and the
suit property was allotted to Chhotibai as her share. As against
this, the lower appellate court held that the factum of partition
pleaded by the plaintiff was not proved because Premsingh had
given admission in the crossexamination
about the fact of
partition being reduced to writing and that the document was not
produced though the plaintiff had relied on the document. The
learned trial Judge held that the registered will dated 09.12.1966
was duly proved under which the plaintiff become the owner of
the suit property while the lower appellate court held that the Will
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was not proved because Usmankhan, being a person aged about
85 years, could not be believed. Secondly, the death of the two
attesting witnesses Shankar Mata and Ismail Ali was not proved
because their death certificates were not produced. To prove the
handwriting and signature of Ismail Ali, his daughter was not
brought, but Usmankhan (PW3) who was the Headmaster in the
school where Ismail worked was examined. The name of
Usmankhan was not in the list of witnesses. The trial Judge
negatived the plea of defendant that the property was not
correctly described and the appellate court has not dealt with the
subject. The trial court, thus on material points of partition and
will, held in favour of the appellantplaintiff
but answered the
issue of limitation against the appellantplaintiff
and dismissed the
suit. As against this, the lower appellate court reversed the finding
of trial court on the question of limitation namely; section 27 of
the Limitation Act and held the said issue in favour of the
appellantplaintiff
in his appeal. But the lower appellate court, in
the absence of any appeal or crossobjection
or challenge to any of
the findings by the respondentdefendant,
reversed the findings
recorded by the trial Judge in favour of the appellantplaintiff
about partition and the will both and stated that though there was
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no appeal or crossobjection
by the respondentdefendant,
as a
court of appeal, he was entitled to take recourse to Order 41 Rule
33 of the C.P.C.
11. In my opinion, the exercise of power under rule 33 of
Order 41 CPC must be held to be limited and is not all pervasive
lest it should diminish the requirement contemplated by Rule 22
as ordained by law in the eventualities mentioned in Rule 22. In
my opinion, the legal position stated in or quoted in paragraph 10
in judgment in Venukuri Krishna Reddi & anr...vs.. Kota
Ramireddi and ors; AIR 1954 Madras 848 appears to be the
correct reading of the said provision. I quote extracted portion
from para 10 of the said judgment:
“10. Though Order 41, Rule 33 confers wide
and unlimited jurisdiction on courts to pass a decree
in favour of a party who has not preferred any
appeal, there are, however, certain well defined
principles in accordance with which that jurisdiction
should be exercised. Normally a party who is
aggrieved by a decree should, if he seeks to escape
from its operation, appeal against it within the time
allowed after complying with the requirements of
law. Where he fails to do so, no relief should
ordinarily be given to nun under Order 41, Rule 33.
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As observed in '
Jawahar Bano v. Shujaat Hussain
Beg', AIR 1921 All 367 (H) explaining the decision
of the Full Bench in '
Rangamlal v. Chandu', 34 All
32 (I):
"where there is no sufficient reason for
a respondent neglecting either to
appeal or to file objections the courts
will hesitate before allowing him to
object at the hearing or the appeal."
In '
Abjal Majhi v. Intu Bepari', AIR 1916 Cal 250
(J) Mukherjee J. observed:
"This rule is no doubt very widely
expressed; but clearly, it should not be
applied so as to enable a party litigant
to ignore the other provisions of the
Code or provisions of statutes like those
which relate to the limitation or
payment of courtfees".
Vide also '
Akimannessa v. Bepin Behari', AIR 1916
Cal 261 (K). But there are well recognised
exceptions to this rule. One is where as a result of
interference in favour of the appellant it becomes
necessary to readjust
the rights of other parties.....
These are well recognised classes of case
in which it would be legitimate to exercise the
powers under that rule even though there was no
appeal relating to the subjectmatter.
