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Bibo Devi and ors. Vs. Rattan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 69D of 1962
Judge
Reported inILR1972Delhi699
ActsEvidence Act, 1872 - Sections 68 and 90; Succession Act, 1925 - Sections 63; ;Court Fees Act, 1870
AppellantBibo Devi and ors.
RespondentRattan Lal and ors.
Advocates: D.D. Chawla and; Sultan Singh, Advs
Cases ReferredMessrs. Ram Gopal Dula Singh v. Sardar Gurbux Singh Jiwan Singh
Excerpt:
(i) evidence act (1872) - section 90--presumption under--will purporting to be more than 30 years old, being sought to be proved by entries in deed-writer's register--validity of.; that the contents of a will given in the deedwriter's register cannot at best amount to anything more than the same being a summarised copy of the alleged will; the mere fact that the deed-writer's register itself is more than 30 years old does not warrant the presumption of due execution or attestation of the said will.; (ii) evidence act (1872) - section 68--scope of--document requiring attestation--mode of proving.; that any document required to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting.....s. rangarajain, j. (1) the l. rs. of the original plaintiff (bulaqidass) are the appellants. bulaqidass was one of the three sons of joti parshad, who died in 1918; the two other brothers of the plaintiff were ballumal (who died in 1947) and madho parshad (who died in 1950) leaving no issue but only his widow shanti devi, (who also died in 1956). the present suit was instituted by bulaquidass with reference to the suit house in june, 1957 for effecting a partition and putting him in separate and exclusive possession of 2/3rd share on the footing that the plaintiff was in joint possession of the suit property along with defendants no. 1 and 2 (the sons of ballumal). bulaqidass died during the pendency of the suit after giving evidence and his l. rs. were brought on record as supplementary.....
Judgment:

S. Rangarajain, J.

(1) The L. Rs. of the original plaintiff (Bulaqidass) are the appellants. Bulaqidass was one of the three sons of Joti Parshad, who died in 1918; the two other brothers of the plaintiff were Ballumal (who died in 1947) and Madho Parshad (who died in 1950) leaving no issue but only his widow Shanti DeVi, (who also died in 1956). The present suit was instituted by Bulaquidass with reference to the suit house in June, 1957 for effecting a partition and putting him in separate and exclusive possession of 2/3rd share on the footing that the plaintiff was in joint possession of the suit property along With defendants No. 1 and 2 (the sons of Ballumal). Bulaqidass died during the pendency of the suit after giving evidence and his L. Rs. were brought on record as supplementary plaintiffs; one of the sons of Bulaqidass (0m Prakash) was imp leaded as a third defendant. A specific allegation was made in the plaint that even though the suit house had not been partitioned by metes and bounds for better and convenient enjoyment, the three brothers including the plaintiff started living in different portions of the house after the death of Joti Parshad. In the written statement filed by the second defendant the above-said allegation concerning joint possession was denied and a plea was taken that since the original plaintiff was not in joint possession of the suit property he had no locus standi to sue the persons who were in possession for partition. It was alleged that the property was the self-acquired property of Joti Parshad in respect of which he had executed a will on 17-2-1918 giving the same to his widow smt. Pato for her life-time and after her death exclusively to Ballumal (father of the second defendant) it was stated that the original will had been scribed by the late Munshi Abdul Wahab, (deed writer) and it was entered as Sr. No. 89 in his register. The photostat copy of the entry was submitted along with the written statement, alleging that the original will was 'not traceable and has not been found' in spite of best efforts. It may be noticed that no mention was made about who had attested the said will. It was further contended that the plaintiff could not in any case claim more than one third share in the property.

(2) In the replication which was filed by the plaintiff the execution of the will was denied and that the said claim of the defendant deserved no consideration in the absence of the original. It was also stated that the entire defense of the defendant, based on the said will, was destroyed and negatived by the mortgage executed by Ballu Mal (the alleged legatee) in regard to his one third share in the suit house in favor of Sri Ram by amortgage deed dated 1-1-1942 and that the second defendant had deliberately concealed the said mortgage from the Court in spite of the fact that he had knowledge of the same and was conscious that it cut at the very root of the defense based on the said will. It was further pleaded that in the municipal records also the names of the original plaintiff, Madho Parshad and Ballu Mal had been entered as owners of the suit house, which was inconsistent with Ballu Mal alone having become the sole owner of the house under the said will. The following issues were framed:

(1)Is the property in question ancestral property qua the plaintiff? (2) Did Shri Joti Parsbad execute a will as alleged in the written statement? If so, its effect? (3) To what share is the plaintiff entitled in the house insuit? (4) Did the defendants spend any amount in the improvement of the property, if so how much and what is its effect? (5) Relief? (6) Whether the plaintiff is in joint possession of the house and is entitled to file the present suit

(3) The most important question for consideration in this appeal is whether the second defendant, on whom the onus probandi lay, has discharged it. There was no reference made to the will of the year 1918 prior to the filing of the written statement in the year 1957. Joti Parshad had died about 10 months subsequent to the execution of the alleged will and the same was not registered. No specific case was set up in the written statement that the will had been lost at any particular point of time. The particular words employed in this regard in the written statements have been extracted above and nothing more was said than that the will was not traceable in spite of best efforts by the second defendant. The evidence that was actually attempted at the trial was somewhat different. The second defendant, who was examined as D. W. 10, swore that the title deeds of the suit property including the sale deed of 1895 and the discharged mortgage executed in respect of it in 1912 along with the will of 1918 used to be kept by Ballumal in a safe in a shop situated at Fatehpuri, Delhi. The second defendant is now carrying on business at the same shop. The entire shop was looted and nothing remained there. He had not been able to find any of these documents in spite of search. It is interesting to note that these particular facts regarding the looting of the shop and the loss of documents during the course of such looting were not mentioned in the written statement.

(4) Before secondary evidence relating to a document is given it must be proved (vide Section 65(c) of the Indian Evidence Act), among other things, that the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. According to Section 63 of the Indian Succession Act, 1925 a will of this description could be executed only according to the following rules:

(A)The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

(5) According to Section 68 of the Indian Evidence Act any document required to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. The proviso to Section 68 dispenses with the need to call an attesting witness in proof of the execution of only document other than a will. In the case of a document other than a will, no attesting witness need be examined unless its execution by the person by whom it purports to have been executed is specifically denied (this last aspect has reference only to the mortgage deed of the year 1942 stated to have been executed by Ballumal).

(6) D. W. I (Syed Ahmed Chishti) is the brother of Abdul Wahab, who is stated to be the deed writer who wrote the said will. The original deed register was produced and proved by D. W. 1. The concerned entry which has been marked as D. W. I/I is in the handwriting of Abdul Wahab. The register itself contained the seal of the Deputy Commissioner which has been relied upon in proof of the genuineness of the said register. The relevant entry concerning this will (bearing Sr. No. 89) in the original register bears a thumb mark and under-neath thumb mark it has been written that it was that of Joti Parsbad; the said writing is, according to D. W. I, in the handwriting of the deed writer, Abdul Wahab. The translation of the said entry has been printed at page 124 and contains the following remarks in column 7 :

'SOlong as the executant is alive, he will be the owner of his movable and immovable property. After his death his wife Mst. Pato will be the owner of his entire property. She should give Rs. 1.000.00 to each of his sons Balaqi Dass and Madho Ram out of his property left within one year. She shall have no right to transfer the property. Besides she should pay off the debt out of his property left. After her death, his third son Babu Lal shall be the owner of his entire property, movable and immovable and he will be competent to transfer the property. Excepting Babu Lal, his no issue shall be entitled to get anything out of his property excepting the said Rs. 1,000.00.'

According to D. W. I, who was examined on 19-3-1959, Abdul Wahab had died two years previously.

(7) D. W. 3 (Murari Lal), who is no other than the maternal uncle of the second defendant, came forward to depose that he had signed the will 'as a marginal witness'. He is stated to be aged 68 years. In the first place there is no guarantee of any kind regarding the fact that he was one of those witnesses, who had attested the original will, the register itself not mentioning the name of any attesting witness. That he attested the said will was not mentioned by the second defendant in the written statement (as already noticed there was no reference at all to any person who was either present when the will was executed or attested the said will). Yet another witness, Bhawani Parshad (D. W. 2) claimed to have been present when the will was executed but even he did not refer to the presence of D. W. 3 or his attesting the will. Yet another witness (Shri Ram s/o Jangli Mal, D. W.5) also claimed to have been present when the will was executed. He referred to the presence of D. W. 3 and another person whom he named as Bhawani Shankar (it may be noticed that D. W. 2 is Bhawani Parshad and not Bhawani Shankar). If he was some one other than D. W. 2 nothing has been stated as to why he has not been examined; if the reference is to D. W. 2 himself it is significant that D. W. 2 had not mentioned anything about the presence of D. W. 5 then. It was elicited from yet another witness for the second defendant (Durga Parshad, D. W. 9) that two of the witnesses who were present at the time of the execution of the alleged Will were Jangli Mal and Murari Lal; according to D. W. 9, four persons attested the said will, of whom he mentioned only the names of these two persons. It is strange that D. W. 5, then son of Jangli Mal, who says that he was present at that time had not mentioned anything about the presence of his father Jangli Mal and he is not likely to have missed the presence of Jangli Mal, his own father, if he was present then. D. W. 9, on his part, had not mentioned that D. W. 5, the son of Jangli Mal, was present, but had referred to only the presence of Jangli Mal. Even making due allowance for the fact that evidence was given before the Court over forty years later than the execution of the alleged will the actual evidence concerning the execution of the said will is itself thus seen to be very unsatisfactory. Fairly convincing proof about the execution of a will, which was unregistered and which was admittedly not propounded over a period of forty years, is necessary, the evidence adduced regarding its execution falls considerably short of the standard of proof that is necessary in such cases.

