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Case Number

Letters Patent Appeal No. 153 of 1976

Attorney(S)

Roop Chand Chaudhry
with K.C. Puri.
B.R. Bahl
with Ashok Bahl

Judges

S.S Sandhawalia, C.J
G.C Mital, J.

Acts

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Smart Summary

Structured Summary of the Opinion (Gokal Chand Mital, J.)

Factual and Procedural Background

Kanhaya Lal owned a house in Ferozepore Cantt and is alleged to have executed a will dated 15 August 1966 in favour of Phool Chand. Kanhaya Lal died on 22 February 1967. Phool Chand, as legatee, filed a petition for ejectment under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 on 1 June 1971 against Amrit Lal (described as grandson of Kanhaya Lal's father's brother) for a portion of the house which Amrit Lal occupied.

In response, Amrit Lal filed a suit on 10 February 1972 against Phool Chand seeking a declaration that he was owner in possession of the house, denying tenancy and denying the will set up by Phool Chand, and claiming a perpetual injunction. The trial Court dismissed Amrit Lal's suit by judgment and decree dated 8 March 1973; the first appellate Court maintained that dismissal on 24 December 1973. On second appeal to the High Court, a learned single Judge allowed Amrit Lal's appeal on 27 October 1975, granting a decree that his title over the house is good against Phool Chand except the true owner and awarding a perpetual injunction restraining Phool Chand from interfering with his possession. The single Judge held that the execution of the will was not proved.

Phool Chand obtained leave to prefer a Letters Patent appeal against the learned single Judge's decision. A central factual element relied on by Phool Chand was a prior, certified copy of the statement of an attesting witness (Locan Chand) given in an earlier suit by Phool Chand against Smt. Padma Wati (Suit No. 122 of 1972), produced as Exhibit D-1. In the earlier suit (filed 10 July 1970) Smt. Padma Wati did not appear and an ex parte decree was drawn on 25 December 1970. The present dispute required the Court to determine whether the will had been duly executed and whether the previous statement (Exhibit D-1) was admissible under Section 33 of the Evidence Act.

Legal Issues Presented

Whether the execution of the will dated 15 August 1966 was duly proved and admissible in evidence.
Whether the previous statement of an attesting witness (Exhibit D-1) made in an earlier proceeding is admissible under Section 33 of the Evidence Act; specifically, whether the proviso's three ingredients were satisfied (same parties or their representatives-in-interest; right and opportunity to cross-examine in the first proceeding; substantially the same questions in issue).
Whether Amrit Lal could obtain a decree (declaration of possessory title and perpetual injunction) based on his possession of part of the house even though Phool Chand's will was not proved.

Arguments of the Parties

Appellant (Phool Chand) — As Presented in the Opinion

Asserted that the previous statement of Locan Chand (Exhibit D-1), given in an earlier judicial proceeding, was admissible under Section 33 of the Evidence Act and that the proviso's ingredients were satisfied.
Produced Exhibit D-1 (certified copy of Locan Chand's statement), called Dharam Singh (son of the scribe Thakar Singh) to prove the scribe's signatures on the will, and produced a handwriting expert who opined that the signatures on the will were Kanhaya Lal's.
Relied on authorities (Krishnayya Surya Rao v. Raja of Pittapur and Karri Venkata Narasayyamma v. Pentapati Venkata Rattamma) to contend that Amrit Lal could be treated as a representative-in-interest of Smt. Padma Wati for purposes of Section 33's proviso.
Advanced a further contention (recorded in the opinion) that, if the defendant's title is not proved, the plaintiff also cannot succeed on the defendant's weakness — i.e., that Amrit Lal had not proved his ownership and therefore the suit should be dismissed.

