LAL CHAND Vs. KALI BAI

JUDGEMENT

(1.) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below arising out of a suit for declaration filed by the plaintiff-respondent.

(2.) The case of the plaintiff is that her father Tola Ram had three wives; namely Ghanni Bai, Kishani Bai and Ram Ditti. Ghanni Bai and Kishani Bai died issueless. Plaintiff and defendant No. 5 Lal Chand are the children of Tola Ram from his third wife Ram Ditti. Defendants No. 1 to 4 are the sons of defendant No. 5 Lal Chand. Tola Ram and his brother Ganesha Ram died at the time of partition of the country. In lieu of the land left by Ganesha Ram in Pakistan, defendant No. 5 Lal Chand was allotted land in village Kirawar being the legal heir of deceased Genesha Ram. Ganesha Ram has died issueless. In lieu of the land owned by Tola Ram in Pakistan, land was allotted in village Bhurtana to Ghanni Bai widow of Tola Ram and defendant No. 5 Lal Chand in equal shares. After consolidation, the land was allotted to defendant No. 5 Lal Chand and deceased Smt. Ghanni Bai. The land was jointly owned by Ghanni Bai and Lal Chand but Lal Chand, out of his greed, did not allow Ghanni Bai to reap the fruits of the land. She filed an application for partition of the land and started living separately. Lal Chand filed a civil suit No. 203 of 1958 seeking declaration that Smt. Ghanni Bai was not the owner of the land. She had been given the land in lieu of maintenance and that she has no right to get the land partitioned. This suit was compromised on 7-4-1960 and Ghanni Bai was held entitled to get the land partitioned but Ghanni Bai was restrained from alienating the suit land. The plaintiff has asserted that such clog on the right to alienate the property is fraudulent and by misrepresentation. It was stated that Smt. Ghanni Bai was the absolute owner of her share in the property after the commencement of the Hindu Succession Act, 1956. The plaintiff challenged mutation No. 644 on the basis of the Will dated 21-9-1978 sanctioned in favour of defendants No. 1 to 4 as illegal and void. It was alleged that the plaintiff being the daughter of Ghanni Bai would succeed to her estate on the basis of Will dated 16-12-1977. The plaintiff claimed that Will dated 21-9-1978 was never executed by Ghanni Bai. She was not in her senses. The Will has been obtained under undue influence, misrepresentation and fraud.

(3.) Defendant Nos. 1 to 4 filed a joint written statement. It was admitted by them that in lieu of the land held by Tola Ram in Pakistan, Ghanni Bai and Lal Chand were allotted land in equal shares in village Bhurtana and Paposa. After consolidation operations were completed, the land in dispute was given in lieu of the land originally allotted. It was admitted that the property in dispute was joint of Ghanni Bai and Lal Chand but denied that any application for partition was filed by Ghanni Bai. It was stated that Ghanni Bai was absolute owner of the property and she executed the Will dated 21-9-1978 which was registered on 22-9-1978. By virtue of the Will dated 21 -9-1978, the earlier Will stand revoked.