Sushila vs Lichhmi

Arun Palli, J.

C.M. No. 7744-C of 2013:

For the reasons set out in the application, delay of 33 days in filing the appeal is condoned. The application stands disposed of.

Main Appeal:

Suit filed by the plaintiff was dismissed by the trial court vide judgment and decree dated 12.05.2011. Appeal preferred against the said decree also failed and was accordingly dismissed vide judgment and decree dated 23.01.2013. That is how the plaintiff is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.

In short, plaintiff i.e. Sushila wife of late Shri Raj Krishan sought a declaration that she and her daughter (defendant no. 7) had earlier filed a suit against Raj Krishan son of Gorkha u/s 18 of the Hindu Adoption and Maintenance Act (for brevity-the Act), which was allowed by the then Civil Judge (Junior Division), Narwana. Pursuant to the said order, plaintiff and her daughter were regularly getting maintenance from Raj Krishan. It was averred that post-filing of a suit u/s 18 of the Act, Raj Krishan clandestinely transferred the land without any consideration to Dinesh Kumar son of Raghbir, who happened to be his nephew. A suit challenging the said alienation by Raj Krishan was stated to be pending in the Civil Court at Narwana. Gorkha son of Ptram-father-in-law of the plaintiff expired and the plaintiff learnt about his demise in the first week of May 2006. It was maintained that Gorkha was recorded as owner in possession of an agricultural land to the extent of 1/5th share in a land measuring 111 kanals 4 marlas situated at Village Chhatar. Thus, Gorkha owned 20 kanals 13 marlas out of the total land. Plaintiff, along with proforma defendants, were alleged to be entitled to succeed to the extent of 1/6th share in the estate of Gorkha after his death. Thus, the suit.

Defendants no. 1 to 5 pleaded in defence that they were neither aware of any petition u/s 18 of the Act nor any Civil Suit challenging the sale deed in favour of Dinesh Kumar son of Raghbir. However, sale deed bearing no. 783 dated 12.02.1999 and subsequent mutation on the basis thereof was stated to be rightly executed by the vendor in favour of the vendee for a consideration. It was averred that the plaintiff never challenged the sale deed during the lifetime of Raj Krishan. However, it was admitted that Gorkha, who died on 28.06.2004, was the father-in-law of the plaintiff. Further, it was maintained that Gorkha did not own any agricultural land on the day of his death as he had bequeathed his entire property in favour of his son Rajinder by way of a registered Will bearing no. 44 dated 11.08.1998. Mutation bearing no. 5715 on the basis of the said Will was purported to have been sanctioned in the name of the beneficiary. Plaintiff was stated to be aware of the said Will and it was pleaded that the plaintiff or the proforma defendants were not entitled to any share of the property of Gorkha as he, during his lifetime, had partitioned the entire agricultural land in favour of his four sons and resultantly, they were in cultivating possession of their exclusive shares. Property in the hands of Gorkha was denied to be ancestral.

On an analysis of the matter in issue and the evidence on record, learned trial court arrived at conclusion that the factum, that the property in the hands of Gorkha was ancestral and coparcenary, was duly proved on the basis of evidence on record. Concededly, Gorkha had four sons namely Balbir (defendant no. 3), Raghbir (defendant no. 4), Rajinder (defendant no. 5) and Raj Krishan-deceased husband of the plaintiff. It was also found that Gorkha, during his lifetime, had partitioned the property among his four sons and himself in the year 1985. The said fact was found to have been duly corroborated from the excerpt Ex. P-2, which was reflected in the jamabandi for the year 1986-87, which showed that all the four sons of Gorkha were in possession of their respective shares. Further, the fact that the property was partitioned amongst the coparceners also stood substantiated from the sale deed no. 783 dated 12.02.1999 executed by the husband of the plaintiff. This fact, as observed, was again admitted by the plaintiff in her own averments. Thus, it was clear that 1/5th share left with Gorkha was his share in the coparcenary property. Thus, he was well within his rights to execute the Will regarding his share, as per Section 30 of the Hindu Succession Act. Execution of the Will in question was duly proved by the testimony of Deed Writer namely Karam Chand (DW-3) and marginal witness Ram Mehar (DW-4). The only argument of the plaintiff that the deceased Gorkha was not in sound disposing mind at the time of execution of Will was also rejected as admittedly, relationship of the plaintiff with her late husband was strained. She was not living with him. She never visited her in-laws. Rather, in her cross-examination, she admitted in no uncertain terms that she did not even attend the cremation ceremony of her husband. She did not know as to when he died. Likewise, she did not even attend the cremation of her father-in-law. That being so, she could not maintain that Gorkha was not in sound disposing mind at the time of execution of Will. Resultantly, suit filed by the plaintiff was dismissed vide judgment and decree dated 12.05.2011.

Being dissatisfied with the said decree, plaintiff preferred an appeal. Learned first appellate court reviewed the matter in issue, evidence on record and on analysis thereof, found itself in concurrence with the view drawn by the learned trial court and the findings recorded in support thereof. It was affirmed that the property in the hands of Gorkha was ancestral and coparcenary in nature. However, during the lifetime of Gorkha, the said property was partitioned between the father and his four sons. Pursuant to the said partition, Gorkha was an absolute owner of his share and competent to alienate the same. Exercising his said right, he bequeathed his property in favour of his son Rajinder vide Will dated 11.08.1998 (Ex. D-6). That being so, learned first appellate court, vide judgment and decree dated 23.01.2013, dismissed the appeal.

I have heard learned counsel for the appellant at length and examined the judgments rendered by both the courts below.

Learned counsel for the appellant urged that the defendants had failed to produce the original Will on record. As is discernible from the records, it was clarified that the original Will was attached with the mutation file, which was sanctioned on the basis of said Will. Further, Ram Mehar-an attesting witness proved the Will in question. And a copy thereof was proved by Raj Kumar-Registry Clerk (DW-5). Thus, the submission being advanced is hardly of any consequence. Learned counsel for the appellant could not point out or show as to how the findings recorded by both the courts below were perverse or the conclusions arrived at were contrary to the position on record.

In the wake of the position, as set out above, and the conclusions that have concurrently been recorded by both the courts below, no ground, least plausible in law, exists to interfere with the decree being assailed in the present appeal. No question of law, much less any substantial question of law, arises for consideration. The appeal being devoid of merit is accordingly dismissed.