This, however,
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is not intended to be an exhaustive enumeration of
the classes of cases in which courts could interfere
under Order 41, Rule 33. Such an enumeration
would neither be possible nor even desirable for
situations might arise which cannot be foreseen or
predicted in which the court must have the power to
exercise its jurisdiction under that rule. As observed
by Jenkins C. J. in '
Gangadhar v. Banabhashi',
AIR 1914 Cal 722 (P), "no hard and fast rule can be
laid down". But however extensive this power may
be, one principle can be taken to be well established:
it is that when a party having right to appeal fails
to do so, relief should ordinarily be refused to him
under Order 41, Rule 33. If the matter falls under
one or the other of the classes of cases mentioned
above if there are special circumstances, the court
might exercise its power under that rule in the
interests of justice but subject to such exceptions the
court will exercise a sound discretion in refusing to
grant relief under that rule to one who has
submitted to the decree. As held by the Privy Council
in '
Chokalingam Chetty v. Seethai Ache', AIR
1927 P. C. 252 (Q), the right which a decreeholder
has under a decree when the time for appealing
against it has expired is a valuable one and courts
must act with considerable caution and reserve
before depriving him of that right by invoking the
powers under Order 41, Rule 33. Having regard to
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these principles the question has to be determined
whether the exercise by the subordinate Judge of the
power under Order 41, Rule 33 is in the instant case
proper.”
In the case of Chaya & ors. ..vs.. Bapusaheb & ors.;
(1994) 2 SCC 41, the apex Court, inter alia, held that the power
under Rule 33 is based on the salutary principle that the appellate
Court should have power to do justice between the parties.
Paragraphs 14, 15 and 16, which are relevant, read thus:
14. This provision is based on a salutary
principle that the appellate court should have the
power to do complete justice between the parties.
The object of the rule is also to avoid contradictory
and inconsistent decisions on the same questions in
the same suits. For this purpose, the rule confers a
wide discretionary power on the appellate court to
pass such decree or order as ought to have been
passed or as the nature of the case may require,
notwithstanding the fact that the appeal is only
with regard to a part of the decree or that the party
in whose favour the power is proposed to be
exercised has not filed any appeal or cross objection.
While it is true that since the power is derogative of
the general principle that a party cannot avoid the
effect of a decree against him without filing an
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appeal or crossobjection
and, therefore, the power
has to be exercised with care and caution, it is also
true that in an appropriate case, the appellate court
should not hesitate to exercise the discretion
conferred by the said rule.
15. The present is one such case where
according to us, the High Court ought to have used
the discretionary power conferred by the rule. The
facts which have been sufficiently detailed above,
show that a customary right by a section of the
public was sought to be asserted against the entire
suit property in which rights and interests of all the
defendants were involved. The said right could not
be exercised partially in respect of only a particular
piece of land. The plaintiffs had gone to the Court
asking customary right in respect of the entire suit
property and had not specified any particular
portion of the property as the object of the exercise
of the said right. Apart from the fact that R.S. Nos.
975/1 and 975/2 were originally the joint family
property of all the defendantbrothers,
whatever the
inter se relation between them with respect to the
said property, various portions of both the survey
numbers were sold to the vendeedefendants.
The
plaintiffs had not made clear as to which of the
remaining portions of the suit land were the subjectmatter
of their customary right. Admittedly, on the
sold lands, vendeedefendants
had constructed
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houses. The Trial Court while granting the decree,
had excluded portions of the land which were
occupied by the residential houses. The Trial Court,
had further, not granted decree in respect of specific
portions of the suit property against specific
defendants. It had granted the decree generally
against the entire land minus that occupied by the
houses, and against all the defendants together.
Defendant 1 had preferred an appeal before the
District Court challenging the decree granted by the
Trial Court against the entire land viz., that
belonging to himself and to all the other defendants.
It is that appeal which was decided on merits by the
appellate court notwithstanding the death of
defendant 2 during the pendency of the appeal.
