NARESH KUMAR MAJITHIA Vs. KRISHAN SARUP MAJITHIA

JUDGEMENT

(1.) This order will also dispose of R.S.A. No. 2228 of 1979 as the question involved is common in both the appeals.

(2.) Pohlo Mal was the common ancestor of the plaintiff and defendant, Nos. 1 and 2. On his death the property, in dispute, was inherited by his two sons Dheru Ram and Pheru Ram in equal shares. Pheru Ram died in the year 1952 and on his death his share in the property in dispute was inherited by his son Krishan Sarup, plaintiff and by his grandson Naresh Kumar, defendant No. 1, in equal shares. Krishan Sarup plaintiff did not want to keep the property joint and as such he filed suit for partition of the property, in dispute, claiming that he was the owner of one fourth share and Ram Rakhi, defendant No. 2, was the owner of one half share in the property in dispute. Parkash Wati, defendant No. 5, applied under Order 1 Rule 10, Civil Procedure Code, to be impleaded as a party to the suit which was allowed. After the amendment of the plaint it was pleaded that Shrimati Parkash Wati had no share in the property in dispute. Defendant No. 2, in her written statement also admitted all the allegations made in the plaint and supported the plaintiff's allegations that Parkash Wati had no share in the land, in dispute. Only Naresh Kumar, defendant No.1, controverted the allegations of the plaintiff about the shares of the parties in the property, in dispute, and alleged that Shrimati Ram Rakhi was not entitled to any share out of the property, in dispute. It was alleged that Ram Rakhi in a previous suit gave the statement that she was entitled to receive only the rent of some of the shops and would have no right in the property, in dispute. As such he claimed that he was entitled to one half share in the property, in dispute. Parkash Wati, defendant, in her written statement, alleged that she was the adopted daughter of Dheru Ram. She also alleged that Dheru Ram executed a will in her favour by which 108th share of the property was to go to her. The trial Court found that the plaintiff had one-fourth share in the suit property whereas the share of defendant No. 1 and defendant No. 2 was one-fourth and one-half respectively. According to the trial Court, Parkash Wati failed to prove herself, to be the adopted daughter of Dheru Ram and also failed to prove the will alleged to have been executed in her favour. Consequently a preliminary decree declaring the shares of the plaintiff was passed. Two appeals were filed against the said judgment of the trial Court; one by Parkash Wati and the other by Naresh Kumar, defendants. The learned Additional District Judge, affirmed the findings of the trial Court as regards the case set up by Parkash Wati and thus dismissed her appeal. The appeal filed by Naresh Kumar was also dismissed, but in paragraph 16 of the judgment, it was found that Naresh Kumar and Krishan Sarup were not entitled to claim any share in the suit property during the life time of Ram Rakhi widow of Dheru Ram in view of the consent decree, Exhibit D.2. The lower appellate Court found that a perusal of the statement, a copy of which is Exhibit D-2, only shows that Ram Rakhi agreed that she would not sell her share of the property and that after her death the same would be inherited by the plaintiff and defendant No. 2. It has been further found by the lower appellate Court that this statement cannot be interpreted to mean that Ram Rakhi divested herself of the share in the property and gave the same to the plaintiff or defendant No. 1 which Ram Rakhi agreed that she would not sell her share of the property and it would be inherited by the plaintiff and defendant No. 1 after her death. This statement therefore, does not give any right to the plaintiff and defendant No. 1 in Ram Rakhi's share in the property, in dispute, during her life time. It was also found that since the said consent decree was not registered it did not affect the rights of the parties. Dissatisfied with the same, R.S.A. No. 361 of 1978 has been filed on behalf of Naresh Kumar whereas R.S.A. No. 2228 of 1979, has been filed by Parkash Wati. During the pendency of the appeals, Ram Rakhi died on 2.5.1980. An application for bringing on record her legal representatives was filed. One Dinesh Rani, wife of Krishan Sarup, defendant claimed herself to be the legal representative of the deceased Ram Rakhi on the strength of the registered will dated 7.4.1978, in her favour. She was impleaded as a legal representative subject to all just exception vide order dated 21.8.1990.

(3.) As regards R.S.A. No. 2228 of 1978, filed by Parkash Wati, no meaningful argument could be raised to challenge the concurrent findings of the two Courts below; hence the same is liable to be dismissed. As regards the appeal filed by Naresh, i.e. R.S.A. No. 361 of 1979, the learned counsel for the appellant submitted that the consent decree, Exhibit D-2, did not require any registration. In support of the contention, the learned counsel referred to the Division Bench judgment of this Court in Tej Singh v. Jagrup Singh, 1989 1 RRR 239 and Gurdev Kaur v. Mehar Singh, 1989 2 RRR 499. He submitted that since Ram Rakhi had died meanwhile in view of the findings of the lower appellate Court that the plaintiff was not entitled to any share during her life time, the suit was liable to be decreed to the extent of one-half each in favour of the defendant Naresh Kumar and Krishan Sarup plaintiff. On the other hand, the learned counsel for the legal representative Shrimati Dinesh Rani, submitted that since there was a will in her favour executed by Shrimati Ram Rakhi, she was entitled to the share of Ram Rakhi. Since Ram Rakhi had no share in the suit property and she was only entitled to remain in occupation of the suit property till her death as found by the lower appellate Court, the will, was of no consequence as regards the rights of the plaintiff and defendant Naresh Kumar. Consequently, R.S.A. No. 361 of 1979, is to be allowed.