Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur. Vs. Smt. Chhoti & Ors.
EmailAppeal: Civil Appeal No. 1351 (N) of 1973
(From the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal no. 201 of 1966.)
(From the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal no. 201 of 1966.)
Petitioner: Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur.
Respondent: Smt. Chhoti & Ors.
Apeal: Civil Appeal No. 1351 (N) of 1973
(From the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal no. 201 of 1966.)
(From the judgment of the Rajasthan High Court dated March 14, 1973 in S.B. (Civil) 2nd Appeal no. 201 of 1966.)
Judges: SABYASACHI MUKHARJI, K. JAGANATHA SHETTY & A.M. AHMADI, JJ.
Date of Judgment: Dec 01, 1989
Head Note:
CODE OF CIVIL PROCEDURE, 1908:
O.1, R.8 – Representative suit – Court’s permission is mandatory – However, any member of a community may successfully bring a suit to assert his right in community property – Such a suit need not comply with the requirements of O.1, R.8.
Held:
… For a representative suit, the court’s permission under order 1 Rule 8 of the Code of Civil Procedure is mandatory. One does not know whether any such permission was obtained. The pleading in that suit or the order obtained under Order 1 Rule 8 has not been produced … In the absence of necessary material the conclusion one way or the other as to the nature of the previous suit will not be justified…It must be stated that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need not comply with the requirements of Order 1 Rule 8. The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category. Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser. They brought the suit to recover possession from Bhonrilal. The suit was decreed. The rival title claimed by Bhonrilal by adverse possession was negatived. So longas that decree operates it would be futile to decree the present suit. The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated.(Paras 13 and 14)
Cases Reffered:
1. Smt. Indu Bala Bose & Ors. v. Manindra Chandra Bose & anr.,1982 (1) SCC 20.
2. Rani Purnima Devi & Anr. v. Kumar Khagendra Narayan Dev & Anr., 1962 (3) SCR 195.
3. H.Venkatachala Iyengar v. S.N.Thimmajama & Ors., 1959 Supp. (1) SCR 426.
4. Mt. Biro v. Atma Ram & ors., AIR 1937 PC 101.
2. Rani Purnima Devi & Anr. v. Kumar Khagendra Narayan Dev & Anr., 1962 (3) SCR 195.
3. H.Venkatachala Iyengar v. S.N.Thimmajama & Ors., 1959 Supp. (1) SCR 426.
4. Mt. Biro v. Atma Ram & ors., AIR 1937 PC 101.
JUDGEMENT:
K.JAGANNATHA SHETTY, J:
1. This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14, 1973 in S.B.(Civil) 2nd Appeal NO. 201 of 1966.
2. The case has a long history. It is concerned with a garden (baghichi) with temples of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur. The local Darjees (Tailors) claim that it is their community property. According to them it is known as ‘Baghichi Darjian’ since it belongs to Darji community. The property however, was the subject matter of several litigations. It was claimed by different persons at different intervals on different grounds. One Narayan was admittedly ‘Pujari’ of the Temples. There was allegation that narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux. The Panchas of Darjian community filed a suit for cancellation of the sale -deed and possession of the baghichi. The suit was also for declaration of the right to administer the trust of the temples and the other properties. Narayan was the first defendant in that suit. He did not contest the suit. He was, however, summoned and his statement was recorded on July 8, 1926, wherein he admitted that he was only the pujari of the temples. The other defendants in the suit set up rival title court dismissed the suit but on appeal the District Judge decreed it. That decree was affirmed by the former Chief Court, Jaipur by judgment Ex. 48 dated September 15, 1928.
3. Thereafter, for about 23 years there was no problem and there was no rival claimant to the property. But the dispute started after the death of Narayan. His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi. It appears that Bhonrilal after the death of his father was acting as pujari of the temples. The Darjian Community authorised Kalyan Singh, the appellant herein, as well as one Khawas Suraj Narayan to bring an action for ejectment of Bhonrilal. In 1961 they instituted a suit for his ejectment. In that suit Bhonrilal admitted the Panchayat’s right to the baghichi but raised a number of other pleas including his title by adverse possession. In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community. In 1968 the appeal against that decree was dismissed by the senior civil judge, Jaipur City. Bhonrilal preferred Second Appeal No. 80 of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs. 26/- per month. On September 15,1960, the High Court dismissed the second appeal. Thus the title of the Darjee community in respect of the baghichi was again recognised.
4. Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation. On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples. In this appeal we are concerned with the right claimed by him. The suit was primarily against the present appellant Kalyan Singh and Suraj Narayan, since deceased. Bhonrilal was also impleaded as the third defendant. Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973 (about 1916 A.D.). It was further alleged that the baghichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin. Raghunath constructed the temple of Sri Satyanarainji and other buildings. Raghunath has only one son called Gaurilal and he was issueless. Gaurilal executed a will giving all his properties to Ganga Ram. It was alleged that the earlier suit against Bhornilal was collusive between the parties. With these allegations, Ganga Ram prayed for the following reliefs:
“(a) the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property. The plaintiff is the owner of the property mentioned in para No. 1. The decree which the defendant Nos.1 and 2 has obtained on 20.8.1956 against the Defendant No. 3 and was upheld by the Senior Civil Judge on 6.2.1958, is null and void against the claim of the plaintiff.
5. The appellant the first defendant in the suit denied plaintiff’s title to the baghichi. He also denied the tile of Bhagala and Girdhari. It was maintained that the baghichi was community property od Darjees and Narayan was only a ‘pujari’ of the temples. Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari. Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal. In view of those litigations and judgments rendered therein, it was claimed that the present suit was barred by principle of res judicata. It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity.
6. The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property. It was also declared that the plaintiff is not bound by the judgment and decree dated September 15, 1923 of the Chief Court of the erstwhile State of Jaipur. But no reference was made to the judgment and decree obtained in the suit against Bhonrilal. No declaration was given that it was not binding on the plaintiff though the relief was specifically sought for . Perhaps the plaintiff did not press that point. Kalyan Singh and Suraj Narayan appealed to the District Court. The learned District Judge dismissed the appeal. He also did not refer to the judgment in the suit against Bhonrilal. He only examined the validity of the said Sale deed and will and held that they were proved to have been executed. The defendants approached the High Court in Second Appeal no. 201/41.Before the High Court, they sought to produce additional evidence. They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit. The High Court accepted the judgment of the Chief Court of Jaipur State, but rejected the Statement of Narayan.
7. During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo. Ganga Ram also died and his wife and son were brought or record as his legal representatives.
8. The principal question argued before the High Court related to the validity of sale deed (Ex.4) which formed the foundation of Gangaram’s title to the suit property. The High Court rejected both the documents. The sale deed Ex. 3 was rejected as inadmissible in evidence. The will Ex.4 was disregarded in view of the suspicious circumstances surrounding its execution. These conclusions would have been sufficient for allowing the appeal and dismissing the suit. But the High Court did not do that and instead rounded off the discussion as follows:
“The plaintiff is undoubtedly in possession of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal. Apart from everything, the suit does not seem to have been filed against kalyan Singh and another in a representative capacity in accordance with Order 1 Rule 8 Civil Procedure Code. There was no application for permission to sue them in their representative capacity. Therefore, in spite of my having reached the conclusion regarding the document Ex. 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litigation against Kalyan Singh and another in their individual capacity was a fruitless exercise.”
9. Kalyan Singh – the defendant has now appealed challenging the decree of the High Court.
10. Counsel for the appellant has a two fold contention in the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individuals. The High Court instead of holding that the plaintiff’s suit was a fruitless exercise, ought to have dismissed the suit. Secondly, it was urged that the High Court after discarding the sale deed Ex.3 and will Ex.4 ought to have non-suited the plaintiff since there is no other material whatever to support his title to the property.
11. Normally, these contentions would have been accepted without much discussion, but we have to consider the submissions of counsel for the respondents. He challenged the correctness of the findings on all material points. It is, therefore, necessary to examine the judgment in greater detail.
12. We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community. It was argued for the respondents that it was only a suit on behalf of the ‘Panchayat Darjian” and not a representative suit on behalf of the Darjee community. Our attention was drawn to the trial court order dated November 16,1962 in the present suit. Thereunder the trial court has rejected an application for amendment of written statement. It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhornilal was not in a representative capacity. But the Court made that observation only on perusing the affidavits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit. In fact, the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community. The view expressed in the order dated November 1962 is therefore, unacceptable.
13. Counsel for the appellant however, relied upon statements from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community. Ex. A- 2 is the judgment of the trial court. It begins with a sentence: “This is a representative suit by the plaintiffs Kalyan SIngh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the baghichi.” But this statement may not held counsel for the appellant, since the suit was said to be on behalf of the ‘Panchayat Darjian’ and not Darjee community. Ex.A-4 is the High Court judgment in the second appeal arising out of that suit. There the High Court has stated: “That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community.” Here again we do not find much support to the appellant. The suit might have been instituted by representatives of the Darjee community, but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit, the court’s permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory. One does not know whether any such permission was obtained. The pleading in that suit or the order obtained under order 1 Rule 8 has not been produced. There is no other evidence to support the contention of either of the parties. In the absence of necessary material the conclusion one way or the other as to the nature of the previous suit will not be justified.