Thus, granting decree in favour of defendant I alone
when it was not claimed by the plaintiff in the
original suit, and based upon a common right
asserted against the entire land which was the relief
claimed by the plaintiffs, would in the present case
result in contradictory findings viz., that whereas
the customary right could not be claimed against
any portion of the suit property (that is the finding
of the High Court), the Trial Court's decree for
exercise of such rights would continue to operate
against a part of the land merely because the other
defendants had not preferred any appeal.
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16. We find that in the circumstances, this
was a fit case where the High Court ought to have
exercised its power under Order 41, Rule 34. In fact,
the nonexercise
of the power has resulted not only
in the miscarriage of justice but in contradictory
results in respect of the same subject matter and
based on the same alleged right. In this connection,
we may refer to decisions of this Court in Mahabir
Prasad v. Jage Rain and Others, [1971] 1 SCC 265;
Harihar Prasad Singh v. Balmiki Prasad Singh,
[1975] 1 SCC 212; Giani Ram v. Ramji Lal, [1969]
3 SCR 944 and Koksingh v. Smt. Deokabai,[1976]
1 SCC 383 to support our conclusion.”
12. In the light of legal position stated above, I think that
the lower appellate court has not kept in mind the fine distinction
between the provisions of Rule 22 and Rule 33 of Order 41 of the
CPC. Power conferred under Rule 33 being limited, has to be
exercised sparingly and where the appellate court finds that it is
necessary to do the complete justice between the parties, recourse
to this rule can be taken and even in the absence of respondents or
in the absence of crossobjection
the decree could be modified i.e.
the distinction between rule 22 and rule 33. I, therefore answer
question no.1 in the negative and question no.2 accordingly.
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13. As to question no.(iii):
As to the question of partition, the learned trial Judge
recorded the finding as under:
“16. AS TO ISSUE NO.5:It
is the contention of the plaintiff that
partition was taken place between Chhotibai and
her 3 sons in the year 1958 and suit property came
to the share of Chhotibai, the defendant has denied
this fact and inter alia contended that there was no
partition between legal heirs of Khushalsingh and
Chhotibai. According to the defendant no specific
portion is shown to be owned by each person in ay
of the record, therefore suit as framed is not
maintainable unless and until such for partition
and separate possession is filed.
17. During the course of argument the
learned counsel for the plaintiff has diverted my
attention towards the document Ex.No.36/1, it is
the public document. It is the extract of assessment.
According to him, it has been clearly mentioned in
the said document that partition between Chhotibai
and her 3 sons took place in the year 1958. I have
seen the said document. On perusal, it appears that,
in the column no.10 it has been clearly mentioned
that oral partition was taken place between
Chhotibai and her 3 sons in the year 1958. It is
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necessary to mention here the relevant content of
Ex.No. 36/1, which are as under:
“भूिमसवामी भाऊ िहशयाने छोतीबाई व ितचे
मुले कनहयै ािसगं , शामिसगं , पमे िसंग, हाचं या
आपसात तोडी वाटणया झालया पमाणे सन
१९५८ पासून"
Further, in the column no. 13. the area
of suit property has been mentioned. Thus Ex.No.
36/1 itself reflects limelight that partition was
taken place as contended by the plaintiff. Further it
is admitted position that defendant or Narmadabai
had or has not challenged the said partition till
today. Further, in the para No. 17 of the written
statement it is stated by the defendant that the legal
heirs of deceased Khushalsingh and Chhotibai were
occupying separate premises as suit property
according to their convenience. This is also one of
the ground to conclude that there was partition.
For a moment, if we considered that partition was
not taken place as contended by them, thus as
stated by defendant in written statement; it was
not necessary for Chhotibai and her sons to reside
in the separate premises. Thus, plaintiff has proved
that there was partition, and Ex. No. 36/1 also
supports to the case of plaintiff. Hence, I answer
this issue in the negative.”
As against the above finding, the lower appellate court
recorded the finding thus:
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“14. In the background of this position of law,
I proceed to decide the fact whether the suit house
was allotted to deceased Chhotibai in a partition.
