Damodari Devi and Others vs Dhani Devi and Others

Dharam Chand Chaudhary, J.—Plaintiff Damodari Devi (since dead) was in second appeal before this Court. Judgment under challenge is dated 28th April, 1999, passed by learned District Judge, Solan in Civil Appeal No. 29-S/13 of 1992/98. As a matter of fact, suit bearing No. 62-1 of 1990 for possession of the land comprising Khasra Nos. 3, 5, 6, 16, 23, 25, 37, 51 and 61, measuring 40 bighas 10 biswas, situate in village Gajredi, Pargana Khala, Tehsil Arki, District Solan, filed by deceased plaintiff Smt. Damodari Devi aforesaid, was dismissed by learned Sub Judge 1st Class, Arki, vide judgment and decree dated 17th January, 1992. In appeal, learned District Judge has affirmed the judgment and decree passed by the trial Court and has dismissed the appeal.

The appeal has been admitted on the following substantial questions of law:

"1. Whether in a reversionary suit where only declaration was sought against the alienations made by the widow being limited owner, could the question of legitimacy of a child be said to be directly and substantially an issue so as to render the subsequent suit not maintainable being barred by doctrine of res-judicata where such question was directly and substantially an issue?

Whether it was essential for both the Courts below to have considered the effect of the subsequent legislation, i.e., Hindu Succession Act, to determine the status of Smt. Ajudhya at the time of her death enabling the plaintiff to claim succession, was not Smt. Ajudhya who was holding limited estate admittedly prior to the enforcement of the said Act, became full owner thereafter once the alienations made by her were declared to be illegal. Were not such property be deemed to be in her possession on account of said decree at the time of enforcement of the said Act, entitling her to claim status of being full owner after the enforcement of Hindu Succession Act?"

It is the estate of Shingaroo, which is the subject matter of dispute in the present lis. As a matter of fact, he was owner of the suit land. He died sometime before December, 1949. The suit land on his death came in the hands of his widow Smt. Ajudhia Devi, however, only as a limited owner. She, vide sale deed dated 5th December, 1949, sold the suit land to one Gosaun, predecessor-in-interest of defendants No. 1 and 2 S/Shri Ram Chand and Dhani Ram (since dead) and survived by respondents No. 10(a) to 10(f) and 11(a) to 11(f) herein. Aforesaid Ram Chand and Dhani Ram had further alienated some portion of the suit land to defendants No. 3 to 7, namely Bharat Ram, Shiv Ram, Lekh Ram (sons), Smt. Sarswati (widow) of one Dhungo and Shri Paras Ram son of Ganga Ram. In the plaint, the suit land claimed to be in the possession of defendants No. 3 to 7.

Shri Jiunu, predecessor-in-interest of defendant No. 8 Dhani Ram, one of the reversioners, filed suit challenging therein the sale of the suit land by Smt. Ajudhia Devi aforesaid to deceased Gosaun, predecessor-in-interest of defendants No. 1 and 2 being illegal, null and void and not for legal necessity and also as per customary law, i.e., widow not competent to alienate the estate of her husband except for legal necessity, prevailing in the area where the suit land was situated and binding on the parties. The suit was decreed vide judgment dated 23rd January, 1951 passed by learned Sub Judge, Solan. Appeals filed before learned District Judge, Mahasu and thereafter in the Court of Judicial Commissioner, Himachal Pradesh were dismissed. As per further case of the plaintiff, on declaration of the sale illegal, null and void, the suit land reverted back to the alienator, i.e., Smt. Ajudhia Devi, the mother of the plaintiff. Smt. Ajudhia Devi died on 11th December, 1988. The plaintiff, who claims herself to be the legitimate child of Shingaroo born to deceased Ajudhia Devi from his loins, submits that she is entitled to succeed to the estate of her mother Smt. Ajudhia Devi aforesaid. She allegedly was not a party to the earlier suit and as such not bound by the finding with respect to her legitimacy recorded while decreeing that suit in favour of deceased Jiunu. Also that, even if she is held to be illegitimate child of deceased Shingaroo, in that event also she is entitled to succeed to the estate of her mother Smt. Ajudhia Devi under the provisions of Hindu Succession Act.

Vendees, defendants No. 1 and 2, though filed their written statement, however, not disputed the averments made in the plaint. As per their version, the plaintiff has relinquished her right after becoming owner by executing a writing for consideration, therefore, it is they who are owners in possession of the suit land.

