SEWTI DEVI Vs. KANTI PARSHAD

JUDGEMENT

(1.) TULSI Ram was the original owner of the land in suit. He had three sons Sant Lal, Harbans Lal, and Baru. Baru died in 1927 leaving behind his widow Smt. Raji. Harbans Lal died a year or two later leaving behind his widow Smt. Daropadi. Smt. Raji died in 1945 without any issue and the estate of Baru was divided between Sant Lal and Smt. Daropadi half and half. Sant Lal died on August 17, 1956, leaving behind his widow Smt. Ram Piari, four sons, namely Kanti Parshad alias Kanta Parshad, Mani Ram alias Mani Karan, Devi Dayal and Amrit Lal and three daughters, namely Smt. Pushpawati, Smt. Sona Devi and Smt. Savitri Dev. Smt. Daropadi died in 1958 leaving behind one daughter, Smt. Sewti Devi Appellant. The land in suit is situate in three villages and the mutations with regard to the estate of Baru after the death of Smt. Raji were sanctioned in favour of Sant Lal and Smt. Daropadi half and half in June, 1945, in the absence of the parties on the attestation of the Lambardars of the villages. It is the admitted case of the parties that the land in suit was under the tenants and chakotedars and Sant Lal used to realise the batai from them and hand over half of it to Smt. Daropadi during her life time. In 1961, Smt. Sewti filed a suit against Kanti Parshad and others, the heirs of Sant Lal, in the court of Revenue Officer, Ambala, claiming rendition of accounts with regard to the amounts recovered by them from the tenants and payment to her of her one half share. It was stated in para 1 of the plaint that Santa lal father of defendants 1 to 4 and 6 to 8 and husband of defendant 5 of that suit and Smt. Daropadi widow of Harbans Lal, mother of the appellant, were owners in possession of the land in suit in equal shares. Sant Lal had died on August 17, 1956, and the heirs did not pay one-half share of the rent realised with regard to the land to Smt. Daropadi Devi and after her death to the appellant, that is, Smt. Sewati, Kanti Parshad and other heirs of Sant Lal filed a written statement in which para 1 of the plaint was admitted as correct that is, Sant Lal and Smt. Daropadi Devi were owners in possession of the land in suit in equal shares. It was further pleaded that one-half share of the rent realised from the tenants had been paid to Smt. Daropadi Devi during her life time and Smt. Sewti had no right to file the suit for rendition of accounts. It was further stated that there was no question of rendition of accounts because after the death of Smt. Daropadi Devi the husband of Smt. Sewti had been receiving the produce of her share along with the defendants, that is, Kanti Parshad and others. Kanti Parshad appeared as a witness in that suit and reiterated that he and Smt. Daropadi used to receive the batai from the tenants and the amount of chakota half and half and that the land was being managed by him and Smt. Daropadi Devi. It is clear from these three documents that is, the plaint, the written statement and the statement of Kanti Parshad in the Revenue Court, that the claim of Smt. Sewti to one-half share of the land in suit had not been denied and it was pleaded that Smt. Daropadi had been paid one-half share of the produce every year. Smt. Sewti filed proceedings for partition before the Revenue Officer in 1961 which prompted Kanti Parshad, Mani Ram, Devi Dayal and Amrit Lal to file the suit, out of which the present appeal has arisen, for a declaration to the effect that the plaintiffs were owners of 2/3rd share of the land in suit and that they had been wrongly recorded as the owners of one-half in the jamabandis. The suit was filed against Smt. Sewti defendant 1, and widow and daughters and Sant lal, defendants 2 to 5. It was claimed that on the death of Smt. Raji on February 5, 1945, her 1/3rd share was succeeded to by Sant Lal alone and not by him and Smt. Daropadi in equal Shares because Harbans lal and pre-deceased Smt. Raji Sant Lal thus became the owner of 2/3rd share, that is 1/3rd his own and 1/3rd of Baru. By mistake the revenue authorities, instead of attesting the mutation of inheritance in favour of Sant Lal exclusively, effected the mutation in favour of Smt. Daropadi and Sant Lal in equal shares in the absence of the parties, which mistake has continued to persist.

(2.) THE suit was resisted by Smt. Sewti who asserted that her mother had succeeded to the estate of Smt. Raji half and half along with Sant Lal and her claim to that one-half share had been accepted by Sant lal. Estoppel and limitation were also pleaded. On the pleadings of the parties, the following issues were framed:-1. Whether Sant Lal alone was entitled to succeed to the estate of Baru in the hands of Smt. Raji? 2. Whether there was any special custom governing the parties according to which Smt. Daropadi could equally succeed with Sant Lal to the estate of Baru in the hands of Smt. Raji?

(3.) WHETHER the plaintiffs are estopped from filing this suit?