Mr. Dotivalla, Advocate has invited my attention to
a certified copy of the register of a record of right
maintained by the office of Nazul Amravati and
contented that in the said extract (filed along with
the list of document at Exh.36), it has been
mentioned that in oral partition which took place in
1958 amongst three sons and the widow of deceased
Khushalsingh, the suit plot has come to the share of
the widow of Khushalsingh i.e. Chhotibai. He has
argued that the said certified copy has not been
exhibited but since it is public document it can be
read in evidence. He has rightly argued so. A public
document can be read in evidence and therefore I
will make a reference to the said document while
deciding the fact of partition and the allotment of
the suit plot to the share of Chhotibai. The plaintiff
and his father Premsingh have deposed that the suit
plot came to the share of Chhotibai in a partition.
At the time of partition, the plaintiff was not born.
So, obviously his knowledge about the partition is
hearsay one. The father of the plaintiff has deposed
that after the death of his father, the partition of the
estate left by his father Khushalsingh had taken
place amongst him, his two brothers and mother
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Chhotibai. In the partition, a plot admeasuring 10
X 50 ft. (probably out of plot no. 3/3) was allotted
to his mother Chhotibai. In the crossexamination
this witness has admitted that the partition had
taken place in 1958. The terms of partition were
reduced to writing. In the partition, he had received
a field towards his share. He has admitted that he
has not filed the said partition deed as he did not
feel it necessary to produce the partition deed. This
is what the evidence which the plaintiff has adduced
in report to the partition.
15. Obviously the plaintiff was not born
when the partition alleged to have been taken place.
So, his evidence is not helpful to establish the fact of
partition. However, the evidence of his father is
material. According to his evidence when the
partition had taken place, a deed was reduced to
writing. From his crossexamination
it is more than
evident that the deed of partition is in existence. He
has not produced the said deed during trial. In fact,
the partition deed would be the best material to
prove the fact of partition. Thus, the best evidence
to prove the partition has been withed. His evidence,
as regards the mode of partition is contrary to the
document which has been relied upon by the
plaintiff. I have already mentioned earlier that Mr.
Dotivalla Advocate relied upon the extract of
property register in which there is a mention that
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the suit plot has come to the share of Chhotibai in
an oral partition which took place in 1958. Thus,
the document relied upon by the plaintiff as regards
the mode of partition is totally in conflict with the
evidence of the father of the plaintiff, who claims
that the partition deed was reduced to writing. The
evidence of father of plaintiff carries much weight as
regards the fact of partition since he was one of the
party to the partition. According to his evidence,
partition deed was prepared. If that is so, then the
entry made in extract of property register that an
oral partition had taken place is unreliable. Above
all, the entries made in the property register are
made for fiscal purposes. Such entries do not confer
the title on the person concerned. The said entries at
the most go to establish the possession of the person
concerned over the immovable property. Therefore,
the said extract is of no use to establish the fact of
partition and the allotment of the plot to the share
of Chhotibai.
16. When the father of the plaintiff claims
that the partition was reduced to writing, then the
said partition deed ought to have been produced by
the plaintiff which has not been produced and
therefore the only irresistable conclusion which
could be drawn is that the plaintiff has failed to
prove the fact that there was a partition of the estate
of Khushalsingh and in the parittion, the suit plot
was allotted to deceased Chhotibai. Hence, I answer
this point in negative.”