14. But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonrilal. It must be stated that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need not comply with the requirements of Order 1 Rule 8. The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category. Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser. They brought the suit to recover possession from Bhonrilal. The suit was decreed. The rival title claimed by Bhonrilal by adverse possession was negatived. So long as that decree operates it would be futile to decree the present suit. The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated.
15. The validity of the will may now be considered. On this question, the High Court said:
“Having read the evidence of these witness I am satisfied that according to the ordinary standard of providing a document the document Ex.4 can be said to have been proved. However, there was two disturbing elements surrounding the execution of the will. The first striking feature of this will is that even though the wife of Gaurilal was living at the time as she has survived him, no provision whatsoever has been made regarding her by Gaurilal in the alleged will Ex.4. Then the second striking feature is that even though litigation has been going on almost for years this will had not been referred to by anyone. In the first suit Narain was a defendant. He had not contested the suit and the proceedings remained ex paret against him. However, he was called by the Court and his statement was recorded. The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi. Then subsequently when suit was filed by the Darji community against Bhornilal, no reference came to be made to this will Ex.4 . Learned counsel for the respondents, as I have already observed, suggested that Narain or Bhornilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them. The argument, no doubt,looks attractive, but if it is examined in the light of none other than the statement of Gangaram himself it cannot stand the scrutiny. Gangaram had referred to the earlier litigation in the plaint, but when he entered the witnesses box he had taken a somersault. He was asked whehter he was aware of the previous litigation and he said, he did not know of it. He was then questioned with reference to para 5 of the the plaint as to how the facts had been mentioned by him therein and he kept mum and has no answer. He also admitted that it was Narain who had given him the document, Ex.4 some 5 or 7 years after the death of Gaurilal i.e. some 30 or 35 years back. In that situation there was no mention of the alleged will in any of the two previous suits. It is also remarkable that even upto the High Court Bhonrilal has asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide Ex. A.-7.
xxxxx xxxx xxxxxxx
The will is, therefore, not free from suspicion and it has not been dispelled. My conscience in this regard is not satisfied and therefore, I am unable to hold that Ex. 4 was the last will of Gaurilal in favour of Gangaram.”
16. Counsel for the respondents however, urged that the plaintiff has proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court. We were referred, in particular, to the evidence of plaintiff PW 3, PW 4 and Sham Sunder PW 7. We have perused their testimony and we are of the opinion that it is far from satisfactory. The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him. Ramdeo claims to be the attesting witness to the will. He has stated that the plaintiff was 10-11 years old when the will was executed. But the plaintiff himself has deposed that he was then a boy of 2-3 years. Ramdeo has given his age as 55 years when the deposed in the court on January 5, 1962. If we go by that age Eamdeo must have been a boy of 9 years when he attested the will in 1916. Sham Sundar claims to be the scribe of the will. He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them. He has not even referred to Ramdeo as an attesting witness.
17. It was said that the plaintiff was adopted son of Gaurilal, and was thus the object of his affection for the exclusive bequest. But there is no reference in the will that he was the adopted son. The plaint also makes no reference to his adoption son. The plaint also makes no reference to his adoption by Gaurilal. Nor there is any other material to lend credence to such relationship. On the contrary, the Temple register shows that he was the son of Narayana.
18. Even if we proceed on the plea that the plantiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively in his favour. It is now not in dispute that Gaurilal’s wife was living at the time of execution of the will, but no provision was made for her maintenance. In the normal course, the wife would be the first to be thought of by the husband while executing a will. She should have been the first beneficiary of her husband’s bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiff’s case that their relationship was strained. Why then she should be excluded altogether? It is indeed baffling since it runs counter to our societal values.
19. Yet there is another circumstance which tells against the genuineness of the will. The will purports of have been executed in 1916 and Gangaram instituted the suit in 1959. The will had not seen the light of the day till the institution of the suit. It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question. The plaintiff has stated in his evidence that his father Narayan handed over the will to him. Narayan was therefore, aware of the execution to the will. Yet he did not disclose it to the court in the suit against him. His statement was recorded on July 8, 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property. He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal. In the second suit, Bhonrilal set up independent title to the property by adverse possession. That claim was totally destructive of Gangaram’s title. It cannot be said the Gangaram was ignorant of that litigation till he filed the suit. His evidence does not lead to that inference. In fact the plaint averments and his statements in the court lead to the contrary. Gangaram, however made no attempt to produce the will in that suit. In the long period of 43 years, none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits. This would not have been the natural conduct of person if the will had been really in existence.