(8) One is left with the feeling that advantage has been taken of the fact that no attesting witnesses have been mentioned even in the extract in the deed writer's register. The name of no attesting witness having been mentioned in the written statement, the second defendant and his witnesses have been left free to give any version they chose concerning who were present at the time of the execution of the alleged will or who attested the same.

(9) The learned Subordinate Judge was rightly not impressed by D. W. 9 (Durga Parshad) who stated that the alleged will (along with other documents) was entrusted to him for safe custody for only about 15 days in the year 1942, which gave him the occasion for going through the contents of the will.

(10) If the second defendant was able to see the alleged will even in 1946, a little prior to the alleged looting of the shop, in 1947, almost the first thing he would have mentioned it in the written statement was that the alleged will must have been lost then. The reference to the looting of the shop, as a possible cause of its loss, is thus seen to have been made by way of an after-thought. Since the loss itself has to be satisfactorily proved before any .secondary evidence is admitted it seems to us that no case for letting in secondary evidence of the said will has in fact been made out.

(11) As explained by the Supreme Court in H. Venkatachala lyengar v. B. N. Thimnaiamma : AIR1959SC443 the onus of proof is heavy on the propounder of the will. Apart from the usual test of the satisfaction of a prudent mind in such matters a will differs even from other documents in one important respect because the testator who has already departed the world cannot say whether it is his will or not; this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. The propounder is, thereforee, called upon to show, by satisfactory evidence, that the will was signed by the testator, that he was in a sound and disposing state of mind, that he understood the nature and, effect of the dispositions and he subscribed his thumb impresson to the document of his own free will. The will itself may in certain cases contain indications that the dispositions were not the result of testator's tree will and mind; then the Court would naturally expect all legitimate suspicions to be completely removed before it is accepted as his last will. The Will in this case did not give any share in the suit house to the other two sons. It was explained to us, but. without any evidence in this regard, that the value of the property was so low that the direction to pay, to each of the other two brothers of second defendant's father only a sum of Rs. l,000.00 within a year, was not unnatural. But not only was no evidence adduced in this regard, mind has not been applied to this aspect of the matter either before or by the trial court. It has not been stated that the money was in fact paid; when Bulaqi Dass, the only surviving son of the testator, gave evidence (as Public Witness 1) and denied the execution of any will by his father, it was not even suggested to him that he had received the said sum of Rs. 1,000.00 according to the direction in the said will.

(12) P. W. I had also given evidence concerning Ex. P. 6, which is stated to be a copy of letter dated 12th August addressed to the Municipal Engineer, Municipal Committee, Delhi, complaining of a water tank behind the suit house not being closed making the place insanitary and a hazard to health. The importance of this document lay in the fact that according to the evidence of P. W. I the original of Ex. P. 6 was signed by all the three brothers including himself. P. W. I swore that Ballomal and Madbo Parshad both had affixed their signatures to the letter to the Municipal Engineer. His own signature thereon, in original, was encircled and marked separately as 'A'. No notice was, however, given to the Municipal Committee to produce this letter. However, even leaving Ex. P. 6 out of consideration, it seems fair to say that if the will existed, Ballomal would have written to the Municipal authorities to change the registry of the suit house in his own sole name. We are, thus, left without even a single circumstance which will point to the existence of the alleged will, its validity or the same having been given effect to.

