ANJANA SAMJI CHELA Vs. ANJANA HIRJI AHIJI

JUDGEMENT

(1.) This appeal arises from the impugned judgment and decree dated 29.9.1979 rendered by the learned Civil Judge (SD) at Palanpur in Special Civil Suit No. 10/66 dismissing the plaintiffs' suit with costs. The appellants are the plaintiffs in the suit and the respondents are the defendants therein.

(2.) The plaintiffs filed the aforesaid suit for possession of the suit premises consisting of two house site plot and agricultural lands as described in the plaint and for mesne profits at a yearly rate of Rs. 175/per house site plot and Rs. 525/ for agricultural lands for a period of three years before the date of the filing of the suit and for a period commencing from the date of the suit till the possession of the suit property is delivered by the defendants to the plaintiff. According to the plaintiff, they are full brother and sister. Their father died about a year before the date of the suit. They have claimed rights in the suit properties as agnates in the family headed by Samabhai Surjibhai as per the pedigree set out in para-4 of the plaint. One Daljibhai Sardar is their cousin in the line of Ramsing Samabhai. The said Daljibhai Sardar died on 18.12.1959 intestate leaving behind his widow Bai Mena, who happened to be the daughter of Rajsangh Ganeshbhai. She, however, remarried with one Anjan Danraji Devji of Jagan village and has been residing with him as his wife. On account of such remarriage after the death of her husband Dalji Sardar, she would not get any interest in the suit properties left behind by Dalji Sardar. The plaintiffs have,therefore, claimed the suit properties as devolving on them. It has also been asserted that defendant no.2's husband Anjana Hirji Ahji- father of the defendants no. 3 to 6, in collusion with Anjana Jita Chela, put up a false case that the late Dalji Sardar has executed a Will under which, all the properties were bequeathed to Anjana Hirji Ahji and Jita Chela. It has also been asserted that these Anjana Hirji Ahji and Jita Chela have no interest in the suit properties under any of the provisions of Hindu Succession Act, 1956 ( hereinafter referred to as 'the Act'). The plaintiffs have asserted that during the life time of Dalji, all the suit properties were in his actual possession as the owner thereof. He, however, died of Tuberculosis on 18.12.1959. It has been alleged that by taking advantage of the alleged Will, Anjana Hirji Ahji and Jita Chela unlawfully took the possession of the suit properties. They in the process tried to get their names mutated in the record of rights. The plaintiffs resisted such an action on the part of the said defendants as per the particulars set out in the plaint. Still however, mutations were effected by the Revenue Authorities against the objections of the plaintiffs. Under such circumstances, the possession of the aforesaid defendants is that of trespassers.

(3.) The defendants resisted the plaintiffs' suit for possession and other reliefs denying the plaintiffs' case with regard to their relationship with deceased Dalji Sardar, as also denying the pedigree set out by the plaintiffs. They however, admitted that the Dalji Sardar died on 18.12.1959 but after executing the last Will bequeathing the properties to the aforesaid defendants. They have asserted that the defendant no. 7 being the widow of late Dalji Sardar did not remarry till the life time of Dalji Sardar. Thus, Dalji Sardar left behind him Mena Bai being his widow as his heir. Over and above the said Mena Bai, deceased Dalji left behind him Kunvarben, his mother and two sisters namely Menaben and Avalben. It might be noted that these two ladies have been described as Sardar's sisters i.e. Dalji's father's sisters. Jita Chela being the father of defendants no. 3 to6 and defendant no. 2's husband, are the brothers of Kunvarbai. Thus, Menaben and Kunvarben are the heirs of the first schedule of the Act, while another ladies namely Bai Mena and Avalben are the heirs of the second schedule of the Act,in so far as deceased Dalji Sardar is concerned.