G.C. Mital, J.@mdashThis appeal under Clause X of the Letters Patent is directed against the judgment of a learned single Judge dated Sept. 16, 1975, in S. A. No. 451 of 1972, decreeing the suit of the plaintiff-respondent on reversing the concurrent judgments and decrees of the Courts below, by which the suit was dismissed.
2. Shrimati Parsini, plaintiff, filed the present suit for possession claiming the estate left by Bhagwana, as his daughter, against Atma Ram appellant and others, on May 26, 1966, on the ground that Bhagwana died on Sept. 2, 1958 and she being his daughter was entitled to succeed to the property which he possessed at the time of his death.
3. Atma Ram defendant-appellant contested the suit and denied that Smt. Parsini plaintiff was the daughter of Bhagwana and claimed succession to the estate left by Bhagwana on the basis of registered will dated Oct. 15, 1957. He also relied on the previous judgments delivered by the first appellate Court and the High Court between him and Ram Chand and Ram Piara, wherein the registered will was held to have been proved. He also pleaded that the suit is barred by limitation besides challenging the locus standi of the plaintiff to file the present suit.
4. On the pleadings of the parties, the following issues were framed:--
1. Whether the suit is within time? O. P. P.
2. Whether the plaintiff has any locus standi to file the present suit? O. P. P.
3. Whether the suit is properly valued for purposes of Court-fee and jurisdiction? O. P. P.
4. Whether the will is valid? If not, its effect? O. P. D.
5. Whether the plaintiff is daughter of Bhagwana? O. P. D.
6. Relief.
The learned trial Court, by its judgment and decree dated June 7, 1969, dismissed the suit holding that Smt. Parsini plaintiff is not daughter of Bhagwana, she has no locus stand! to file the suit and that Bhagwana had executed a valid will, Exhibit D-2, in favour of Atma Ram defendant who is the rightful owner of the property in dispute. On appeal, the learned Additional District Judge maintained the findings recorded by the trial Court and dismissed the appeal on January 7, 1972. Smt. Parsini plaintiff filed a second appeal in this Court which has been allowed by a learned single Judge by judgment dated Sept. 16, 1975 holding that the plaintiff is the daughter of Bhagwana, she has locus standi to file the suit and that the execution of the will in favour of Atma Ram defendant is not proved. Consequently, the suit for possession was decreed.
5. Mr. Y. P. Gandhi, the learned counsel for Atma Ram defendant-appellant has sought to challenge the decision of the learned single Judge primarily on the ground that pure findings of fact were recorded by the trial Court and the first appellate Court and those concurrent findings of fact could not be reversed in second appeal in view of the various decisions of the Supreme Court and, therefore, argued that on this ground alone, the appeal deserves to be allowed and the judgment and decree of the first appellate Court deserves to be restored. So far as issue No. 4 regarding the will is concerned, we find from a reading of paras 25 to 28 of the judgment of the first appellate Court that relying on the statement of Banarsi Dass D.W. 1, a regular petition writer, Tulsi Ram D.W. 3, an attesting witness of the will, and Exhibit D-2, copy of register of documents maintained by Banarsi Dass, apart from other material on the record, it came to a finding of fact that the execution of the will left by Bhagwana was duly proved. This part of the judgment of the first appellate Court has been met by the learned single Judge at page 12 of his judgment wherein the sole ground for discarding the statement of Tulsi Ram D.W. 3 is that he belongs to another village. In our opinion, this is no reason to discard the statement of an attesting witness of a will. It deserves mention that the statement of Banarsi Dass D.W. 1, who is the petition writer, has not been discussed at all nor has it been rejected. The will has been held to he suspicious on one of the grounds that Aziz Khan Lambardar of the village, who was the other attesting witness of the will, has not been produced. The will has been held to be suspicious also on the ground that Bhagwana was about 95 years of age. For the reasons given by the learned single Judge we are not satisfied that the concurrent ''findings of fact recorded by the Courts below could be upset on these grounds. Accordingly, the decision of the learned single Judge on this aspect of the matter is reversed.
6. The learned counsel for the plaintiff-respondent then urged that there were two attesting witnesses and it was incumbent on the defendant to produce both of them and failure to do so would necessarily mean that the execution of the will is not proved. He placed reliance on
7. The trial Court and the first appellate Court also relied on Exhibits D-3 to D-7, some of which are judgments in the previous litigation between Atma Ram on one side and Ram Chand and Ram Piara on the other side. In that litigation also, Atma Ram relied on the registered will dated Oct. 15, 1957, which is the subject-matter of dispute in this case as well. The two Courts below found that these were relevant pieces of evidence u/s 13 of the Evidence Act and relying on them held that this was an additional factor for holding that the will in dispute was duly proved. The learned single Judge while adverting to these documents in his judgment at page 11, has observed that they could not be relied upon. It will be better to quote his words:--
"Admittedly these judgments are not inter partes. Parsini appellant was not a party to these proceedings and hence the same can have no effect on the present proceedings, as has been held in
8. The learned counsel for the appellant has argued that the learned single Judge committed an error of law in coming to the conclusion that the judgments in the previous case are not relevant under S. 13 of the Evidence Act and in support of his argument has relied on Ganga Sagar v. Inam Ilahi AIR 1946 Lah 387; Hira Lal v. Shivlal (1969) 71 PLR 735 ,
9. So far as Ramaji Batanji v. Manohar Chintaman (supra), is concerned, which has been referred to by the learned single Judge, the same is of no assistance to the plaintiff-respondent for two reasons. Firstly, in that case a finding was recorded by the High Court that the identity of the house in dispute in the previous case and the case before them was not established and, secondly, that decision has already been distinguished by this Court in Hira Lal v. Shivlal (supra). Hence that case is clearly distinguishable and is not applicable to the facts of this case. We, therefore, hold that the learned single Judge was in error in holding that documents D-3 to D-7 are not relevant u/s 13 of the Evidence Act and reverse this part of his judgment.