(13) The second defendant cannot take much advantage of the suggestion, made to him in cross-examination, that the will of Joti Parshad was torn into pieces after it was written and signed by Joti Parshad this suggestion was denied by the second defendant. The suggestion cannot mean anything more than disputing the fact that, even if the will were true, it was Joti Parshad's last will and testament and that it was meant to be given effect to. Sometimes several suggestions are made merely to indicate the probabilities. We do not think that this suggestion was any different. Yet another suggestion made was that the thumb impression was taken later on to the entry in the deed-writer's regis- ter. These suggestions have probably been made only because there is not even a single circumstances, subsequent to 1918, suggesting that such a will was either executed or given effect to all along. We do not find any reference to the said will anywhere, earlier than the written statement filed by the second defendant.

(14) Section 63 of the Indian Succession Act, 1925, the terms of which have already been noticed, requires the propounder to prove that the will is duly attested. Attestation consists in the required number of witnesses (at least two) seeing the testator sign the will and their signing in the presence of the testator. Section 68 of the Indian Evidence Act, also noticed above, requires that at least one attesting witness be called, if he is alive, to prove the execution of the will. The difficulty arises in this case by reason of the fact that it cannot even be spelt out from the entry in the deed-writer's register that the will was attested at all or that it was attested by the witnesses who now claim to have attested the said will. The entire proof that has been adduced regarding not only the execution but also of the attestation of the said will is highly unsatisfactory.

(15) A reading of the evidence of D. W. 3 itself does not make out that the alleged will was duly attested. He has only stated that the subject matter of the will was given to the scribe by the testator ; the contents were read over to the testator and his thumb impression was taken not only on the will but also on the synopsis of the contents of the will given in the register which was also admitted by him to be correct. The evidence of D. W. 3, even apart from the absence of any guarantee that he was at all a witness to the said will the being the maternal uncle of the second defendant) is itself not even sufficient to prove that the will was duly attested. In order to make up for the above vital shortcoming in the evidence of D. W. 3, Shri Sultan Singh, learned counsel for the second defendant, relied on what was elicited in the course of D. W. 5's cross-examination that the witnesses signed the same on 'the asking of Joti Parshad'. It is worth recalling that D. W. 5, the son of Jangli Mal, who was stated to be present according to D. W. 9, did not mention that his father was present. D. W. 5 himself referred to the presence of Bhavani Shankar and Murari Lal: D. W. 2 is Bhawani Parshad but not Bhawani Shankar; Murari Lal (D. W. 3) did not state that he signed the document on being asked to sign by Joti Parshad.

(16) The presumption under Section 90 of the Indian Evidence Act cannot be invoked in respect of the entry in the deed-writer's register. Despite the thumb impression of the testator being stated to have been taken to the extract of the alleged will in the said register, it would really amount to nothing more than a copy of the original will. The presumption under Section 90 cannot be extended to a copy; in other words, it would only apply to the original when it is produced from proper custody. This was so held by the Supreme Court in Kalidindi Venkata Subbaraja v. Chintalclpati Subbaraju : [1968]2SCR292. The contents of the alleged will given in the deed-writer's register cannot at best amount to anything more than the same being a summarised copy of the alleged will; the mere fact that the deed-writer's register itself is more than 30 years old does not warrant the presumption of due execution or attestation of the said will.

(17) For the above reasons, differing from the learned Subordinate Judge, we hold that neither the execution of the alleged will nor its attestation have been proved. Even in the view that the secondary evidence of the said will could be received in evidence and that the concerned entry made in the deed-writer's register is such evidence, there being even no mention that the will was attested no real support is available for the version, put forward for the first time during the trial, that the original will was attested by the witnesses who are now stated to have attested the said will or much less that it was attested at all. For this purpose resort must be had to the oral testimony which is found to be exceedingly unsatisfactory.

(18) In the above view there is really no necessity to go into the question whether Ballomal had executed the mortgage as owner of only one third share in the suit house on 1-1-1942. But it seems to us that the learned Subordinate Judge erred in not permitting a copy of the said mortgage (which was filed before him) to be received in evidence when a request was made to that effect in the application dated 11-9-1961. It is not as if the mortgage deed was mentioned for the first time only in that application; the same had been mentioned in the replication which was filed by the plaintiff as early as on 16-10-1957. It has also to be noticed in this connection that after the death of Bulaqi Das his L. Rs. were brought on record and the second defendant had a further opportunity of filing another written statement (to the amended plaint) on 25-7-1960. Even in that written statement the second defendant had not referred to that mortgage at all in spite of the specific reference to it in the above-said replication dated 16-10-1957 that not only had Ballomal executed the mortgage on 1-1-1942 in respect of the suit house, but he had asserted his right to only a one third share therein. Having regard to the importance of this mortgage and the same being utterly inconsistent with the alleged will a mere evasive denial that Ballomal 'never executed any mortgage deed relating to the property in dispute' was not sufficient. In other words, it was not specifically denied that Ballomal did not execute this mortgage. In these circumstances there is no need to call any attesting witness to prove the registration copy of the mortgage deed. The proviso to Section 68 of the Indian Evidence Act dispenses with the need to call for any proof for execution of the document, not being a will, registered in accordance with the provisions of the Indian Registration Act except in cases where its execution by the person by whom it purports to have been executed is 'specidcally' denied. We construe the reply filed to the application dated 11-9-1961 as not containing a 'specific' denial of the execution of the said mortgage.