20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated aththe factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the cases to reach a proper conclusion on the nature of the evidence adduced by the party .
21. In H.Venkatachala Iyengar V. S.N. Thimmajamma & Ors. (1959 Supp. (1) SCR 426) Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of solemnity in the decision on the question as to whether the document of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where there are suspicious circumstances, the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi & Anr. V. Kumar Khagendra Narayan Dev & Anr. (1962 (3) SCR 195) and Smt. Indu Bala Bose & Ors. V. Manindra Chandra Bose & anr. (1982 (1) SCC 20)
22. The Privy Council in Mt. Biro V. Atma Ram & ors. (AIR 1937 PC 101) had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in the public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the window of the testator and three other women, namely his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance, were made joint owners equally with the widow of the testator. None of the devises could get the estate partitioned or alienate it for necessity. It was however, provided that the lady, who survived the other three devises, would become the absolute owner of the estate. The widow of the testator would not get her husband’s estate, if she predeceased any of her co-devises. The will was not produced until 22 years after its execution though there were occasions of produce it, had it been in existence. Considering these circumstance, the Privy Council observed (at 104):
“It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, should make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so….”
The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’ wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We therefore, concur with the conclusion of the High Court and reject the will as not genuine.
23. This takes us to the validity of the sale deed Ex. 3. The High Court rejected the document with the following observations:
“Ex. 3 is neither a certified copy given under any of the provision of the Evidence Act nor is it a copy made from the original by any mechanical process. It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 4 or 5 of section 63 either. No one has given the oral account of the contents of the original document. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 65 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.”
24. The basis of the plaintiff’s title related back to the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.). It was said to be a registerd sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmain. The plaintiff has not produced the original sale deed. Nor a certified copy of it has been produced. All that we find from the record is an ordinary copy of a sale deed Ex. 3 produced by Gopal Prasad PW 1. Gopal Prasad has stated that Ex. 3 was a copy submitted by the parties along with the original sale deed for registration. The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file. But
Gopal prasad has no personal knowledge about the registration
of the sale deed, nor he has produced the register to indicate
that sale deed was registered and a copy was kept in the record.
Ex. 3 produced by him does not bear any endorsement to the effect
that it was a true copy of the original.
25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the the Evidence Act mentions five kinds of secondary evidences. Clauses (1), (2) and (3) refer to copies of documents; Clause(4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.
26. In the result, the appeal is allowed, modifying the judgment and decree of the High Court. The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff’s suit is dismissed.
27. Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court, we make no order as to costs.
1. This appeal by special leave is from the judgment of the Rajasthan High Court dated March 14, 1973 in S.B.(Civil) 2nd Appeal NO. 201 of 1966.
2. The case has a long history. It is concerned with a garden (baghichi) with temples of Sri Satyanarayanji, Sri Mahadeoji and other buildings at Motidungri Road in Jaipur. The local Darjees (Tailors) claim that it is their community property. According to them it is known as ‘Baghichi Darjian’ since it belongs to Darji community. The property however, was the subject matter of several litigations. It was claimed by different persons at different intervals on different grounds. One Narayan was admittedly ‘Pujari’ of the Temples. There was allegation that narayan purported to have sold the Baghichi in favour of one Khawas Bala Bux. The Panchas of Darjian community filed a suit for cancellation of the sale -deed and possession of the baghichi. The suit was also for declaration of the right to administer the trust of the temples and the other properties. Narayan was the first defendant in that suit. He did not contest the suit. He was, however, summoned and his statement was recorded on July 8, 1926, wherein he admitted that he was only the pujari of the temples. The other defendants in the suit set up rival title court dismissed the suit but on appeal the District Judge decreed it. That decree was affirmed by the former Chief Court, Jaipur by judgment Ex. 48 dated September 15, 1928.
