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TMI Blog1989 (12) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... 9; 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, 1925, wherein he admitted that he was only the Pujari of the temples. The other defendants in the suit set up rival title to the property relying upon the sale deed of Samvat 1932 in the name of Raghunath. The trail 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. A8 dated September 15, 1928. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of the plaintiff. The appellant the first defendant in the suit denied plaintiff's title to the baghichi. He also denied the title of Bhagala and Girdhari. It was maintained that the baghichi was community property of 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 ]udicata. 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. 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, 1928 of the Chief Court of the erstwhile State of Jaipur. But no reference was made to the judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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. Kalyan Singh the defendant has now appealed challenging the decree of the High Court. 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 plaintiffs 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 necessery material the conclusion one way or the other as to the nature of the previous suit will not be justified. 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 thereform. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty and had also obtained a stay order on payment of mesne profits vide Ex. A- 7. XXXXX XXXXXX 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 Ganga Ram . 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, Ramdeo 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 he deposed in the court on January 5, 1962. If we go by that age Ramdeo must have been a boy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat claim was totally destructive of Gangaram's title. It cannot be said that 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. 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 that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he estate. The widow of the testator would not get her husband's estate, if she predeceased any of her co-devisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, 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, would 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 circumstances 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, nor he has produced the register to indicate that 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. The High Court said, and in our opinion very rightly, that Ex. 3 could not be regarded as secondary evidence. Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts 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. In the result, the appeal is allowed, modifying the judgment and dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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