SAHIB SINGH Vs. RAM KUMAR

JUDGEMENT

(1.) THIS is defendants' appeal. Ram Kumar plaintiff-respondent (hereinafter referred to as a plaintiff) filed the present suit for possession of agricultural land measuring 32 Kanals 4 Marias. One Harphool died leaving behind two widows Paton and Bujan, defendant No. 8. Smt. Paton and Smt. Bujan inherited the property of Harphool Singh in equal shares. On 16. 3. 1968, Sujan defendant No. 8 adopted Ram Kumar, plaintiff through a registered adoption deed. On 20 3. 1968, Paton executed a registered Will in favour of the plaintiff which has been exhibited as Ex. P 11. Paton died on 21. 5. 1958. On 25. 11. 1969, mutation regarding the inheritence of Paton was sanctioned to the extent of half of the share in the name of the plaintiff and the other half in favour of Smt. Bujan. Plaintiff was only 12 years old at the time of death of Smt. Paton and Smt. Bujan was acting as his legal as well as natural guardian being the adoptive mother. The Will Ex. P- 1) was in possession of Smt. Bujan defendant No. 8. On 2. 4. 1980 and 31. 7. 1980, Smt. Bujan executed two separate sale deeds in favour of defendants Nos. 1 to 6 of land measuring 32 Kanals 4 Marias. Plaintiff filed the present suit for declaration to the effect that the sale deeds executed by Smt. Bujan on 2. 4. 1980 and 31. 7. 1980 were void and not binding on the plaintiff. Plaintiff also claimed possession of the suit property. Another claim put in was that mutation dated 25. 11. 1969 was wrongly sanctioned. Case of the plaintiff was that Smt. Bujan was not entitled to succeed to the estate of Smt. Paton as the Will had been executed in favour of the plaintiff and the inheritence regarding the estate of Paton should have been sanctioned in favour of the plaintiff alone

(2.) DEFENDANTS 1 to 6 in their written statement denied the allegations about the adoption of the plaintiff. It was denied that any Will had been executed by Smt. Paton in favour of the plaintiff. Suit was stated to be barred by principle of resjudicata and under Order 9 Rule 9 and Order 2 Rule 2 of the Code of Civil Procedure Smt. Bujan filed a separate written statement and admitted the elaim of the plaintiff. She died during the pendency of the suit. None was brought on record as her legal representative. From the pleadings of the parties, the following issues were framed:

(3.) TRIAL Court under Issue No. 1 held that Bujan and Paton had 1/2 share each in the land in suit. Under issue No. 2, was held that plaintiff was adopted as a son by Smt. Bujan. Under issue No. 3, it was held that loss of original Will is not proved and even execution of the Will is also not proved. Under issue No. 4, it was held that the plaintiff was not heir to Smt. Paton. Under issue No. 5, it was held that as the plaintiff had no share in the estate of Paton, so Bujan could alienate the land in the suit. Under issue No. 6, it was held that the sale deeds were not obtained by fraud or undue influence. Issue No. 7 was decided against the defendants and hold that the suit was not barred by principle of resjudicata Under issue No. 8, it was held that the suit was not barred under Order 9, Rule 9 or under Order 2 Rule 2 C. P. C. Issues Nos. 9 to 12 pressed Under issue No. 13, it was held that the suit was not barred for non-joinder of necessary parties. As a result thereof, the suit was dismissed.