VEENA BAHL Vs. VISHNU KUMAR

JUDGEMENT

(1.) This is an appeal against the order dated 23.4.2005, passed by Sri Akhilesh Chandra Sharma, learned Additional District and Sessions Judge Court No. 10, Moradabad in Original Suit No. 319 of 1982, Smt. Veena Bahl and Ors. v. Sri Vishnu Kumar and Ors..

(2.) The facts relevant for disposal of this appeal are that the plaintiffs Smt. Veena Banal, Smt. Rarnwati Devi and Smt. Rajeshwari Devi Rastogi (now all deceased) filed O.S. No. 319 of 1982 in the court of Civil Judge, Moradabad, against the defendants Sri Vishnu Kumar and Ors. with these allegations that the properties specified in Schedule 'A' and 'B' were owned by Raja Krishan Kumar and his son Raja Raj Kumar who jointly executed a registered deed of transfer on 6.8.1896 in favour of Anirudh Kumar and Lal Kumar. It was further provided in that deed that the property shall not be transferred to any non-member of the family so long as the members of the family were ready to take it. Sri Lal Kumar died unmarried and thereafter Sri Anirudh Kumar also died and so the property was inherited by his son Jagdish Kumar. Jagdish Kumar also died on 22.3.1932 and he was succeeded by his widow Smt. Surendra Bala Devi. She executed her last Will in favour of her daughter Smt. Rajeshwari Devi Tandon (mother of plaintiff No. 1 on 18.5.1964) narrating therein that her Manager Pt. Shymal Lal Chaubey had obtained a Will of this property on 23.12.1963 in his own favour which was written in a language not known to her and she was wrongfully made to sign it without explaining its contents to her. Under the said Will dated 18.5.1964, the properties described in Schedule 'A' of the plaint were bequeathed to Smt. Rajeshwari Devi Tandon who died on 17.12.1980, leaving behind plaintiff No. 1 as her sole heir and thus plaintiff No. 1 became owner in possession of the properties left by her. Smt. Surendra Bala had filed Suit No. 17 of 1944 against her mother-in-law, Smt. Ginda Kunwar widow of Sri Anirudh Kumar in the court of Civil Judge, Moradabad and aggrieved with the order of the Civil Judge, Smt. Gainda Kunwar filed Civil Revision No. 338 of 1945 before High Court at Allahabad and in this revision a compromise was filed by Smt. Gainda Kunwar and Smt. Surendra Bala on 16.12.1947 and according to this compromise Smt. Gainda Kunwar was given a life interest in the property specified in Schedule 'B' of the plaint in lieu of her maintenance allowance and she was put in actual possession of that property and after enforcement of the Hindu Succession Act, 1956, Smt. Gainda Kunwar became full owner of this property. Smt. Veena Bahl, plaintiff No. 1 died on 22.10.1986 during the pendency of the present suit leaving behind her husband and two sons as her legal heirs and they were impleaded as plaintiff Nos. 1/1, 1/2 and 1/3. Smt. Gainda Kunwar executed a registered Will of property specified in Schedule B in favour of her grand-daughter Smt. Rajeshwari Devi on 23.12.1967. Smt. Gainda Kunwar died on 15.4.1974 and then Smt. Rajeshwari Devi became owner of this property by virtue of above Will. Smt. Rajeshwari Devi also died on 17.12.1980 and then her daughter Smt. Veena Bahl (plaintiff No. 1) became sole owner of the aforesaid property. Smt. Surendra Bala was not in possession of the property specified in Schedule 'B' in 1956 when the Hindu Succession Act was enforced and she had no right to execute any Will of the above property on 23.12.1963. Smt. Rajeshwari Devi never entered into any agreement with Sri Vishnu Kumar (defendant No. 1) on 25.5.1968 or on any other date. No such agreement was signed by her and the agreement relied upon by defendant No. 1. Shri Vishnu Kumar is a void document. The Will relied upon by defendant No. 1 is invalid on this ground also that it has been made by Surendra Bala in favour of persons who are not member of her family. The plaintiff No. 1 after the death of her mother has become sole owner in possession of the disputed property but defendant No. 1 was threatening to realize rent from tenants in the property and during the pendency of the suit defendant No. 1 transferred some of the properties to defendants No. 3 to 8 relying upon the aforesaid forged Will in favour of himself and defendants No. 9 to 13. Plaintiff No. 2 died during the pendency of the suit on 17.9.2003 leaving plaintiffs No. 2/1 to 2/5 as her legal heir. Plaintiff No. 3 also died on 11.4.1997, leaving plaintiff No. 3/1 to 3/7 as her heirs. Defendant No. 2 also died leaving behind three legal heirs who were already impleaded as defendants No. 9, 10 and 11. Defendant No. 3 also died leaving defendants No. 3/1 to 3/4 as per heirs. Defendant No. 10 also died leaving behind defendants No. 10/1 to 10/4 as legal heirs. Pt. Shyma Lal Chaubey (defendant No. 2) as Manager was permitted by the plaintiffs and their predecessors to reside in house No. 2 of the schedule 'A' property and encouraged by him his sons and other persons named as legatees in the alleged Will dated 23.12.1963 were interfering with the plaintiffs' right over the property. Plaintiff No. 1 executed a sale deed in favour of plaintiffs No. 2 and 3 on 7.7.1983 in respect of the property specified in Schedule 'B' of the plaint. These plaintiffs No. 2 and 3 Smt. Ramwati Devi and Smt. Rajeshwari Devi executed two Wills in favour of plaintiff No. 2/2 on 27.1.2003 and 29.2.1996 respectively and as such plaintiff No. 2/2 became sole owner of the property specified in schedule 'B' of the plaint. The plaintiffs would suffer irreparable loss and injury if any of the properties specified in Schedule 'A' and 'B' are illegally transferred by the defendants. They, therefore, filed the suit for declaration that plaintiffs No. 1/2 and 1/3 are owner of the property specified in Schedule 'A' of the plaint and that plaintiff No. 2/2 is owner of the property specified in Schedule 'B' of the plaint and for permanent injunction restraining the defendants from alienating these properties. The plaintiffs valued the suit for relief 'A' and 'B' on the market value of property No. 1 and 2 specified in Schedule 'A' of the plaint which was Rs. 26,98.530 and Rs. 43,11,195 respectively and on value of property No. 3 of Schedule 'A' calculated at thirty times of the amount of annual land revenue of Rs. 12.95 paise, i.e., Rs. 388.50 paise plus Rs. 21,000 being the price of 21 trees standing thereon ; total Rs. 70,31,113.50 paise. The properties specified in schedule 'B' were valued at Rs. 1,00,000 in respect of reliefs 'C' and 'D'. The plaintiffs paid court fees of Rs. 200 each for declaratory reliefs 'A' and 'C' and Rs. 500 each for the reliefs of injunction 'B' and 'D'.

(3.) The defendants contested the suit. They took a plea that the plaintiffs had sought the relief of declaration with the consequential relief of injunction in the relief clause of the plaint and so the plaintiffs should have paid ad valoram court fees on the entire valuation of the suit under Section 7(iv)(a) of the Court Fees Act (the Act) and the court fees of Rs. 200 and Rs. 500 paid separately for the reliefs of declaration and injunction was insufficient.