KAMLA Vs. PRITA

JUDGEMENT

(1.) This appeal has been filed by Prita and Chandan alias Chander defendants against the judgments and decree of the courts below.

(2.) Brief facts of the suit instituted by two sisters, namely, Kamla alias Lachhmi and Ratni alias Sundri (Dhapi) plaintiffs who are the daughters of Sudha, are that Sudha was the owner of the land, detailed in para I of the plaint, and that on his death the land was inherited by his widow Parmeshwari who performed karewa marriage with Ratia defendant No. 2. After the performance of Karewa she had no connection with the family of Sudha. It was alleged in the suit that the land in dispute was allotted after the consolidation in lieu of the previous, holdings. The plaintiffs claimed the ownership of the disputed land on the ground that they being the daughters are entitled to inherit the suit land left by their father and that their mother was not entitled to the same as she had performed karewa marriage with Ratia and that the subsequent mutations in favour of respondent Nos. 1 to 3 were void, and illegal. Defendant No. 2 did not appear and was proceeded ex-parte. Defendant No. 1 admitted that Sudha was the original owner of the land and that Parmeshwari was the widow of Sudha and that the land had been mutated in his name. It was averred that Parmeshwari did not contract any karewa. The defendants were described to be in possession of the land since the death of Sudha as owners by way of adverse possession. The factum of the plaintiffs being the daughters of Sudha was denied. The parties were said to be governed by the custom in the matters of alienation and succession in and under special custom prevailing in Panipat tehsil; the daughters had no right to inherit the ancestral as well as self acquired property of their father in the presence of the collaterals. The written statement of defendant No 3 was also to the same effect in material particulars with one addition that Sudha had another daughter Omi who was the necessary party to the suit. On pleadings of the parties the following issues were framed ;

(3.) Shri Midha, learned counsel for the defendant-appellants has vehemently argued that the plaintiffs are not proved to be the daughters of Sudha The argument is not acceptable. Exhibits PA and P.5, the birth entries of the plaintiffs, clearly show that two daughters were born to Sudha. Moreover, the statement of Parmeshwari has rightly been relied upon by the courts below in order to come to the conclusion that the plaintiffs were born to her from the loins of Sudha. Moreover, no question in the cross examination was put to Parmeshwari when she was in the witness-box to the effect that the plaintiffs are not the daughters of Sudha. Admission of defendant No. 3 that Sudha had another daughter Omi also impliedly proved the relationship of the plaintiffs.Confronted with this situation, Sh. Midha has strenuously argued that Parmeshwari on the death of her husband which took place before the coming into force of Hindu Succession Act inherited the ancestral land left by her husband as limited owner and on the coming into force of the Hindu Succession Act her ownership ripened into full ownership. It has further been argued that since Parmeshwari after becoming full fledged owner had consented to the land being mutated in favour of the defendants it is they who have become the owners of the disputed land. The argument though attractive on the face of it does not go home. A perusal of the pleas taken and the issues framed does not indicate that any such case as sought to be argued before this court was either pleaded of argued before the court below. On the other hand, it has been found as a fact that the land in dispute was self acquired property of Sudha and that the plaintiffs and Parmeshwari had equal shares in the suit property being daughters and wife particularly when the marriage of Parmeshwari with Ratia was declared to be void. The attention of the court below was never drawn to any mutation evidencing the inheritance by Parmeshwari as a limited owner of the entire disputed land and in view thereof it could not successfully be pointed out that the defendants got the land in mutation from Parmeshwari as collaterals. Even if such mutations are in existence as was sought to be argued by Shri Midha, the same have got to be declared as null and void in view of right of inheritance of the plaintiffs and Parmeshwari to the estate of the deceased Sudha. Moreover, the defendants took up the plea of adverse possession which they have not been able to substantiate.