Parkash vs Smt. Bhagwani and Another

H.S. Bedi, J.—This is defendants'' appeal filed against the order of the learned appellate Court, partly allowing the appeal filed by the Plaintiff-respondents and, thereby partly decreeing the suit. The facts of the case are as under:-

One Shankar Lal who was the husband of respondent No. 1 and also the father of Plaintiff-respondent No. 2 as also the appellant died in the year 1947 leaving his legal heirs-the aforesaid persons. The present appellant Parkash filed a civil suit against Sukh Lal regarding the property in dispute in the present proceedings and this suit was decreed on 14.3.1985 with a direction that the share of Sukh Lal aforesaid fell to the share of Parkash - appellant. Thereafter, Plaintiff-respondents No. 1 and 2 Smt. Bhagwani and Jag Ram filed the present suit on Sept 24, 1985 praying for a declaration and permanent injunction that Smt. Bhagwani was owner of the property in dispute. The lower appellate Court, however, gave a finding that in view of the law on the subject, Smt. Bhagwani and Jag Ram were owners to the extent of l/4th share in the property but the decree dated 14th March, 1985 in favour of the appellant Parkash was also held to be valid. Aggrieved by the aforesaid judgment and decree, the present appeal has been filed.

Mr. R.K. Jain, learned counsel for the appellants has urged that his is first and foremost argument was that as per the plaint and as per the statement of Jag Ram, the declaration that was sought was that Plaintiff No. 1 Smt. Bhagwani was in fact, the sole owner of the property and that he claimed no share as his own and in this view of the situation the finding of the Courts below that Jag Ram too was entitled to l/4th share of the property could not be sustained. He has urged that even Bhagwani-Plaintiff-appellant No. 1 was not entitled to any share in view of the fact that her husband Shanker had died in the year 1947 and that then Hindu Succession Act then was not in existence.

After hearing the learned counsel for parties and after going through the records, I find that the assertion of Mr. Jain is correct, through in part. In para 9 of the plaint filed by Plaintiff-respondent, it has been clearly mentioned that the decree with regard to the owner in possession of the property that was sought from the Court was with respect to Bhagwani alone and that Jag Ram Plaintiffs-respondent No. 2 was not claiming any share on his behalf.

As against this, the learned counsel for the respondents has urged that even if it is assumed that Jag Ram Plaintiff, respondent No. 2 had made a statement as aforesaid yet, he could not be deprived of his share of the property and forfeit his legal right to it.

I have considered this argument and find that there is no merit in the stand of the respondents'' counsel. It is to be born in mind that a party cannot go out of his pleading and in this view of the matter, there is no question of a person getting through a Court of law that he does not otherwise claim in his pleadings. Moreover, even assuming for a fact that Jag Ram was entitled to a share in the property by operation of law, I am of the view that he was competent to forfeit his share and he appears to have specifically done so.

The second argument of Mr. Suman Jain, learned counsel also lacks merit. Admittedly, the Hindu Women''s Rights to Property Act, 1937 was in force on the date Shanker died. In this view of the matter, the declaration in favour of his widow was duly justified.

For the reasons recorded above, the present appeal is partly allowed and decree qua Jag Ram Plaintiff-respondent No. 2 is set aside and that of Bhagwani is maintained. No costs.