Defendant No. 8, however, has contested and resisted the suit. Preliminary objections qua its maintainability, locus standi, res-judicata, estoppel and also collusiveness have been raised. On merits, it is averred that in Civil Suit No. 66/1 of 1989 he filed against defendants No. 1 to 7 herein for declaration that it is he who has succeeded to deceased Ajudhia Devi in view of the decree passed by civil Court on 23rd January, 1951 in Civil Suit No. 30/1 of 1950 and as such has become owner of the suit land, hence entitled to possession thereof and that the alienation of some portion of the suit land by defendants No. 1 and 2 in favour of defendants No. 3 to 7 is void, ineffective and inoperative qua his right. Smt. Damodari Devi, deceased plaintiff herein appeared as one of the witnesses on behalf of defendants No. 1 and 2 and deposed that she has received a sum of Rs. 1300/- from the said defendants and relinquished her rights in the suit land in their favour. Also that the judgment and decree passed by learned Sub Judge, Solan on 23rd January, 1951 is binding on the plaintiff and as such she cannot re-agitate the question of her being the legitimate daughter of late Shri Shingaroo at this stage because the said judgment according to him has attained finality. The plaintiff never challenged the judgment and decree so passed during the life time of her mother and now by filing the suit in connivance with defendants No. 1 and 2 she allegedly is abusing the process of law. An application she filed earlier under Order 1 Rule 10 of the Code of Civil Procedure was also dismissed.

In replication to the written statement filed on behalf of defendant No. 8, the plaintiff has denied the contents of preliminary objections being wrong and reiterated her entire case as set out in the plaint.

On the pleadings of the parties, learned trial Court has framed following issues:

"1) Whether the plaintiff is entitled to succeed to the suit land being the daughter of deceased Smt. Ajudhia, as alleged? OPP

2) Whether the plaintiff has relinquished the rights after becoming owner vide writing executed, as alleged? OPD1-2.

3) Whether the suit is not maintainable, as alleged? OPD-8.

4) Whether the plaintiff has no locus-standi to file the suit, as alleged? OPD-8.

5) Whether the suit of the plaintiff is hit by the principle of res-judicata, as alleged? OPD-8.

6) Whether the suit of the plaintiff is time barred? OPD-8.

7) Whether the plaintiff has filed the suit in collusion with defendants No. 1 and 2, if so, its effect? OPD-8.

8) Relief."

The parties were put to trial on all the issues. After holding full trial and taking into consideration the oral as well as documentary evidence, learned trial Court while answering issue No. 1 has concluded that the plaintiff is not entitled to succeed being not born to Smt. Ajudhia Devi from the loins of Shingaroo, issue No. 1 was answered against her, whereas in view of findings on issue No. 1, issue No. 2 as having become redundant. Remaining issues No. 3 to 7 qua maintainability, locus-standi, res-judicata, limitation and collusiveness of the suit etc. though were answered in negative, i.e., against the defendants, however, in view of findings on issue No. 1, the suit was dismissed. Learned lower appellate Court has also dismissed the appeal vide judgment and decree under challenge herein.

Shri G.D. Verma, learned Senior Advocate assisted by Mr. B.C. Verma, Advocate, has contended that the plaintiff being not party in Civil Suit No. 30/1 of 1950 the findings in the judgment Ext. PZ/2 that she is not legitimate child of Shingaroo passed in that suit are not binding on her. Also that the plaintiff is not claiming the suit land through her mother Smt. Ajudhia Devi, but as of her own right because as according to Mr. Verma even if she is illegitimate child, Smt. Ajudhia Devi is entitled to inherit the suit property. It is further submitted that the children even may be illegitimate, however, will remain children for the purpose of Sections 15 and 16 of the Hindu Succession Act. The question of dismissal of the application under Order 41 Rule 27 of the Code of Civil Procedure has also been urged.

On the other hand, Mr. Virender Singh Chauhan, Advocate, learned Counsel representing the contesting defendant has strenuously contended that as per evidence available on record plaintiff was born to Smt. Ajudhia Devi much after the death of Shingaroo. Her mother Smt. Ajudhia Devi after the death of Shingaroo started living with one Chaudhary. The attention of this Court has also been invited to the judgment and decree passed in Civil Suit No. 66/1 of 1989 filed by defendant No. 8 whereby defendant No. 8 Dhani Ram has been held owner in possession of the suit land. The appeal against the judgment and decree passed by learned District Judge, Solan in Civil Appeal No. 40-S/13 of 1992/98 preferred by deceased defendants No. 1 and 2 Ram Chand and Dhani Ram was also dismissed by the lower appellate Court vide judgment and decree dated 28th April, 1999. According to Mr. Chauhan, not only this, but the second appeal preferred in this Court also stands dismissed vide judgment and decree dated 23rd June, 2010. Therefore, the judgment and decree passed in Civil Suit No. 66/1 of 1989 has attained finality. As regards the application under Order 41 Rule 27 of the Code of Civil Procedure, the same is stated to be rightly dismissed being filed at a belated stage, i.e., in the year 1999, whereas, the suit was of 1989. Otherwise also, there are no pleadings and proof produced that the plaintiff was born to Smt. Ajudhia Devi from the loins of Shingaroo. The birth certificate sought to be produced by way of additional evidence could have not been relied upon being legally inadmissible. It has, therefore, been urged that the appeal is liable to be dismissed.