Respondent (Amrit Lal) — As Presented in the Opinion

Contested the will: produced a handwriting expert who stated that the signatures on the will did not tally with Kanhaya Lal's admitted signatures.
Asserted possessory rights: it was not disputed that Amrit Lal was in possession of part of the house, including during Kanhaya Lal's lifetime; he relied on possessory title and protection against all except the true owner.
Relied on Section 110 of the Evidence Act and cited precedents (including Nizam-Ud-Din v. Naranjan Das, Ismail Ariff v. Mahomed Glous, Abdul Hamid v. Saribuland Khan) to support entitlement to a declaration and injunction on the basis of possessory title.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Krishnayya Surya Rao v. Raja of Pittapur, AIR 1933 PC 202	Cited by appellant to support the contention that one party may be a "representative-in-interest" of another under the proviso to Section 33.	The Court read the decision and concluded that, on the facts of this case, it did not support appellant's contention; the Court rejected reliance on this authority for treating Amrit Lal as representative-in-interest of Smt. Padma Wati.
Karri Venkata Narasayyamma v. Pentapati Venkata Rattamma, AIR 1957 An Pra 378	Also cited by appellant in support of the representative-in-interest argument under the proviso to Section 33.	The Court held that this decision, read plainly on the facts here, did not assist the appellant; it did not establish that Amrit Lal was a representative-in-interest of Smt. Padma Wati.
Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79	Authority relied upon to support the Court's interpretation of representative-in-interest and admissibility under Section 33.	The Court treated this case as one of a group of authorities that supported the learned single Judge's view that the proviso to Section 33 was not complied with in the present facts.
Sundara Rajali v. Gopala Thevan, AIR 1943 Mad 100	Authority used to support the Court's approach to the proviso to Section 33.	The Court cited it as supporting the conclusion that the proviso's conditions were not satisfied on these facts.
Raj Mangal Misir v. Mathura Dubein, (1916) ILR 38 All 1	Authority considered relevant to the interpretation of representation-in-interest and admissibility under Section 33.	Used by the Court to bolster the view that Exhibit D-1 was not admissible under the proviso.
Poonam Chand v. Moti Lal, AIR 1955 Raj 179	Authority supporting the Court's interpretation of Section 33's proviso.	The Court cited it as further support for rejecting admissibility of the prior statement under the proviso.
Nizam-Ud-Din v. Naranjan Das, AIR 1927 Lah 841	Cited in relation to the proposition that possession can ground a possessory title and entitlement to relief under the circumstances (invoked with Section 110 of the Evidence Act).	The Court relied on it (along with other precedents) in upholding the learned single Judge's grant of a declaration and injunction to Amrit Lal on the basis of possessory title.
Ismail Ariff v. Mahomed Glous, (1893) ILR 20 Cal 834 (PC)	Authority cited in support of the principle that possession can give rise to a protectable possessory title.	The Court cited it as supporting Amrit Lal's entitlement to a declaration and injunction on the basis of possession.
Abdul Hamid v. Saribuland Khan, 78 Pun Re. 1902	Another authority cited for the rule that possession may found a protectable possessory title.	Used by the Court as part of the authorities authorizing protection of possessory title in these circumstances.

Court's Reasoning and Analysis

The Court conducted a textual and fact-specific analysis centred on Section 33 of the Evidence Act (previous statements in earlier proceedings). The Court first set out Section 33 and identified the three essential ingredients in the proviso that must be satisfied for a previous statement to be admissible:

That the earlier proceeding was between the same parties or their representatives-in-interest;
That the adverse party in the first proceeding had the right and opportunity to cross-examine;
That the questions in issue were substantially the same in the first and the second proceeding.

The Court examined the history of the earlier litigation: Phool Chand had filed suit on 10 July 1970 against Smt. Padma Wati alone, she did not appear, and the suit proceeded ex parte and was decreed on 25 December 1970. Locan Chand was examined in that earlier proceeding as an attesting witness, and his statement was later produced as Exhibit D-1.

On the first ingredient, the Court analysed whether Amrit Lal could be treated as a representative-in-interest of Smt. Padma Wati. The Court found the parties' interests to be mutually exclusive and antagonistic: Phool Chand sought to establish the will, Amrit Lal sought to inherit as a relative and relied on possessory title, while Smt. Padma Wati (who did not participate) would have a claim by succession as a widow. Because the interests were inconsistent and antagonistic, Amrit Lal could not be considered a representative-in-interest of Smt. Padma Wati; accordingly the first condition of the proviso was not satisfied.

On the second ingredient, the Court emphasised that it was not proved that Smt. Padma Wati had been duly served or that the ex parte proceedings afforded her the right and opportunity of cross-examination in the earlier suit; therefore this condition was also not shown to be fulfilled.

The Court concluded that since either of the first two ingredients (and at least the first) was not satisfied, Exhibit D-1 (the previous statement of Locan Chand) was not admissible under the proviso to Section 33 and could not be used as evidence to prove the execution of the will. The Court also noted other indicia undermining the will's genuineness: the will was unregistered, not scribed by a regular petition writer, and had not been produced for over four years — circumstances that the learned single Judge had found suspicious and which the present Court affirmed.

