RADHEY SHYAM Vs. SHYAM DEVI

JUDGEMENT

(1.) HEARD Sri Sharad Malviya learned counsel for the appellant and Sri A.K. Misra learned counsel for the respondent. This is the plaintiff's second appeal. The pedigree, as extracted in the judgment of the trial court, is to be noted for the purpose of deciding this appeal and is reproduced hereinunder: Chirkit

(2.) THE dispute has arisen with the filing of a suit by none else than Radhey Shyam who is the son of the defendant-respondent No.2, Laxmi Narain. The fact that the plaintiff is the son of Laxmi Narain from his first wife Kamla is undisputed. The house which is subject matter of dispute was transferred by Laxmi Narain through a registered sale deed executed on 3rd January, 1975 in favour of Shyam Devi. The plaintiff Radhey Shyam filed the suit for cancellation of the sale deed on the ground, that according to the pedigree aforesaid, the house in question was ancestral property having been inherited by Deoki from his brother Parahu who had died issueless. The plaintiff's case was that since it was an ancestral property, therefore, his father could not have sold or transferred the entire property thereby excluding the plaintiff from inheritance of his share in the ancestral property. The same property had been subject matter of a compromise/family settlement in Original Suit No. 42 of 1949, the decree whereof was exhibited as A-7 during the trial. The contents of the said decree have, however, been narrated differently by the trial court as well as by the appellate court. The trial court decreed the suit and cancelled the sale deed. The defendants went up in appeal and the judgment of the trial court was reversed and the suit was dismissed. The trial court while taking notice of the said family settlement noted that the compromise of 1949 in the said suit indicates that the disputed house was to be the property of Deoki during his life time and upon his death the property was to pass on to his widow Marachi. It is here that a recital in the trial court judgment deserves to be noted where it has been recorded that according to paragraph 3 of the settlement Marachi appears to be a limited owner of the said property after the death of her husband. Accordingly, the trial court came to the conclusion that it continued to be ancestral property and since the plaintiff was the grand-son of Deoki, he had an indepandent right and interest of his own share in the said property. The sale deed was, therefore, annulled holding that Laxmi Narain the father of the plaintiff had no right to sell off the entire property. At this juncture it is to be noted that this finding has been reversed by the lower appellate court and the narration of facts as contained in the judgment of the court below records that the compromise of 1949, by virtue whereof Marachi was conferred with rights over the property, indicates that she was to be the sole owner of the property after the death of Deoki. It is undisputed that Deoki had predeceased Marachi and, therefore, she became owner of the house in question. This assumption of fact by the lower appellate court that Marachi was full and sole owner of the house during her life time has not been assailed in this appeal nor any ground has been taken questioning the correctness of the said recital of assumption.

(3.) SRI Sharad Malviya raises a second question that even otherwise the succession which opened after the death of Marachi would also include the plaintiff as one of the heirs and he has invited the attention of Court to Section 15 of the Hindu Succession Act, 1956. He submits that even otherwise the plaintiff had a share on the succession opening after the death of Marachi and hence the lower appellate court was not justified in reversing the entire judgment of the trial court. Sri Anjani Mishra learned counsel for the defendant-respondent contends that the plaintiff-appellant has failed to challenge the recital contained in the judgment of the lower appellate court about Marachi being the sole owner and this absoluteness of her status remaining unrebutted, the plea of inhereting the property being ancestral did not arise. He further submits that the character of the property by virtue of the compromise decree in 1949 was clearly altered and the line of succession stood changed after the property devolved on Marachi. She being a Hindu widow, the property which was acquired by her under the compromise would devolve after her death to her heirs only as the property ceased to be ancestral as claimed by the plaintiff.