3. Thereafter, for about 23 years there was no problem and there was no rival claimant to the property. But the dispute started after the death of Narayan. His eldest son Bhonrilal respondent 3 herein, made attempts to get his name mutated in the revenue records as owner of the baghichi. It appears that Bhonrilal after the death of his father was acting as pujari of the temples. The Darjian Community authorised Kalyan Singh, the appellant herein, as well as one Khawas Suraj Narayan to bring an action for ejectment of Bhonrilal. In 1961 they instituted a suit for his ejectment. In that suit Bhonrilal admitted the Panchayat’s right to the baghichi but raised a number of other pleas including his title by adverse possession. In 1966 the Munsif Court (West Jaipur) decreed the suit in favour of the Darji community. In 1968 the appeal against that decree was dismissed by the senior civil judge, Jaipur City. Bhonrilal preferred Second Appeal No. 80 of 1958 in the High Court of Rajasthan and obtained stay of delivery of possession on depositing mesne profits at Rs. 26/- per month. On September 15,1960, the High Court dismissed the second appeal. Thus the title of the Darjee community in respect of the baghichi was again recognised.
4. Even before disposal of the aforesaid second appeal, Ganga Ram the younger brother of Bhonrilal started another round of litigation. On December 12, 1959, he brought a declaratory suit claiming that he is owner of the property consisting of baghichi and temples. In this appeal we are concerned with the right claimed by him. The suit was primarily against the present appellant Kalyan Singh and Suraj Narayan, since deceased. Bhonrilal was also impleaded as the third defendant. Ganga Ram based his title to the property under a sale deed dated Baishakh Sudi 12th Samvat 1932 (about 1875 A.D.) and also on a will dated Asaj Sudi 12th Samvat 1973 (about 1916 A.D.). It was further alleged that the baghichi belonged to Bhagala and Girdhari and they sold the same to Raghunath Brahmin. Raghunath constructed the temple of Sri Satyanarainji and other buildings. Raghunath has only one son called Gaurilal and he was issueless. Gaurilal executed a will giving all his properties to Ganga Ram. It was alleged that the earlier suit against Bhornilal was collusive between the parties. With these allegations, Ganga Ram prayed for the following reliefs:
“(a) the plaint of the plaintiff be decreed and the plaintiff be declared as the owner of the aforesaid property. The plaintiff is the owner of the property mentioned in para No. 1. The decree which the defendant Nos.1 and 2 has obtained on 20.8.1956 against the Defendant No. 3 and was upheld by the Senior Civil Judge on 6.2.1958, is null and void against the claim of the plaintiff.
5. The appellant the first defendant in the suit denied plaintiff’s title to the baghichi. He also denied the tile of Bhagala and Girdhari. It was maintained that the baghichi was community property od Darjees and Narayan was only a ‘pujari’ of the temples. Narayan continued as Pujari till his death in 1950 and thereafter his eldest son Bhonrilal was acting as Pujari. Reference was made to the judgment of the Chief Court of Jaipur in the first suit against Narayan and judgments in the second suit against Bhonrilal. In view of those litigations and judgments rendered therein, it was claimed that the present suit was barred by principle of res judicata. It was also specifically stated that the suit against Bhonrilal was not collusive but brought on behalf of the Darjee community in a representative capacity.
6. The trial Judge on considering the evidence produced by the parties decreed the suit declaring the plaintiff as owner of the suit property. It was also declared that the plaintiff is not bound by the judgment and decree dated September 15, 1923 of the Chief Court of the erstwhile State of Jaipur. But no reference was made to the judgment and decree obtained in the suit against Bhonrilal. No declaration was given that it was not binding on the plaintiff though the relief was specifically sought for . Perhaps the plaintiff did not press that point. Kalyan Singh and Suraj Narayan appealed to the District Court. The learned District Judge dismissed the appeal. He also did not refer to the judgment in the suit against Bhonrilal. He only examined the validity of the said Sale deed and will and held that they were proved to have been executed. The defendants approached the High Court in Second Appeal no. 201/41.Before the High Court, they sought to produce additional evidence. They moved an application under Order 41 Rule 27 C.P.C. to accept a certified copy of the judgment dated September 15, 1928 of the Chief Court of the erstwhile Jaipur State and a copy of the statement of Narayan recorded in that suit. The High Court accepted the judgment of the Chief Court of Jaipur State, but rejected the Statement of Narayan.
7. During the pendency of the appeal in the High Court Suraj Narain died and his name was deleted from the appeal memo. Ganga Ram also died and his wife and son were brought or record as his legal representatives.