The legal questions for adjudication are that a suit where only in the previous suit filed by one of the reversioners challenging the alienation of the suit land by a widow without legal necessity, the question of legitimacy of the plaintiff not directly and substantially in issue what is the effect of finding to this effect recorded by both Courts below and that the widow who alienated the suit land on coming into force the Hindu Succession Act became full owner of the suit land and irrespective of the judgment and decree Ext. PZ/2 that the previous suit filed by the reversioner she was deemed to be in possession of the suit land.

Now if examining these questions in the given facts and circumstances and also the arguments addressed on both sides the stand in Civil Suit No. 30/1 of 1950 filed by deceased Jiunu, predecessor-in-interest of defendant No. 8, the reversioner was that the widow (Smt. Ajudhia Devi) holding the suit land as a limited owner could have not sold the same being an ancestral property except for legal necessity whereas that of the contesting defendants that the suit land was sold by Smt. Ajudhia Devi to solemnize the marriage of her daughter none else but Damodari, the plaintiff (since dead) in the present suit. The question of legitimacy of deceased plaintiff Damodari cropped up before the Court to decide the point in issue in that suit for the reason that the charge with regard to the marriage of deceased plaintiff Damodari on the estate of Shingaroo would have only been in a situation had she been his legitimate daughter. The Court in the previous suit after taking into consideration the evidence available on record, has concluded that Smt. Damodari aforesaid was not legitimate child of Shingaroo and as such any debt taken to celebrate her marriage is not a legitimate charge on Shingaroo''s property. It is apt to reproduce the relevant extract of the judgment Ext. PZ/2, which reads as follows:

".....To prove legal necessity the defdt produced 3 witnesses D.W. Achhru Ram and Dhani Ram alleged that they advanced money for the marriage of daughter of Must. Ajudhia. They also admitted that the age of this daughter is about 22 years and Must. Ajudhia is widow from 26 years. This means that the daughter for whose marriage she raised debits was not a legitimate child of Shingaroo deceased. The pltff. Witness Saju and Joti alleged that defdt. No. 2, after the death of her husband used to live with one Chowdhri. As the daughter of defdt. No. 2 was not legitimate child of Shingaroo deceased so any debts incurred to celebrate her marriage cannot be a legitimate charge on Shingaroo''s property which came to the defdt. No. 2 as widow''s estate. Hence such debts cannot be called as legal necessity...."

Interestingly enough, Smt. Ajudhia was defendant No. 2 in that suit. She opted for not putting appearance and contested the suit. As a matter of fact, it was for her to have thrown some light qua this aspect of the matter as she being mother of Damodari, the plaintiff herein could have stated positively something authentic as to when she was born and from whose loins. Her silence leads to the only conclusion that plaintiff Damodari was not born to her from the loins of Shingaroo and it was for this reason that she was not mentally prepared to contest the suit and appear in the witness box as a witness to face the questions which were to be put to her in her cross-examination. Deceased plaintiff Damodari though was not a party to Civil Suit No. 30/1 of 1950, however, her mother Ajudhia Devi was defendant No. 2. Said Smt. Damodari was neither a necessary nor a proper party in the suit. The finding qua her legitimacy recorded in the judgment and decree Ext. PZ/2, which as matter of fact was affirmed and upheld upto the Court of Judicial Commissioner, Himachal Pradesh and as such has attained the finality, is binding on each and every one including deceased plaintiff Smt. Damodari.