(19) According to Order 41, Rule 27(1) (a) of the Code of Civil Procedure the appellate Court may allow additional evidence to be produced if the Court, from whose decree the appeal is preferred, has refused to admit evidence which ought to have been admitted. By his order dated 14-9-1961 the learned Subordinate Judge observed that sufficient case had not been made out to lead secondary evidence of the mortgage in question and that the application was itself not accompanied by any affidavit to indicate the circumstances warranting the allowing of supplementary evidence. The latter requirement could have been either dispensed with by the Court or directed to be complied with. Neither course was adopted. The learned Subordinate Judge further observed that the mortgage deed in question did not appear to have been relied upon by the plaintiff at any point of time; he expressly referred to the absence of any reference to it in the plaint. In saying so the learned Subordinate Judge overlooked the fact that reference had been made to the same in the replication and that even in the further written statement filed by the second defendant, long after such replication after the death of Bulaqi Das and addition of his L. Rs. the second defendant had refrained from making even any reference to it.

(20) The only statement concerning the above mortgage was that of the second defendant, in the course of cross-examination, that to his knowledge his father never mortgaged any portion of the suit house 'in 1940 or at any other time' and that he had no debt on this property. He also stated that he was not in possession of the original mortgage deed. In view of this any objection on the ground of non-production of the original mortgage deed was idle. If there was, even according to second defendant, no mortgage subsisting on the property it was a fair inference that the mortgage itself was discharged, if it existed, and that it had come into the possession of the mortgagor. As per Section 65(a) of the Indian Evidence Act the original need not be produced when it is shown or appears to be in the possession or power of the person against whom the document is sought to be proved. The reasons, which have been stated in the order of the learned Subordinate Judge dated 14-9-1961 dismissing the application by the plaintiffs to receive in evidence the copy of the above-said mortgage deed, are seen to be entirely unsupportable. We are, thereforee, of the view that the said document ought to have been admitted in evidence and hence the same is received, as additional evidence in this appeal, under Order 41 Rule 27 (1) (a) of the Code of Civil Procedure. We do not find any need on this account, to record oral evidence to prove the mortgage, there hav- ing been no specific (as distinct from an evasive) denial of the execution of the said mortgage. C. M. P. No. 48 of 1972 is accordingly allowed and copy of the registered mortgage deed of Ballumal dated 1-1-1942 is received as additional evidence and marked as Ex. A.

(21) We wish to make it clear, however, that even without taking this mortgage deed into consideration we hold that the execution of the alleged will of Joti Parshad and its attestation have not been proved though the original mortgage being executed by Ballumal over only one third share of the suit house is inconsistent with the alleged will either having been executed or subsisting.

(22) One question, of subsidiary importance, has to be adverted to. It is contended that the original plaintiff has not proved that he was physically in possession of any part of the property either himself or through his tenant and thereforee the suit for partition on the footing of his being in joint possession is not sustainable. The allegations made in paragraphs 12 and 13 of the plaint were as follows:

12.That the plaintiff is in joint possession of the house in suit with the defendants. 13. Value of the suit for purposes of jurisdiction is Rs. 15,000.00, being the market value of the entire house in suit; fixed court fee stamp of Rs. 15.00 as required by law, has been paid on the plaint, because plaintiff is in joint possession of the suit house with the defendant's.

(23) The value had been given at Rs. 15,000.00 representing the market value of the entire suit house, only for the purpose of jurisdiction. According to Article 17(vi) of the Second Schedule of the Court-fees Act, 1870, a fixed court-fee is payable in respect of every suit (other than those specifically provided for by the Act) where it is not possible to estimate the money value of the subject matter in dispute and it is not otherwise provided by the said Act. According to Section 7(iv)(b) of the Court-fees Act, 1870, a suit to enforce a share in joint property on the ground that it is joint family property shall be valued ad valorem on the amount at which the relief is valued in the plaint. This is the view that has been almost unanimously adopted by various High Courts of India.