8. The principal question argued before the High Court related to the validity of sale deed (Ex.4) which formed the foundation of Gangaram’s title to the suit property. The High Court rejected both the documents. The sale deed Ex. 3 was rejected as inadmissible in evidence. The will Ex.4 was disregarded in view of the suspicious circumstances surrounding its execution. These conclusions would have been sufficient for allowing the appeal and dismissing the suit. But the High Court did not do that and instead rounded off the discussion as follows:
“The plaintiff is undoubtedly in possession of the Baghichi and it cannot be gainsaid that he was not a party to the previous litigation and he is not claiming the property though his father Narayan or his brother Bhonrilal. Apart from everything, the suit does not seem to have been filed against kalyan Singh and another in a representative capacity in accordance with Order 1 Rule 8 Civil Procedure Code. There was no application for permission to sue them in their representative capacity. Therefore, in spite of my having reached the conclusion regarding the document Ex. 3 and 4 against the plaintiff respondents I am not inclined to interfere with the decree of the court below though I do feel that the litigation against Kalyan Singh and another in their individual capacity was a fruitless exercise.”
9. Kalyan Singh – the defendant has now appealed challenging the decree of the High Court.
10. Counsel for the appellant has a two fold contention in the first place, it was argued that the Darjee community in their representative suit against Bhonrilal has obtained a decree declaring their title to the property and that decree could not be nullified by the present suit against individuals. The High Court instead of holding that the plaintiff’s suit was a fruitless exercise, ought to have dismissed the suit. Secondly, it was urged that the High Court after discarding the sale deed Ex.3 and will Ex.4 ought to have non-suited the plaintiff since there is no other material whatever to support his title to the property.
11. Normally, these contentions would have been accepted without much discussion, but we have to consider the submissions of counsel for the respondents. He challenged the correctness of the findings on all material points. It is, therefore, necessary to examine the judgment in greater detail.
12. We will first consider whether the previous suit against Bhonrilal was a representative suit on behalf of the Darjee community. It was argued for the respondents that it was only a suit on behalf of the ‘Panchayat Darjian” and not a representative suit on behalf of the Darjee community. Our attention was drawn to the trial court order dated November 16,1962 in the present suit. Thereunder the trial court has rejected an application for amendment of written statement. It was observed that the defendants in the affidavit have not denied allegations of the plaintiff that the suit against Bhornilal was not in a representative capacity. But the Court made that observation only on perusing the affidavits of parties for a limited purpose of considering the amendment application and not on an issue arising out of pleadings in the suit. In fact, the court has not framed any issue on that controversy although the defendant in the written statement has asserted that it was a representative suit on behalf of the Darjee community. The view expressed in the order dated November 1962 is therefore, unacceptable.
13. Counsel for the appellant however, relied upon statements from judgments in the previous suit in support of his contention that it was representative suit on behalf of the Darjee community. Ex. A- 2 is the judgment of the trial court. It begins with a sentence: “This is a representative suit by the plaintiffs Kalyan SIngh and Suraj Narayan on behalf of the Panchayat Darjian for recovery of possession of the baghichi.” But this statement may not held counsel for the appellant, since the suit was said to be on behalf of the ‘Panchayat Darjian’ and not Darjee community. Ex.A-4 is the High Court judgment in the second appeal arising out of that suit. There the High Court has stated: “That the suit was brought by Kalyan Singh and another against Bhonrilal by the representatives of Darjee community.” Here again we do not find much support to the appellant. The suit might have been instituted by representatives of the Darjee community, but that by itself was not sufficient to constitute the suit as a representative suit. For a representative suit, the court’s permission under Order 1 Rule 8 of the Code of Civil Procedure is mandatory. One does not know whether any such permission was obtained. The pleading in that suit or the order obtained under order 1 Rule 8 has not been produced. There is no other evidence to support the contention of either of the parties. In the absence of necessary material the conclusion one way or the other as to the nature of the previous suit will not be justified.
14. But that does not mean that the plaintiff could succeed ignoring the judgment and decree in the suit against Bhonrilal. It must be stated that any member of a community may successfully bring a suit to assert his right in the community property or for protecting such property by seeking removal of encroachments therefrom. Such a suit need not comply with the requirements of Order 1 Rule 8. The suit against Bhonrilal even if it was not a representative suit on behalf of the Darjee community would be a suit of this category. Kalyan Singh and another claimed that the baghichi was their community property and Bhonrilal was a trespasser. They brought the suit to recover possession from Bhonrilal. The suit was decreed. The rival title claimed by Bhonrilal by adverse possession was negatived. So long as that decree operates it would be futile to decree the present suit. The observation of the High Court that the present suit is a fruitless exercise could therefore, be sustained on this ground if not for the reasons stated.
