Indro vs Manohar

Chandra Prakash, J.

This is a second appeal against the judgment and decree dated March 31, 1966 of Shri B.R. Agarwala, II Additional Civil Judge, Aligarh, dismissing the appellant''s appeal after confirming the decree of the trial court.

The suit giving rise to this appeal was filed by the plaintiffappellant against the defendantrespondent on the allegations that one Itwari Lal was the owner of the house in dispute. On March 17, 1944 the said Itwari Lal executed a will bequeathing his property in favour of one Smt. Kalawati and after her death to one Sukhram, nephew of Itwari Lal. Itwari Lal died 15 years ago. Sukhram died during the lifetime of Smt. Kalawati. Smt. Kalawati executed a will on March 18, 1959 in favour of her sister Leelawati in respect of the house in dispute and after the death of Leelawati to Smt. Indra. Leelawati made a gift of the house in suit on August 12, 1961 in favour of defendant Manohar. It was alleged that Itwari Lal had given absolute right to Smt. Kalawati and Smt. Kalawati was the full owner and Smt. Kalawati rightly executed a will in favour of Smt. Leelawati and after the death of Smt. Leelawati the plaintiff became the owner of the house in dispute. The defendantrespondent forcibly occupied the Atta and roof of the disputed house; hence the suit for possession and for permanent injunction restraining the defendantrespondent from occupying the other portions of the house in possession of the plaintiffappellant.

The defendantrespondent resisted the claim on the ground that Smt. Kalawati had got only life interest and she was not the full owner and, therefore, she was not competent to transfer the property by a will to Smt. Leelawati. The defendant denied that he had taken forcible possession of the Atta which was under the tenancy of one Karan Singh.

The trial Court after taking evidence of the parties came to the conclusion that Smt. Kalawati got only a limited estate under the will from Itwari Lal and not the sole ownership rights and as such the plaintiff was not the owner of the disputed house and on this the trial Court dismissed the suit.

The plaintiffappellant went up in appeal to the lower appellate court and the lower appellate court confirmed the decree of the trial court and dismissed the plaintiff''s appeal.

Feeling aggrieved the plaintiff has come up in second appeal before me.

I have heard learned counsel for the parties and I have also gone through the record. After giving the matter my anxious consideration I have come to the conclusion that this appeal has no force.

The plaintiff in this case was basing her title on the will dated March 17, 1944 executed by Itwari Lal in favour of Smt. Kalawati. Both the Courts below after considering the contents of this will in extense have come to the conclusion that the will gave Kalawati only life estate and not the full estate and after the death of Kalawati the property was to go to one Sukhram son of Kalyan. This is purely a finding of fact; which cannot be challenged in appeal. Even then for the sake of caution I have reassessed the contents of this will and the very fact that Sukhram was to get the property in dispute after the death of Smt. Kalawati leaves no room for doubt that Smt. Kalawati got only a life estate and not the full estate and the full estate was bequeathed to Sukhram.

The learned counsel for the appellant, however, argued before me that according to paragraph 2 of the plaint it was alleged that Smt. Kalawati got the property in dispute as full owner on the death of Itwari Lal and the defendant admitted this allegation while making admissions and denials in his written statement. But this argument forgets the fact that subsequently the defendant pointed out that by a clerical error the word ''Swikar'' was written in place of ''Aswikar'' and he pointed out the correct position in his application (paper No. 73A1). After this application between the parties. As a matter of fact, the plaintiff has based her title on the basis of the will. The effect of the will has to be seen on the contents of the will and not on extraneous allegations.

In the end it was contended on behalf of the plaintiffappellant that the plaintiff be permitted to withdraw the suit with liberty to file a fresh suit. But there is hardly any legal or technical defect in the case on the basis of which the claim is failing. The claim is failing on the merits and not on any legal or technical defect.

The appeal fails and is dismissed; but in the peculiar circumstances of the case there will be no order as to costs.