Having disallowed the only previous-statement evidence and noting absence of other material to prove due execution, the Court affirmed the learned single Judge's conclusion that the will was not proved and was not a genuine document.

Turning to Amrit Lal's entitlement to relief, the Court observed that Amrit Lal was undisputedly in possession of part of the house, including during Kanhaya Lal's lifetime. On that factual basis, the Court held that Amrit Lal was entitled to a declaration of possessory title (good against the world except the true owner) and to a perpetual injunction restraining Phool Chand from interfering with his possession. The Court relied on Section 110 of the Evidence Act and authorities cited in support of protecting possessory title.

Applying these analyses, the Court found no merit in the appeal and dismissed it, affirming the learned single Judge's order and leaving the parties to bear their own costs.

Holding and Implications

HOLDING: The Letters Patent appeal is DISMISSED.

Direct consequences and immediate implications:

The Court held that Exhibit D-1 (the previous statement of Locan Chand) is not admissible under the proviso to Section 33 of the Evidence Act because the proviso's conditions were not satisfied (Amrit Lal was not a representative-in-interest of Smt. Padma Wati, and service/right of cross-examination in the earlier proceeding was not proved).
The Court affirmed the learned single Judge's finding that the will dated 15 August 1966 was not duly proved and that its genuineness was doubtful.
The decree in favour of Amrit Lal (declaration of possessory title good against all except the true owner and a perpetual injunction) stands, supported by Section 110 of the Evidence Act and cited authorities recognizing protection of possessory title.
The appeal is dismissed and, on the peculiar facts of the case, the Court ordered that the parties shall bear their own costs.

The opinion does not purport to lay down a novel or broad precedent beyond its application of Section 33 and Section 110 to the specific facts; the Court applied established principles to the particular evidentiary and possessory circumstances before it.

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Phool Chand v. Amrit Lal .

Gokal Chand Mital, J.:— In order to appreciate the facts of this case, the following pedigree-table deserves to be noticed:—

Kanhaya Lal owned a house in Ferozepore Cantt and is alleged to have made will dated 15th August, 1966, in favour of Phool Chand, his wives brother, as his only son Tara Chand had died long before in the year 1949 and his two wives, who were sisters, had also predeceased him. Kanhaya Lal died on 22nd of February, 1967.

2. Phool Chand, legatee from Kanhaya Lal filed a petition for ejectment under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, on Ist June, 1971, against Amrit Lal, grandson of father's brother of Kanhaya Lal, from a portion of the house which he was occupying. When Amrit Lal came to know of the ejectment petition, he filed a suit on 10th of February, 1972, against Phool Chand for a declaration that he was owner in possession of the house and denied the tenancy as also the will set up by Phool Chand and claimed a permanent injunction against him not to interefere in his possession. It is not disputed that Phool Chand was in possession of no part of the house whereas Amrit Lal was in possession of a part of the house. Phool Chand contested the suit and set up the will dated 15th Aug. 1986, and claimed ownership of the house thereunder. The trial Court by judgement and decree dated 8th March, 1973, dismissed the suit which was maintained by the first appellate Court on 24th of Dec. 1973, and on second appeal by Amrit Lal to this Court, a learned single Judge allowed his appeal on 27th of October, 1975, and granted him a decree that his title over the house is good against Phool Chand except the true owner and further granted him a decree for perpetual injunction restraining Phool Chand from interfering with his possession over the house. While allowing the appeal, the learned single Judge found that the execution of the will set up by Phool Chand was not proved as none of the attesting witnesses nor the scribe thereof was produced to prove the same. In fact, the learned single Judge came to the conclusion that there was no evidence to prove the execution of the will. It was further held that the will was surrounded by suspicious circumstances as the same was alleged to have been executed at Ferozepore Cantt where regular petition writers were available, it was unregistered and did not see the light of the day for over four years till late 1970, when it was set up in a suit against Smt. Padma Wati widow of the predeceased son of Kanhaya Lal. It was also found that Amrit Lal was proved to be the first cousin's son of Kanhaya Lal. It was further found that since Amrit Lal was in possession of part of the house, he was entitled to a declaration and injunction on the basis of possessory title which deserved to be protected against the whole world except the true owner.