15. The validity of the will may now be considered. On this question, the High Court said:
“Having read the evidence of these witness I am satisfied that according to the ordinary standard of providing a document the document Ex.4 can be said to have been proved. However, there was two disturbing elements surrounding the execution of the will. The first striking feature of this will is that even though the wife of Gaurilal was living at the time as she has survived him, no provision whatsoever has been made regarding her by Gaurilal in the alleged will Ex.4. Then the second striking feature is that even though litigation has been going on almost for years this will had not been referred to by anyone. In the first suit Narain was a defendant. He had not contested the suit and the proceedings remained ex paret against him. However, he was called by the Court and his statement was recorded. The judgment of the Jaipur Chief Court shows that he had laid no claim to the property and took the position that he was a Pujari at the baghichi. Then subsequently when suit was filed by the Darji community against Bhornilal, no reference came to be made to this will Ex.4 . Learned counsel for the respondents, as I have already observed, suggested that Narain or Bhornilal could not be expected to make any reference to the will as that would be detrimental to the stand taken by them. The argument, no doubt,looks attractive, but if it is examined in the light of none other than the statement of Gangaram himself it cannot stand the scrutiny. Gangaram had referred to the earlier litigation in the plaint, but when he entered the witnesses box he had taken a somersault. He was asked whehter he was aware of the previous litigation and he said, he did not know of it. He was then questioned with reference to para 5 of the the plaint as to how the facts had been mentioned by him therein and he kept mum and has no answer. He also admitted that it was Narain who had given him the document, Ex.4 some 5 or 7 years after the death of Gaurilal i.e. some 30 or 35 years back. In that situation there was no mention of the alleged will in any of the two previous suits. It is also remarkable that even upto the High Court Bhonrilal has asserted his own possession over the property and had also obtained a stay order on payment of mesne profits vide Ex. A.-7.
xxxxx xxxx xxxxxxx
The will is, therefore, not free from suspicion and it has not been dispelled. My conscience in this regard is not satisfied and therefore, I am unable to hold that Ex. 4 was the last will of Gaurilal in favour of Gangaram.”
16. Counsel for the respondents however, urged that the plaintiff has proved its execution by producing one of the attestors and the scribe and their evidence has not been disbelieved by the High Court. We were referred, in particular, to the evidence of plaintiff PW 3, PW 4 and Sham Sunder PW 7. We have perused their testimony and we are of the opinion that it is far from satisfactory. The plaintiff has deposed that Gaurilal was issueless and hence executed the will bequeathing the property to him. Ramdeo claims to be the attesting witness to the will. He has stated that the plaintiff was 10-11 years old when the will was executed. But the plaintiff himself has deposed that he was then a boy of 2-3 years. Ramdeo has given his age as 55 years when the deposed in the court on January 5, 1962. If we go by that age Eamdeo must have been a boy of 9 years when he attested the will in 1916. Sham Sundar claims to be the scribe of the will. He has deposed that after he wrote the will attestation was made by witnesses but he has not named any one of them. He has not even referred to Ramdeo as an attesting witness.
17. It was said that the plaintiff was adopted son of Gaurilal, and was thus the object of his affection for the exclusive bequest. But there is no reference in the will that he was the adopted son. The plaint also makes no reference to his adoption son. The plaint also makes no reference to his adoption by Gaurilal. Nor there is any other material to lend credence to such relationship. On the contrary, the Temple register shows that he was the son of Narayana.
18. Even if we proceed on the plea that the plantiff was adopted son of Gaurilal, there seems to be little reason to justify the bequest exclusively in his favour. It is now not in dispute that Gaurilal’s wife was living at the time of execution of the will, but no provision was made for her maintenance. In the normal course, the wife would be the first to be thought of by the husband while executing a will. She should have been the first beneficiary of her husband’s bounty unless there was odium or embittered feelings between them. But there is no such evidence and it was not even the plaintiff’s case that their relationship was strained. Why then she should be excluded altogether? It is indeed baffling since it runs counter to our societal values.
