LAKSHMI CHAND Vs. BASANTI ALIAS KAILASH

JUDGEMENT

(1.) THE dispute herein is between the brothers, on the one hand, and the sisters, on the other. Chiranji Lal, father of the parties, was a Dohlidar to the extent of one-half share in the land in dispute. Basanti @ Kailash plaintiff and Chanderpati defendant No. 4 are the daughters of Chiranji Lal whereas Lakshmi Chand and Karan Singh are his sons. On the basis of a family partition and settlement the father (Chiranji Lal) suffered a decree on 20.7.1976 in favour of his two sons and the two sisters were deprived of their right of succession to the estate of Chiranji Lal. Basanti filed a suit out of which the present appeal has arisen challenging the aforesaid decree on the ground that dohlidari rights in the land could not be alienated by her father and as such the decree would be void ab initio and would not affect her rights and those of Chanderpati who was arrayed as defendant No. 4 in the suit. Lakshmi Chand and Karan Singh sons of Chiranji Lal were arrayed as defendants No. 1 and 2. Chiranji Lal was also arrayed as a defendant in the suit. The suit was contested by Chiranji Lal and also by his two sons. Chiranji Lal died during the pendency of the suit and his name was thereafter deleted. The relationship between the parties is not disputed. The fact that Chiranji Lal held dohlidari rights in the suit land was admitted. The decree was sought to be justified on the ground that the plaintiff and defendant No. 4 who were females had no right to succeed to the dohlidari rights of Chiranji Lal. It was denied that the decree amounts to alienation. It was also pleaded that the suit was beyond limitation. The trial Court framed the following issues :-

(2.) THE questions that arise for consideration in this appeal are : (i) whether the decree dated 20.7.1976 amounts to alienation of dohlidari rights and whether such rights could be alienated and (ii) whether the plaintiff being a female could inherit the dohlidari rights of the father.

(3.) IT is true that another Division Bench of this Court in Baba Badri Dass v. Dharma and others, 1981 PLJ 447 expressed some doubt to the correctness of the aforesaid decision but since this question was not directly involved in that case, the learned Judges left the matter there and did not decide the same as is clear from the following observations :-