3. Feeling dissatisfied with the decision of the learned single Judge Phool Chand defendant has came up in Letters Patent appeal with leave of the learned Single Judge. One of the main points which came up for consideration before the Courts below was whether the execution of the will dated 15th of Aug. 1966, was proved in this case or not. No attesting witness of the will nor its scribe was produced in this case, as they had died by the time they were to be examined. However Phool Chand produced a certified copy of the statement of Locan Chand, one of the attesting witnesses, as Exhibit D-1 who was examined P.W 2 in the Court of Shri R.S Sharma, Subordinate Judge Ist Class, Ferozepore, in Civil Suit No. 122 of 1972 - Phool Chand v. Smt. Padma Wati, which was duly proved by the Reader of the Court. Besides the above, Phool Chand produced Dharam Singh D.W 4, son of Thakar Singh scribe, who proved the signatures of his father on the will. Both the sides also examined handwriting experts. The expert produced by Phool Chand stated that the signatures on the will were of Kanhaya Lal whereas the expert produced by Amrit Lal stated that the signatures of Kanhaya Lal on the will did not tally with his admitted signatures The first two Courts accepted the document Exhibit D-1, the previous statement of Locan Chand, at testing witness, to be legal evidence under Section 33 of the Evidence Act and on its basis held the will to be duly proved whereas the learned single Judge held that the ingredients of the proviso to Section 33 of the Evidence Act were not complied with and, therefore, it was inadmissible in evidence.

4. To prove the due execution of the will, counsel for the appellant has stated that the previous statement of Locan Chand attesting witness, contained in Exhibit D-1, was admissible in evidence under Section 33 of the Evidence Act and all the ingredients were proved and the learned single Judge was in error in rejecting this document. In order to appreciate the argument, Section 33 of the Evidence Act deserves to be noticed which is in the following terms:—

“33. Relevancy of certain evidence for proving, in subsequent proceeding the truth of facts therein stated.

Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse arty, or if his presence cannot be obtained without any amount of delay or expense which under the circumstances of the case, the Court considers unreasonable:—

Provided that the proceeding was between the same parties or their representatives in interest;

that the adverse party, in the first proceeding had the right and opportunity to cross-examine

that the questions in issue were substantially the same in the first as in the second proceeding.

Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section.”

5. A reading of the above Section shows that the previous statement of Locan Chand would have been relevant in this case it the ingredients of the proviso were complied with Those ingredients are—

i - that the earlier proceedings between the same parties or their predecessor-in-interest;

ii - that the adverse party in the first proceeding had the right and opportunity to cross-examine; and

iii - that the question in issue was substantially the same in the first as in the second proceeding.

6. In order to find out whether the aforesaid three ingredients to be satisfied in this case, the history of the previous litigation deserves to be noticed. Phool Chand filed a suit on 10th of July, 1970, against Smt. Padma Wati alone, who admittedly was in Meerut and was in occupation of no part of the house. The basis of that suit was the will in favour of Phool Chand. Smt. Padma Wati did not appear to contest the suit and after ex parte evidence, the same was decreed on 25th of December, 1970, vide Exhibit D-9. In those proceedings, Locon Chand was examined as an attesting witness of the will to prove the same, which statement is now being sought to be produced as the sole evidence to prove the will.

7. The aforesaid facts clearly show that the two suits are not between the same parties. The question which will arise for consideration is whether Amrit Lal can be said to be representative-in-interest of Smt. Padma Wati and if the answer is in affirmative, then the first ingredient will be satisfied, otherwise not. On the facts of the case, it is clear that Phool Chand is wanting to get the house on the bases of the will, Amrit Lal is wanting to inherit the house as first cousin's son of Kanhaya Lal as also on the basis of possessory title and Smt. Padma Wati, although was involved in a suit by Phool Chand, has not come forward in any of the two proceedings to lay claim to the house. In any event, her claim would be based on succession as widow of a predeceased son. In this manner, the claim of all the three parties would be mutually exclusive, inconsistent and antagonistic to the interest of each other. Therefore, unless Amrit Lal is representative-in-interest of Smt. Padma Wati, the first condition would not be satisfied and from the aforesaid facts, it is amply clear that the interest of Amrit Lal is wholly opposed to the interest of Smt. Padma Wati and, therefore, he cannot be called to be representative-in-interest and in this view of the matter, we are firmly of the view that the first ingredient of the proviso to Section 33 of the Evidence Act is not fulfilled.

8. Even the second condition of opportunity to Smt. Padma Wati to cross-examine the attesting witness, in the first proceeding has not been proved in this case as Phool Chand has not proved in these proceedings that Smt. Padma Wati was duly served and the ex parte proceedings were well-based. Once the two ingredients of the proviso to Section 33 of the Evidence Act or any one of them is not satisfied, the previous statement of Locan Chand would not be admissible in evidence and the learned single Judge was right in rejecting the same.