Now if coming to the Hindu Succession Act, 1956, no doubt, it has been enforced on 17th June, 1956 and Smt. Ajudhia Devi has died much after its enforcement, i.e., 11th November, 1988. The declaration to the effect that she was not competent to alienate the suit land being a widow and having limited rights without legal necessity was granted in favour of Jiunu reversioner, the predecessor-in-interest of defendant No. 8 well before enforcement of Hindu Succession Act, i.e., on 23rd January, 1951. Said Smt. Ajudhia Devi opted for not putting appearance to contest the suit. Even on coming into force the Hindu Succession Act she never asserted her right to have become full owner of the suit land though she died after a period over 22 years on its enforcement, i.e., 11th November, 1988. On the other hand, the judgment and decree in Civil Suit No. 30/1 of 1950 has attained finality and by virtue of that it is reversioner Shri Jiunu became owner thereof. It is defendants No. 1 and 2, the vendees, seems to remain in possession of the suit land as it is for this reason defendant No. 8 Dhani Ram, the son of Jiunu reversioner filed Civil Suit No. 66/1 of 1989 for declaration to the effect that he has succeeded Smt. Ajudhia in view of the judgment of the Civil Court dated 23rd January, 1951. That suit has also been decreed and it is he who has been held owner in possession of the suit land. As a matter of fact, in that suit also the defence of defendants No. 1 and 2 was that since deceased Ajudhia Devi had a daughter namely, Damodari (deceased plaintiff) allegedly preferential legal heir as compared to defendant No. 8 (plaintiff in that suit), he was not entitled to the possession of the suit property. This point has been duly dealt with in Civil Suit No. 66/1 of 1989. The judgment and decree so passed in that suit stands affirmed by learned lower appellate Court and also by this Court as per judgment dated 23rd June, 2010, rendered in RSA No. 281 of 1999. The relevant extract of the judgment is reproduced hereunder:

"11. Another submission made by learned counsel for the appellants-defendants is that even though Ajudhya never remained in physical possession of the suit property after she made the sale, but she had the right to possess it when the sale had been declared void, vide judgment Ex. PW-1/A. According to him, the effect of the judgment was that possession of the appellants became permissive and it was for and on behalf of Ajudhya Devi. This submission is also without merit, in view of the reasons already recorded.

In the earlier suit, it was pleaded that the sale was not for legal necessity, because plea that Damodri Devi, daughter of Ajudhya, for solemnizing whose marriage money was required, was not the daughter of Shingaru, but was born four years after his death, was upheld. In view of that finding in the earlier suit, vide judgment Ex. PW-1/A, two Courts below have held that Damodri was not a reversioner. That judgment binds the present appellants-defendants, because they were party to the suit in which that judgment was delivered and, therefore, they cannot be heard to say that that judgment cannot be relied upon."

It is, therefore, to be seen that in the judgment dated 23rd June, 2010 rendered by a Coordinate bench in RSA No. 281 of 1999 all these questions had already been dealt with and the plaintiff''s claims rejected.

In the totality of circumstances and taking into consideration that Smt. Ajudhia Devi, the mother of the plaintiff never asserted to get back the possession of the suit land during her life time. Even on coming into force the Hindu Succession Act deceased plaintiff Damodari is not entitled to the possession of the suit land without there being any right, title and interest. The suit for possession without there being any title is not at all maintainable.

The case law, i.e. Ram Kali Vs. Sohan Lal and Others, AIR 1972 P&H 419 : (1974) 2 ILR (P&H) 521 , Gurbachan Singh Vs. Khichar Singh and Another, AIR 1971 P&H 240 , Mst. Mohindero Vs. Kartar Singh and others, AIR 1991 SC 257 : (1990) 4 JT 265 : (1990) 2 SCALE 853 : (1991) 2 SCC 605 Supp : (1990) 2 SCR 475 Supp : (1990) 2 UJ 715 , Balwant Singh and another etc. Vs. Daulat Singh (dead) by L.Rs. and others, AIR 1997 SC 2719 : (1997) 5 JT 703 : (1997) 4 SCALE 388 : (1997) 7 SCC 137 : (1997) 2 UJ 96 : (1997) AIRSCW 2690 : (1997) 6 Supreme 385 and Baliram Atmaram Dhake Vs. Rahubai @ Saraswatibai Bhole, AIR 2009 Bom 57 : (2009) 4 BomCR 820 : (2009) 111 BOMLR 387 , is not applicable in the case in hand being distinguishable on facts.

The question of the dismissal of the application under Order 41 Rule 27 of the Code of Civil Procedure, as raised, not at all arises for consideration, as the appeal has not been admitted on any such legal question. Above all, on merits, no cogent and reliable evidence has been produced to show that the deceased plaintiff was born to Smt. Ajudhia Devi from the loins of Shingaroo. On the other this has been considered and answered against the plaintiff in previous suit No. 30/1 of 1950 vide judgment Ext. PZ/2. Therefore, the additional evidence sought to be produced is not required to decide the controversy involve in the present suit. True it is that additional evidence can be allowed to be produced, however, only if it is required for just and effective decision of the case. There is no quarrel to the legal principles settled in various judicial pronouncements cited at the bar, hence need not to be discussed.

In view of what has been said hereinabove no question of law, what to speak of substantial questions of law as formulated, arise for determination in the present case and to the contrary judgment and decree under challenge is legally and factually sustainable and as such deserves to be upheld. The appeal fails and the same is accordingly dismissed.