KALYAN SINGH, LONDON TRAINED, CUTTER, JOHRI BAZAR, JAIPUR versus SMT. CHHOTI AND ORS.

Citation: [1989] SUPP. 2 S.C.R. 356 · Decided: 01-12-1989 · Supreme Court of India · Bench: SABYASACHI MUKHERJI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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KAL YAN SINGH, LONDON TRAINED, CUTTER, 
JOHRI BAZAR, JAIPUR 
v. 
SMT. CHHOTI AND ORS. 
DECEMBER I, 1989 
[SABYASACHI MUKHARJI, K. JAGANNATHA SHETTY 
AND A.M. AHMADI, JJ.] 
Indian Succession Act: Will-Execution and validity-Open to 
court to look into surrounding circumstances brought out in evidence. 
Civil Procedure Code: Order I Rule 8-Representative Suit-
Permission of court-Mandatory. 
Indian Evidence Act: Sections 63 and 79-Secondary evidence-
Correctness and proof of certified copy-Necessity of. 
This case is concerned with a garden with temples and other 
buildings at Jaipur claimed to be the property of Darjee (Tailors) com-
munity popularly known as 'Bagichi Darjian'. It was claimed by diffe-
rent persons at different intervals on different grounds. One Narayan, 
Pujari on the temples was said to have sold the Bagichi in favour of one 
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Khawas Bala Bux. Darjee community filed a suit for cancellation of 
that sale and declaration of its right to administer the property. The 
Trial Court dismissed the suit bnt on appeal District Judge decreed it 
and this decree was affirmed by the Chief Court of Jaipur. But after 23 
years on the death of Narayan his eldest son Bhonrilal-respondent No. 3 
herein who became the Pujari attempted to get his name mutated in 
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revenue records as owner of the Bagichi. On behalf of the Darjee com-
munity the appellant herein together with one Khawas Suraj Narayan 
filed a suit in 1951 for his ejectment. This suit was decreed in favour of 
the Darjee community. Appeal against that decree by Bhonrilal was 
dismissed by the Senior Civil Judge, Jaipur. Second appeal in the High 
Court too failed. 
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However, even before the disposal of the aforesaid Second appeal, 
Gangaram the younger brother of Bhonrilal started another round of 
litigation. He filed a declaratory suit claiming the ownership of the 
Bagichi and temples on the basis of sale deed dated Baishakh Sudi 12th 
Samvat 1932 (about 1875 A.D.) and a Will purported to be executed in 
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1916A.D.inhisfavour. 
356 
KALYAN SINGH v. SMT. CHHOTI 
357 
The Trial Judge decreed the suit in his favour. The defendants' 
appeal was dismissed hy the District Judge upholding the validity of the 
said Sale Deed and the Will. On further appeal, the High Court rejected 
the validity of the Sale Deed as well as that of the Will which formed the 
foundation of Ganga Ram's title. But instead of allowing the appeal and 
dismissing the suit the High Court declined to interfere wit_h the decree 
of the Court below though holding that the plaintiff's suit was a fruitless 
exercise. 
Kalyan ·Singh the defendant challenged the decree of the High 
Court in this Court on two counts. Firstly that the suit against Bhonrilal 
was of a representatives character which could not be nullified by the 
present suit against individuals. Secondly the High Court after discard-
ing the Sale Deed and the Will ought to have non-suited the plaintiff 
since there was no other material whatever to support the title. While 
allowing the appeal and modifying the judgment and decree of the High 
Court, this Court, 
HELD: In the absence of permission under Order I Rule 8 CPC to 
file a representative suit which is mandatory any member of the 
community may successfully bring a suit to assert his right in the 
community property or for protecting such property. Such a suit need 
not comply with the requirements of Order I Rule 8 C.P.C. and the suit 
against Bhonrilal even if it was not a representatives suit on behalf of 
the Darjee Community would be a suit of this category. [363D-EJ 
It is essential that trust worthy 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. 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 case of reach a proper conclusion on 
the nature of the evidence adduced by the party. [366E-FI 
The Will in the instant case, constituting the plaintiff
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