9. Shri Roop Chand Chaudhry, appearing for the appellant, urged that Amrit Lal would be a representative-in-interest of Smt. Padma Wati in view of Krishnayya Surya Rao v. Raja of Pittapur, AIR 1933 PC 202 and Karri Venkata Narasayyamma v. Pentapati Venkata Rattamma, AIR 1957 An Pra 378, as both are interested in disputing the will set up by Phool Chand. We find no merit in the argument which is negatived on a plain reading of the aforesaid two decisions which, on the facts of this case, clearly go against the contention raised. The relevant portion from the judgement of the Privy Council may be reproduced below:—

“The person who is called by Proviso (1) a ‘representative in interest’ of another is a person who was a party to the first proceedings. Whatever may have been the intention of those who framed the Section, the first proviso exactly inverts the requirements of the English law, which requires that the parties to the second proceeding, should legally represent the parties to the first proceeding, or be their privies in estate. The first proviso requires that the party to the first proceeding should have represented in interest the party to the second proceeding in relation to the question in issue in the first proceeding to which the facts which the evidence states were relevant. It covers not only cases of privity in estate and succession of title, but also cases where both the following conditions exist, viz. (1) the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first Proceeding, and (2) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical”.

10. The view which the learned single Judge took and which is being affirmed by us is further supported by Dal Bahadur Singh v. Bijai Bahadur Singh, AIR 1930 PC 79; Sundara Rajali v. Gopala Thevan, AIR 1943 Mad 100; Raj Mangal Misir v. Mathura Dubein, (1916) ILR 38 All 1 and Poonam Chand v. Moti Lal, AIR 1955 Raj 179.

11. For the reasons recorded above, we are firmly of the view that Exhibit D-1, the previous statement of Locan Chand, the attesting witness, is not covered by the proviso to Section 33 of the Evidence Act and cannot be looked into evidence. Since there is no material on the record in support at the due execution of the will, we find no reason to differ from the finding of the learned single Judge.

12. The finding of the learned Single Judge that the will did not see the light of the day for four years and was unregistered and not scribed by a regular petition writer also throws doubt on the genuineness of the will, which doubts have not been cleared by Phool Chand, the propounder of the will. Accordingly, We also affirm finding of the learned Single Judge that the will is not a genuine document.

13. Once Phool Chand is not proved to be the owner of the house under the will, the next question that arises for consideration is whether Amrit Lal could succeed in his suit without proving his title to the property. Chaudhary Roop Chand has argued that a plaintiff cannot succeed on the weakness of the defendant and even if the defendant is not proved to be the owner under the will, since the plaintiff has failed to prove his ownership, the suit deserves to be dismissed. He has submitted that the learned single Judge has only found that Amrit Lal is proved to be first cousin's son of Kanhaya Lal and not his next heir in the presence of Smt. Padma Wati, predeceased son's wife, and, therefore, in spite of has being a relation of Kanhaya Lal, he is not owner of the house and therefore, on the finding of the learned single Judge alone, the suit could not be decreed.

14. It is not disputed that Amrit Lal is in possession of part of the house in dispute and it is further not disputed that he was in occupation thereof even during the lifetime of Kanhaya Lal. In this view of the matter, once Amrit Lal is found to be in occupation of part of the house, then he is entitled to seek a declaration of possessory title as, good against the whole world including Phool Chand, except the true owner, and also for a perpetual injunction restraining him from interfering with his possession by filing a petition for ejectment under the East Punjab Urban Rent Restriction Act due to the filing of which Amrit Lal had to file the present suit. We find that the learned single Judge was right in granting a decree to Amrit Lal on the aforesaid facts on the basis of Section 110 of the Evidence Act and Nizam-Ud-Din v. Naranjan Das, AIR 1927 Lah 841; Ismail Ariff v. Mahomed Glous, (1893) ILR 20 Cal 834 (PC) and Abdul Hamid v. Saribuland Khan, 78 Pun Re. 1902.

15. For the reasons recorded above, we find no merit in this appeal which is dismissed but on she peculiar facts of this case we leave the parties to bear their own costs.

16. S.S Sandhawalia, C.J:— I agree.

17. Appeal dismissed.

Phool Chand v. Amrit Lal .

Structured Summary of the Opinion (Gokal Chand Mital, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Phool Chand) — As Presented in the Opinion

Respondent (Amrit Lal) — As Presented in the Opinion

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Phool Chand v. Amrit Lal .

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