14. I have carefully perused the pleadings of the parties in
entirety and also evidence of witnesses and the most importantly,
the document filed with list Exh.36
i.e. the entry of record of right
maintained by office of Nazul, Amravati. The lower appellate
court has accepted that the said document could be read in
evidence being a public document but there appears to be
omission in accepting the same. Be that as it may, the same has
been admitted in evidence by the lower appellate court and he
also relied on the same. Upon analysis of the reasons given by the
two courts as above which are contrary, I am in full agreement
with the reasons given by the learned trial Judge on the issue of
partition and find that the reasons given by the lower appellate
court are perverse and cannot be countenanced. The lower
appellate court has chosen to rely on the stray admission given by
Premsingh that the partition was reduced to writing and it has
made a capital out of it. In the first place, reading of the plaint
and written statement shows that it was nobody's case that there
was a partition reduced to writing. On the contrary, the case of the
plaintiff was that the three brothers and Chhotibai had made oral
partition in 1958 and para 17 of the written statement supported
the said version as relied upon by the trial Judge. The most
important evidence about the entry of oral partition in the record
of the year 1958, maintained by the Nazul office clearly shows
that there was oral partition in the year 1958 and Chhotibai got
her share in the suit property. In the absence of any pleadings
about document of partition in existence and the case of the
plaintiff being the one of oral partition, the respondentdefendant
was not entitled to bring such type of stray admission about
partition by exception of document. In fact, case of the defendant
was that there was no partition at all. Thus, on the strength of
document, old Nazul entry of 1958, which should have been
exhibited, vide list Exh.36
list, on preponderance of probabilities
coupled with para 17 of the written statement and oral evidence of
plaintiff's father Premsingh, the trial court was justified in
returning the affirmative finding in respect of oral partition. The
reason given by the lower appellate court by acting on the stray
admission is perverse.
15. The second reason given by the lower appellate court is
that the plaintiff relied on the document of partition. That is not
correct. On the contrary, his case was of oral partition having
taken place and duly recorded with the Amravati Municipal
Corporation.
16. The next reason given by the lower appellate court that
the entry in the Nazul record or Corporation is for fiscal purpose
and did not confer the title. The reason is clearly faulty. The
question is whether the oral partition pleaded by the plaintiff with
the supportive old mutation entry by the Nazul department in the
year 1958 was proved and not whether Nazul entry would confer
the title. If proved, such a partition as is the settled legal position,
does not require registration. The lower appellate court failed to
make out a distinction about the importance of of Nazul entry in
respect of oral partition duly recorded subsequent to the partition.
The said nazul document has very high probative value and in the
absence of any challenge to the same from the year 1958 and even
in the present suit, the lower appellate court was not justified in
rejecting the said document for the said reason. I, therefore, hold
that the finding about oral partition, reversed by the lower
appellate court is perverse. Hence, I answer question no. (iii) in
the affirmative.
17. As to question no. (iv):
Insofar as the proof of will is concerned, the trial Judge
gave following reasons for accepting the will, which I quote as
under:
“15. …..According to the learned counsel for
the plaintiff, it has come on record that witness
Shankar has on and witness Ismailali has one
daughter who is residing at Akola. The plaintiff has
neither examined son of Shankar nor daughter of
Ismailali, therefore, signature of witnesses not
proved as per section 69 of the Indian Evidence Act.
I do not agree with this submission made by the
learned counsel for the defendant because to prove
the signature of witness Ismailali the plaintiff has
examined one witness, who is acquainted with
Ismailali. Because it has come in his evidence that
Ismailalsi was serving as Assistant teacher when he
was service as head Master. From the version of this
witness, it can be concluded that he has many
occasions to see the signature of Ismailali being
Head Master of the School. Therefore he is reliable
witness to prove the signature of Ismailali as such,
though plaintiff has not examined the son of
Shankar and daughter of Ismailali, it does not make
any difference. Furtehr PW 2 has clearly stated in
his deposition that Vendor Shri Bore wrote the
contents of will and contents were read over. It has
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also come in his evidence that witnesses put their
signatures. The evidence of the PW No. 2 is not
shaken in the crossexamination
in this regard.
Thus in view of above discussion, I hold that
plaintiff has rightly p roved will Ex.No. 48 and on
the basis of will, plaintiff become owner of suit
property. Hence, I answer this issue in the
affirmative.”
