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2009(4) Supreme 711
SUPREME COURT OF INDIA
(From High Court of Himachal Pradesh)
Dalveer Bhandari and H.L. Dattu, JJ.
Shyam Lal @ Kuldeep — Appellant
versus
Sanjeev Kumar & Others — Respondents
Civil Appeal No. 2888 of 2001
Decided on : 15-04-2009
A.I.R. 1914 Upper Burma 36; (1904) 7 Bombay Law Reports 95; 1941, 1 QB 444; 1947 All LJ 569; ILR 1960 Cuttack 23; AIR 1954 SC 1761; AIR 1971 SC 2352; AIR 1978 SC 1557 : (1978) 3 SCC 537 – Relied upon.
(b) Indian Evidence Act, 1872 – Section 112 – Presumption of legitimacy of children – Laws culled out. (Para 18)
AIR 1993 SC 2295 – Relied upon.
(c) Indian Evidence Act, 1872 – Section 112 – If a man and woman live together for long years as husband and wife then a legal presumption arises as to the legality of marriage existing between the two – Such a presumption is however rebuttable. (Para 19)
(1996) 7 SCC 681; (1994) 1 SCC 460; AIR 2001 SC 2226 – Relied upon.
(d) Indian Evidence Act, 1872 – Section 74 – Mode of proof of a document has to be objected before it is received in evidence and marked as exhibit – Even otherwise, a public document such a school leaving certificate is admissible per se without proof. (Para 25)
1997(1) P.L.R. 735 – Cited with approval.
(e) Hindu Succession Act, 1956 – Sections 4 and 30 – A male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ ancestral property. (Para 30)
1997 (2) Hindu L.R. 306 – Relied upon.
1992 (1) Sim. L.C. 4021 – Referred.
Facts of the case :
1. The appellant herein, who was the plaintiff before the Trial Court, filed a suit for declaration to the effect that mutation number 1313 dated 20.2.1988 in favour of defendant nos.1 and 2 was illegal, null and void.
2. The plaintiff and defendant nos.3 and 4 are the sons and defendant nos.5 and 6 are the daughters of late Shri Balak Ram. They were joint owners and in possession of the estate of the deceased Balak Ram in equal shares. Balak Ram died on 31.10.1987. After his death, his estate came to be mutated in favour of his grandsons, defendant nos.1 and 2, on the basis of a Will executed on 4.12.1978, vide mutation number 1313 dated 20.02.1988.
3. According to the plaintiff, the estate was inherited by the deceased Balak Ram from his father Mohar Singh and as such the same was ancestral in his hands. Late Balak Ram was governed by the Hindu Law and Customs in the matter of alienation and succession whereby he could not bequeath the ancestral property. It was further pleaded that no Will was executed by the deceased Balak Ram during his lifetime.
4. The Will, if any, was forged and fabricated and ultimately the mutation of inheritance sanctioned on 20.2.1988 was illegal, null and void.
5. The Trial Court decided issues nos.1, 2 and 10 against the plaintiff and issues no.3, 7 and 9 against the defendants. The suit of the plaintiff was dismissed by the Trial Court on 27.8.1996.
6. The plaintiff, aggrieved by the said judgment filed an appeal before the learned District Judge, Solan who partly allowed the said appeal on 11.9.1997. The plaintiff and defendant no.4 were held to be the sons of deceased Balak Ram. The property in the hands of deceased Balak Ram was held to be ancestral to the extent of his share in the coparcenary property.
7. High Court allowed the appeal of the respondents and set aside the judgment and decree passed by the learned District Judge, Solan.
Finding of the Court :
No intereference is called for.
Result : Appeal dismissed.
JUDGMENT
Dalveer Bhandari, J.—
1. This appeal is directed against the judgment dated 21.09.2000 of the High Court of Himachal Pradesh at Shimla in Regular Second Appeal No.10 of 1998 whereby the High Court allowed the appeal of the respondents and set aside the judgment and decree passed by the learned District Judge, Solan.
2. The appellant herein, who was the plaintiff before the Trial Court, filed a suit for declaration to the effect that mutation number 1313 dated 20.2.1988 in favour of defendant nos.1 and 2 was illegal, null and void. The plaintiff and defendant nos.3 and 4 are the sons and defendant nos.5 and 6 are the daughters of late Shri Balak Ram. They were joint owners and in possession of the estate of the deceased Balak Ram in equal shares. Balak Ram died on 31.10.1987. After his death, his estate came to be mutated in favour of his grandsons, defendant nos.1 and 2, on the basis of a Will executed on 4.12.1978, vide mutation number 1313 dated 20.02.1988.
3. According to the plaintiff, the estate was inherited by the deceased Balak Ram from his father Mohar Singh and as such the same was ancestral in his hands. It is further alleged by the plaintiff that the deceased Balak Ram’s Hindu Undivided Family (HUF) consisted of himself, the plaintiff and the defendants. Late Balak Ram was governed by the Hindu Law and Customs in the matter of alienation and succession whereby he could not bequeath the ancestral property. It was further pleaded that no Will was executed by the deceased Balak Ram during his lifetime. The Will, if any, was forged and fabricated and ultimately the mutation of inheritance sanctioned on 20.2.1988 was illegal, null and void.
4. The respondents herein, who were defendants in the Trial Court, while resisting the suit admitted that the deceased Balak Ram had inherited the property from his father Mohar Singh. They, however, denied that such property was ancestral in the hands of the deceased. They also denied that the deceased was governed by the customs in the matter of alienation and succession. They pleaded that the deceased Balak Ram on 4.12.1978 was in a sound disposing mind when he had executed a valid Will in favour of defendant nos.1 and 2. The Will was registered on 23.12.1987 in the office of Sub-Registrar.
5. It was also submitted that Smt. Durgi, wife of deceased Balak Ram, had deserted her husband during her lifetime while he was in service at Chandigarh. She developed illicit relations with one Mehar Singh. The plaintiff and Phanki Ram, defendant no.4 were born to Smt. Durgi from the loins of the said Mehar Singh. The Trial Court framed the following issues:-
“1. Whether the mutation no.1313 dated 20.2.88 is illegal, null and void and not operative against the plaintiff as alleged? OPP
2. Whether the plaintiff and defendant nos.3 and 6 are joint owners in possession of the suit land as alleged? OPP
3. Whether there is a validly executed will in favour of defendant nos.1 and 2 as alleged? OPD
4. Whether the plaintiff has no cause of action to file the present suit? OPD
5. Whether the suit is not maintainable as alleged? OPD
6. Whether the suit is not properly valued for purpose of court fee and jurisdiction. OPD
7. Whether the plaintiff is estopped from filing the present suit as alleged. OPD
8. Whether the suit is within time? OPD
9. Whether the suit is bad for want of better particulars, as alleged? OPD
10. Whether the alleged will in favour of defendants 1 and 2 is the result of fraud etc. as alleged?” OPP
6. The Trial Court decided issues nos.1, 2 and 10 against the plaintiff and issues no.3, 7 and 9 against the defendants. Consequent upon such findings, the suit of the plaintiff was dismissed by the Trial Court on 27.8.1996.
7. The plaintiff, aggrieved by the said judgment filed an appeal before the learned District Judge, Solan who partly allowed the said appeal on 11.9.1997. The plaintiff and defendant no.4 were held to be the sons of deceased Balak Ram. The prope
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