19. Yet there is another circumstance which tells against the genuineness of the will. The will purports of have been executed in 1916 and Gangaram instituted the suit in 1959. The will had not seen the light of the day till the institution of the suit. It is not as if Gangaram or his brother or father had no opportunity to produce the will to assert rights over the property in question. The plaintiff has stated in his evidence that his father Narayan handed over the will to him. Narayan was therefore, aware of the execution to the will. Yet he did not disclose it to the court in the suit against him. His statement was recorded on July 8, 1925 wherein he had admitted that he was only the Pujari of the temple and the wife of Baldeo sold the property. He did not say that his son Gangaram became owner of the property under the will executed by Gaurilal. In the second suit, Bhonrilal set up independent title to the property by adverse possession. That claim was totally destructive of Gangaram’s title. It cannot be said the Gangaram was ignorant of that litigation till he filed the suit. His evidence does not lead to that inference. In fact the plaint averments and his statements in the court lead to the contrary. Gangaram, however made no attempt to produce the will in that suit. In the long period of 43 years, none made any attempt to rely upon the will against the claim of the Darji community when the community representatives have successfully brought two suits. This would not have been the natural conduct of person if the will had been really in existence.
20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated aththe factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the cases to reach a proper conclusion on the nature of the evidence adduced by the party .
21. In H.Venkatachala Iyengar V. S.N. Thimmajamma & Ors. (1959 Supp. (1) SCR 426) Gajendragarkar, J., as he then was, has observed that although the mode of proving a will did not ordinarily differ from that of proving any other document, nonetheless it requires an element of solemnity in the decision on the question as to whether the document of departed testator. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the will could be accepted as genuine. Where there are suspicious circumstances, the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. These principles have been reiterated in the subsequent decisions of this Court in Rani Purnima Devi & Anr. V. Kumar Khagendra Narayan Dev & Anr. (1962 (3) SCR 195) and Smt. Indu Bala Bose & Ors. V. Manindra Chandra Bose & anr. (1982 (1) SCC 20)
22. The Privy Council in Mt. Biro V. Atma Ram & ors. (AIR 1937 PC 101) had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in the public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the window of the testator and three other women, namely his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance, were made joint owners equally with the widow of the testator. None of the devises could get the estate partitioned or alienate it for necessity. It was however, provided that the lady, who survived the other three devises, would become the absolute owner of the estate. The widow of the testator would not get her husband’s estate, if she predeceased any of her co-devises. The will was not produced until 22 years after its execution though there were occasions of produce it, had it been in existence. Considering these circumstance, the Privy Council observed (at 104):
“It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, should make a will which would practically disinherit them.
That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so….”
The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’ wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We therefore, concur with the conclusion of the High Court and reject the will as not genuine.
23. This takes us to the validity of the sale deed Ex. 3. The High Court rejected the document with the following observations:
“Ex. 3 is neither a certified copy given under any of the provision of the Evidence Act nor is it a copy made from the original by any mechanical process. It also does not appear to have been made or compared from the original as there is no verification or endorsement of the kind and it does not come under clauses 4 or 5 of section 63 either. No one has given the oral account of the contents of the original document. If in place of primary evidence secondary evidence is admitted without any objection at the proper time then the parties are precluded from raising the question that the document has not been proved by primary evidence but by secondary evidence. But where there is no secondary evidence as contemplated by Section 65 of the Evidence Act then the document cannot be said to have been proved either by primary evidence or by secondary evidence.”
24. The basis of the plaintiff’s title related back to the sale deed dated Baisakh Sudi 12 Samvat 1932 (1875 A.D.). It was said to be a registerd sale deed by which Bhagala Girdhari purported to have sold the baghichi to Raghunath Brahmain. The plaintiff has not produced the original sale deed. Nor a certified copy of it has been produced. All that we find from the record is an ordinary copy of a sale deed Ex. 3 produced by Gopal Prasad PW 1. Gopal Prasad has stated that Ex. 3 was a copy submitted by the parties along with the original sale deed for registration. The original sale deed was said to have been returned to the party after its registration and a copy was kept in the file. But
Gopal prasad has no personal knowledge about the registration
of the sale deed, nor he has produced the register to indicate
that sale deed was registered and a copy was kept in the record.
Ex. 3 produced by him does not bear any endorsement to the effect
that it was a true copy of the original.
25. The High Court said, and in our opinion very rightly, that Ex.3 could not be regarded as secondary evidence. Section 63 of the the Evidence Act mentions five kinds of secondary evidences. Clauses (1), (2) and (3) refer to copies of documents; Clause(4) refers to counter-parts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not a certified copy. It is just an ordinary copy. There is also no evidence regarding contents of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.
26. In the result, the appeal is allowed, modifying the judgment and decree of the High Court. The judgment and decree of the trial court as affirmed by the District Court are set aside and the plaintiff’s suit is dismissed.
27. Since the original plaintiff died leaving behind his widow during pendency of the appeal before the High Court, we make no order as to costs.