As against above, the lower appellate court recorded
the following finding of fact in relation to the will:
“19. The plaintiff has deposed that his grand
mother Chhotibai has bequeathed the suit house to
him by executing a will. PW No.2 Premsingh, who
is the father of the plaintiff has deposed that in the
year 1966, when the plaintiff was aged about four
years, his mother has bequeathed the suit house to
the plaintiff by executing a will. He was present at
the time of execution of will. The will was read over
to deceased Chhotibai, who put her thumb marks
on the will. One Shankar Mama and Ismail Ali
signed the will as attesting witnesses and then the
will was presented for registration. It was
registered. This witness has deposed that the
attesting witnesses to the will are dead and the
scribe of the will is also dead. PW No.3 Usman
Khan has deposed that he had attesting witnesses
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Ismail Ali worked together as a teacher in the school
and therefore he acquainted with the handwriting
and the signature of attesting witness Ismail Ali.
This witness has identified the signature of attesting
witness Ismail Ali on the will at Exh.48.
Commenting upon the evidence of witness Usman
Khan, Shri Babrekar, Advocate has argued that
there is nothing on record to show that Usman
Khan worked with attesting witness Ismail Ali and
therefore the so called claim of Usman Khan that
he acquainted with the signature of Ismail Ali is not
genuine. Further, the daughter of Ismail Ali is
alive, who is the best witness to identify the
signature of Ismail Ali. The trial judge has accepted
the evidence of Usman Khan and held that from the
evidence of Usman Khan, it can be said that Ismail
Ali singed the will as an attesting witness. The
point in question is whether there is material on
record to show that both the attesting witnesses on
will are dead. The death certificates of the attesting
witnesses by name Shankar Mama and Ismail Ali
are not forthcoming. So, in the absence of these
facts, it is very difficult to accept the evidence of
Usman Khan and the father of the plaintiff that the
attesting witnesses on the will are dead. Assuming
for a moment that the attesting witnesses are dead,
the next question arises whether the signature of
attesting witness on the will has been duly proved
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through the evidence of Usman Khan. When the
attesting witnesses are dead or cannot be found,
then it has to be proved that the attestation of one
of the attesting witness is in his handwriting.
Whenever a Court has to form an opinion, as to the
person by whom any document was written or
signed, the opinion of any person acquainted with
the handwriting
of the person by whom it is
supposed to be written or signed is a relevant fact.
Therefore, it has to be seen whether Usman Khan is
acquainted with the signature of Ismail Ali. It may
be noted here that the evidence as regards the
acquaintance with the handwriting
of the person
by whom the document is supposed to be written or
signed carries little value. Although Usman Khan
has claimed that he and Ismail Ali worked as a a
teacher in one and the same school,there is nothing
on record to show that they worked together. Even
the father of plaintiff who claims to be present at
the time of execution of will does not state that
Ismail Ali was a teacher. Usman Khan, who has
identified the signature of Ismail Ali was aged about
85 when his evidence was recorded. He has
admitted in his crossexamination
that since last
five years his eye sight has become weak. In view of
the advanced age of Usman Khan and his impaired
eye sight, his evidence that the signature on the will
is of Ismail Ali is of a weak character and as such it
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will not be safe to to rely upon the evidence of
Usman Khan as regards the identification of
signature of Ismail Ali as an attesting witness on the
will at Exh.48. Therefore, I find that the plaintiff
has failed to establish the attestation of the Will.
Above all, the daughter of Ismail Ali, who is the best
person to identify the signature of Ismail Ali, has
not been examined by the plaintiff. So, the best
witness to prove the signature of attesting witness
has been withheld.
Above all, the name of Usman
Khan was not figured in the witness list filed on
behalf of the plaintiff. At the eleventh hour Usman
Khan has been examined by the plaintiff. It has
been held by the Apex Court in 1993 B.C.J. at page
782 “Thakur Sen Negi..vs..Dev Raj Negi” that the
examination of a witness other than the witnesses
cited in the witness list is at the risk of party
concerned which affects the quality of evidence. As
far as this case is concerned, Usman Khan was not
cited as a witness, but still he was examined and
therefore the evidence of Usman Khan as regards
the identification of the signature of Ismail Ali on
the will at Exh.48 has shaken.
20. Thus, for all these reasons I find that the
evidence of Usman Khan is not worthy of reliance.