10. Before concluding the issue of will, we may refer to one more aspect of the matter and that is that the learned single Judge has held that the Courts below were in error in allowing secondary evidence as it was not shown as to how the will was lost and because no report was lodged. In this case, the Courts below exercised their discretion in permitting the defendant-appellant to lead secondary evidence after they were satisfied about the loss of the will and this discretion should not have been lightly interfered with. Before us, it is not shown as to how the discretion was wrongly exercised. It will be important to mention here that even in the previous litigation the loss of the will was proved and there also Atma Ram was allowed to lead secondary evidence and the permission to lead secondary evidence was maintained up to the Supreme Court. Therefore, disallowing secondary evidence in the second suit would not have been justified. The learned single Judge was in error in this regard also.
11. Consequently, we reverse the decision of the learned Single Judge under issue No. 4 and hold that the registered will dated October 15, 1957, is duly proved and is a valid document.
12. Issues Nos. 2 and 5, with regard to the locus standi of the plaintiff and her being the daughter of Bhagwana, deserve to be dealt with together as they are inter-connected. After going through the judgment of the learned Single Judge on these issues, we find that he was right in coming to the conclusion that the evidence produced by Shmt. Parsini plaintiff about her relationship with Bhagwana was legal and admissible under Sections 50 and 60 of the Evidence Act and that the Courts below were wrong in rejecting the same as inadmissible. There has been some conflict in this Court about the scope of Sections 50 and 60 of the Evidence Act which was resolved by a Full Bench decision in Amar Singh v. Chhaju Singh (1972) 74 Pun LR 625. On the basis of that decision, the evidence produced by Smt. Parsini plaintiff was admissible and it duly proved that she was the daughter of Bhagwana.
13. In the result, we uphold the decision of the learned Single Judge on these issues and hold that the plaintiff was the daughter of Bhagwana and had locus standi to sue.
14. Shri S. L. Ahluwalia, who appeared for Shmt. Parsini plaintiff-respondent, last of all raised a contention that the will would be operative only qua the property which Bhagwana owned in his own right and would not be operative qua the property which was owned by Shmt. Naraini about which he obtained a declaratory decree against Ram Chand and Ram Piara. For this matter, he has relied on Khushi Ram v. Jaswant Ral 1966 Cri LJ 899, and has argued that no right flows to the collaterals until they file a suit against the donee and succeed therein. He goes on to argue that since Bhagwana did not file a suit for possession after the death of Shmt. Naraini, therefore, no title with regard to the property once owned by Shmt. Naraini passed on to Bhagwana and, to that extent, the will is not operative and the suit of the plaintiff with regard to that part of the property deserves to succeed as she is the daughter of Bhagwana.
15. There is no merit in this contention. Firstly the will is operative for the entire estate left by Bhagwana, including the one which was once owned by Shmt. Naraini. The moment Shmt. Naraini died on June 27, 1957 the succession to her estate opened out and the next heir admittedly was Bhagwana who was alive at that time. Since succession does not remain in abeyance, therefore, Bhagwana succeeded to that property on the death of Shmt. Naraini and on the date of his death, that is on September 2, 1958, Bhagwana left not only what he possessed before this date but also the estate which was once owned by Shmt. Naraini and, therefore, it passed on to Atma Ram and he is owner of the entire property and to no part of it Shmt. Parsini can lay claim.
16. If the argument of Mr. Ahluwalia is to be accepted on the face of It, even then the plaintiff would not succeed because if somebody gets ownership of the estate of Shmt. Naraini only after getting a decree, then that suit had to be filed within three years of the date of death of Shmt. Naraini which occurred on June 27, 1957. The present suit was filed by her on May 26, 1966, which is hopelessly barred by time with regard to the estate once owned by Shmt. Naraini. On the other hand, Atma Ram filed the suit for the estate of Shmt. Naraini against Ram Chand and Ram Piara and in that suit he succeeded. Therefore, that matter is also concluded against Shmt. Parsini plaintiff.
17. For the reasons recorded above, this appeal is accepted, the judgment and decree of the learned Single Judge, are set aside and the suit filed by Shmt. Parsini plaintiff-respondent is dismissed. Since, we are reversing the decision of the learned Single Judge on the issue of will only, we leave the parties to bear their own costs.
S.S. Sandhawalia, C.J.
18. I agree.
