KHAZANI Vs. RAM KISHAN

JUDGEMENT

(1.) Smt. Khazani is daughter of Roop Chand son of Ramji Lal. Roop Chand was owner of 1/2 share of the land as detailed in the heading of the plaint. Roop Chand transferred the land in suit in favour of Ram Kishan son of Prit Singh by means of judgment and decree dated 5-2-1975. Smt. Khazani filed this suit for possession of 1/2 share of the said land as detailed in the heading of the plaint on the basis of Will dated 6-12-1974 executed by her father in her favour or in the alternative, as daughter of said Roop Chand namely civil suit No. 79 of 1982 titled Smt. Khazani v. Ram Kishan. She challenged the judgment and decree dated 5-2-1975 suffered by Roop Chand in favour of Ram Kishan defendant being of no effect on her rights as the subject matter of the decree was of the value of more than Rs. 100/-, which could not be orally transferred even by a decree after 1955 as it violated the statutory provisions and such transfer could be effected by a registered instrument alone. Earlier, Roop Chand had filed suit for declaration to the effect that judgment and decree dated 5-2-1975 titled "Ram Kishan v. Roop Chand" was illegal and not binding on his (Roop Chand's) rights. During the pendency of that suit, Roop Chand died on 15-8-1981 leaving behind the plaintiff as his legal representative and that suit was withdrawn by her (Smt. Khazani), who was the legal representative of Roop Chand deceased the then plaintiff with permission of the Court to file fresh suit. The question of "LR" was kept open. It is alleged in the plaint that plaintiff is the LR of Roop Chand deceased and entitled to inherit the land in suit according to the provisions of Hindu Succession Act after the death of Roop Chand and also Roop Chand had executed valid will dated 6-12-1974 in her favour being his real daughter qua his estate. Ram Kishan obtained judgment and decree dated 5-2-1975 by playing fraud upon the Court as well as upon Roop Chand. Ram Kishan told Roop Chand that he will manage his estate and asked him to get general power of attorney executed in favour of Ram Kishan. Judgment and decree dated 5-2-1975 are illegal,null, void, ab initio and not binding on her rights being the daughter of Roop Chand. On the basis of judgment and decree dated 5-2-1975, Ram Kishan got sanctioned mutation No. 2555 decided on 30-11-1976. Roop Chand never appeared before the Mutation Officer. This mutation was got sanctioned by playing fraud upon Roop Chand. Mutation No. 2555 is not binding on her and Ram Kishan has no right, title or interest in the suit land.

(2.) Defendant Ram Kishan contested the suit of the plaintiff urging that the judgment and decree dated 5-2-1975 was validly suffered by Roop Chand in favour of Ram Kishan. Roop Chand brought about family settlement. It was at that family settlement that this land was devised on Ram Kishan. Smt. Khazani has no right to file this suit either under Hindu Law or under Customary law. Under the provisions of Punjab Custom (Power to contest) Act, 1920, a female is absolutely barred from contesting the alienation effected by a male. Plaintiff was neither a coparcener nor a reversioner, as such, the suit is not maintainable. Plaintiff has no locus standi to file this suit. She had filed suit previously on the same cause of action in which she had failed. Ram Kishan is not stranger to Roop Chand. He is the grandson of his real brother Kanhaiya. Roop Chand and Kanhaiya were the sons of Ramji Lal. Ram Kishan is son of Prit Singh son of Kanhaiya. Ram Kishan is owner in possession of the land in suit since its transfer in his favour by Roop Chand at family settlement, which was recognized in that judgment and decree. Plaintiff's suit is barred by time as decree dated 5-2-1975 has been challenged after a long time. Roop Chand had never executed any Will in favour of Smt. Khazani. If there is any Will, the same is false and the result of mis-representation. If there was any Will, the same became infructuous due to the family settlement. Plaintiff's suit is barred by the rule of res judicata. Roop Chand filed suit against Ram Kishan challenging that decree which was got dismissed as withdrawn on 3-11-1981 by Smt. Khazani without being appointed as his LR/heir. Suit was filed at the instance of Smt. Khazani by her father.

(3.) On the pleading of the parties, the following issues were framed by the trial Court :-