Consequently, the plaintiff has failed to prove the
attestation of the will at Exh.48. Apart from this,
one of the disturbing feature of the will is that the
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said will has disinherited the sons of deceased
Chhotibai. It is an admitted fact that deceased
Chhotibai had three sons and three daughters. All
of them have been disinherited in the will without
any reason. It has been held by the Apex Court in
A.I.R. 1958 Supreme Court at page 2861
“Gurudian Kaur and ors...vs..Kartar Kaur and ors”
(relied upon by Mr. Babrekar advocate) that when
some of the natural heirs are disinherited in the will
without any reason, then it is a suspicious
circumstance. The sons and the daughters of
deceased Chhotibai have been disinherited in the
will without any reason and therefore genuineness
of will has come under the clouds of doubt.
21. Apart from this, it appears that the
father of the plaintiff has taken interest in the
matter of execution of will. He says that at the
relevant time deceased Chhotibai was staying with
him. It appears that the remaining sons of
Chhotibai were residing separately from Chhotibai.
As per the version of the father of plaintiff,
Chhotibai was staying with him. So, in the above
circumstances, it can be stated that the father of the
plaintiff has taken lot of interest in the matter of
getting the will executed in favour of his son and
therefore the will is lacking voluntary character.”
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18. Having given conscious attention to the above reasons,
I am of the opinion, that the finding recorded by the trial Judge is
legal, correct and proper while finding recorded by the lower
appellate court is perverse. The will in question is a registered
document. Chhotibai was residing with Presmsingh and,
obviously, after partition throughout her life while other brothers
resided separately. Merely because Chhotibai did not give any
share in the suit property to the other sons, the will could not be
rejected on the said alleged suspicious circumstance. The reason is
that all the brothers and Chhotibai had separated way back in the
year 1958 and were enjoying their respective shares. Admittedly,
Chhotibai was being taken care of by Premsingh and was residing
with him throughout her life. She was knowing that her sons were
given their respective shares. Premsingh served her till her death
and she resided with Premsingh. There was nothing wrong on her
part or it cannot be said to be a suspicious circumstance that she
bequeathed her share only to the son of Premsingh. On the
contrary, it appears to be natural for her in the above
circumstances that she gave her share by will to the plaintiffPremsingh's
son.
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19. The second reason given by the lower appellate court is
that the attesting witness Ismail Ali's signature and handwriting
should have been got identified from daughter of Ismail Ali. In my
opinion, the reason is absurd. In this context, it will be helpful to
look into Section 69 of the Evidence Act, which reads thus:
“69. Proof where no attesting witness found:
If no such attesting witness can be found,
or if the document purports to have been executed in
the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his
handwriting, and that the signature of the person
executing the document is in the handwriting of that
person.”
Perusal of the above provision clearly shows that it is
not necessary to examine the attesting witness, if no such attesting
witness could be found. Obviously, if attesting witness is dead, the
question of producing such a witness before the Court would not
arise. The further requirement, therefore, is that attestation of one
attesting witness, muchless, his handwriting, should be proved.
20. I have read the evidence of Usmankhan (PW3), who
was Head Master in the school where Ismail Ali was Assistant
Teacher for number of years. Though, Usmankhan was aged
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about 85 years at the time of recording evidence, his testimony has
not at all been shaken nor he has anywhere stated that he did not
know signature and handwriting of Ismail Ali. On the contrary, he
has boldly stated that the signature and handwriting on the WillExh.
48
was of Ismail Ali. In fact, Usmankhan was the only proper
witness for identifying the handwriting and signature of Ismail Ali
and not his daughter since Ismail Ali served in the same school
under him for number of years. Usmankhan stated that he was
acquainted with the signature and handwriting of Ismail Ali. One
fails to understand as to why the lower appellate court disbelieved
it only because he was an aged old person. The next reason about
name of Usmankhan not to be found in the list of witnesses is
equally wrong and illegal because when he was brought as
witness, none objected. At any rate, it is not case of respondentdefendant
that Usmankhan was not the Head Master of the school
in which Ismail Ali was working under him as his Assistant
Teacher. The last reason given by the lower appellate court about
Chhotibai residing with Premsingh and the plaintiff and, therefore,
father of the plaintiff had taken interest in getting the will
executed, is another weak reason and I do not agree with it.