(24) Shri Sultan Singh, learned counsel for Respondent No. 2, could derive no assistance whatsoever from Section 8 of the Suits Valuation Act, 1887 which provides that the value for determination of court-fee and value for purposes of jurisdiction shall be the same in certain cases because that applies only to cases where ad valorem court fee is payable under the Court-fees Act. Fixed court fee alone is payable in cases falling under Second Schedule of the Court-fees Act, 1870 (Article 17(vi) applies to the present case).

(25) The learned Subordinate Judge has relied upon the Full Bench decision of Lahore High Court in Asa Ram v. Jagan Nath and others A.I.R. 1934 Lah 563 0 and the Division Bench of the Punjab High Court in Messrs. Ram Gopal Dula Singh v. Sardar Gurbux Singh Jiwan Singh AIR Pun 215. In the Full Bench case it was held that a suit for partition of joint property should not be dismissed solely on the ground of the plaintiff being out of possession; he should be given an opportunity to pay the Court fee required and the suit dismissed only after such an opportunity is given. But the learned Subordinate Judge has missed the fact that in the Full Bench case the Lahore High Court had specifically pointed out that Section 7(iv)(b) of the Court-fees Act would apply only to cases relating to joint family property where the plaintiff has been ousted from his enjoyment and seeks to be restored to joint enjoyment. In other words, the liability .to pay ad valorem court-fee on the plaintiff's share would arise only if he had been excluded from joint enjoyment or where he has never been in joint possession, either actual or constructive, of the joint family property but desires to separate his share from the other co-sharers. It need hardly be expressly mentioned that the possession of one co-sharer is in law the possession of another co-sharer, in the absence of ouster. The above said decision was followed by the Division Bench of the Punjab High Court in Ram Gopals caseC). In that case also it is seen that prior to the suit the property was in the possession of a receiver and actual physical possession had been handed over to the defendants. In the present case no ouster has been pleaded. It is only subsequent to the filing of the present suit that the alleged will was set up. In the absence of the impugned will the original plaintiff and his two brothers would be jointly entitled to the suit property, the possession of one being the possession of the other. Merely because the plaintiff has set up a case of having been in physical possession of a portion of the suit house and another portion being in the original plaintiff's possession, through a tenant, it would not make any difference in the matter of payment of court-fee when no ouster had even been pleaded. We accordingly hold that the suit was properly valued under Article 17(vi) of the .Second Schedule of the Court-fees Act. Whether the will is true or not is a question which has to be gone into on the merits. The objection regarding the court-fees paid on the plaint being insufficient cannot, thereforee, be upheld. Issue No. 6 was itself wrongfully framed raising the question whether the plaintiff was entitled to file a suit without being in joint possession. As explained above even a plaintiff out of possession could file a suit for partition. The only further question is only concerning the court-fee payable. This issue has, thereforee, to be .answered only with reference to court-fee and is answered in the above manner; the finding on this issue by the lower court is also set aside.

(26) The lower court found that the plaintiffs and defendant No. 3 in the event of their succeeding in the suit, would be entitled to two third share of property in view of the provisions of the Hindu Succession Act, 1956. This finding is unexceptionable. By reason of Madho Parshad having died in 1950, subsequent to the Hindu Woman's Right to Property Act, 1947, his one third interest, in the absence of any issue, passed on to his widow (Smt. Shanti) a woman's estate which by virtue of Section 14 of the Hindu Succession Act, 1956 (which came into force on 17-6-1956) enlarged Smt. Shanti's interest in the property into an absolute estate, she having died on 19-11-1956, after the coming into force of the said Act. She became a fresh stock of descent and her property according to Section 15(1)(b) of the Hindu Succession Act 1956 devolved, in the absence of her own issue, upon the heirs of her husband Bulaqi Das, being the husband's heir, became entitled to the said one third interest in the said house.

(27) In the result, the judgment and decree of the lower court are set aside and a preliminary decree for partition is accordingly passed in favor of the present plaintiffs and third defendant, with a direction that two third share will be separated from the remaining one third share and the possession of the two third separated share will be given to the plaintiffs and the third defendant. The plaintiffs, in view of their success, will get the costs from the contesting 2nd defendant in the lower court as well as in this Court. The appeal is accepted accordingly.


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