Hence, I hold that the finding of the lower appellate court about
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the will is perverse, while the one recorded by the trial Judge is
legal and correct. Hence, I answer question no. (iv) in affirmative
and in the light of provision of Section 69 of the Evidence Act,
hold that the Will was proved.
21. As to question no. (v):As
stated by me earlier, in the trial court, the plaintiff
succeeded on all the issues on merits but for the issue of limitation
and fortunately, the lower appellate court reversed the said
finding in favour of the appellant. I have checked up the finding
recorded by both the courts below and I find that the finding
recorded by the lower appellate court in paragraph 23 of the
judgment on the point of limitation is legal, correct and proper.
There is no crossobjection
or challenge to the said finding from
the respondent. I quote paragraph 23 of the judgment of the
lower appellate court, which reads thus:
“23. The point in question is whether the
finding of the trial judge that the suit is barred by
limitation in view of Section 27 of the Limitation
Act is sustainable. Section 27 of the Limitation Act
says about the extinguishment of right to property.
Section 27 of the Limitation Act bars the remedy
and not the right. Section 27 of the Act does not
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confer the title on the defendant, but merely
extinguishes the title of the plaintiff. The point in
question is whether the title of the plaintiff to the
suit house which he has set up on the basis of the
Will has been extinguished? The answer is no. Once
the plaintiff has come up with a case that he has
become owner of the suit house on the basis of will
immediately on the death of Chhotibai, then merely
because he has filed a suit in 1992, does not by
itself extinguish the title so set up by him. Nowhere
the defendant has claimed that she has become
owner of the suit house by virtue of adverse
possession. But even otherwise the plea of adverse
possession cannot be validly maintained by her
since she claimed that she is staying in the suit
house as coheir.
The trial judge has totally
forgotten the position of law that the period of
limitation for filing the suit is always governed by
the articles of the Limitation Act and not Section.
Thus, in the above circumstances, I find that the
trial judge that the suit commenced by the plaintiff
is barred by limitation absolutely perverse and
therefore it needs to be set aside.”
In addition, it would be appropriate to see section 27 of
the Limitation Act. Section 27 of the Limitation reads thus:
27. Extinguishment of right to property.—At the
determination of the period hereby limited to any
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person for instituting a suit for possession of any
property, his right to such property shall be
extinguished."
Thus, Section 27 of the Limitation Act obviously will
have no application in the instant case which is clear from the
mere reading thereof. The said section has absolutely no
application in the present case. Hence, I answer the question no.
(v) in the affirmative.
22. To sum up, the instant appeal must succeed. I,
therefore, pass the following order:
O R D E R
(i) Second Appeal No. 391/1999 is allowed
with costs.
(ii) Judgment and decree dated 14.11.1994
passed by 5th Jt. Civil Judge Jr. Dn. Amravati in
Reg. Civil Suit No. 641/92 and judgment and
decree dated 20.07.1999, passed by Addl. District
Judge, Amravati in Reg. C. A. No. 315/1994 are set
aside.
(iii) Reg. C. S. No. 641/1992 filed by the
appellant is decreed.
(iv) The defendant shall deliver possession of
suit property viz.; plot no. 3/3 during 17C,
area 10
X 50 on which there was dilapidated house which
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was numbered as 421 of Ward 23, having
boundaries: to the North of the plot, Chawl of
Dayaram Teli, to the South there is a plot of
Premsingh, to the East Bypass
highway and to the
West, the plot no. 3/2 of Premsingh, after removing
the illegal structure erected by the defendant, within
three months.
(v) Decree be drawn up accordingly.
JUDGE
kahale
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