SUKHDEVI Vs. RAM PIARI

JUDGEMENT

(1.) THE plaintiff whose suit was dismissed by courts below is the appellant in this court. The suit is at the instance of the daughter against her mother and her sister. The suit had been filed for a declaration that a decree obtained in Civil Suit No.164 of 1979 titled Ram Piari Versus Sukh Devi and others was null and void, bogus, inoperative and not binding on the plaintiff. The property originally belonged to father Maru. Maru's widow is Ram Piari -the 1st defendant. The 1st defendant had two daughters, who were the plaintiff and the 2nd defendant. It appears that civil suit had been filed by Ram Piari and her daughters suit against Maru when the latter admitted the plaintiffs in the said suit as entitled to 1/4th share. The Civil Suit No.551 of 1976 was with reference to 1/4th share each for the three plaintiffs of agricultural land in 173 kanals 14 marlas in certain specified khatauni numbers and killa numbers. The decree was obviously collusive and no defence was taken and allowed for the plaintiff's 1/4th share. A subsequent suit filed in Civil Suit No.385 of 1977 had been at the instance of Ram Piari against her husband for the very same relief in respect of the very same subject matter that Ram Piari was entitled to 1/4th share. A subsequent suit has been filed on 02.09.1977 and again as per the statement of parties, Ram Piari alone had been granted the decree for 1/4th share. The 3rd suit has been filed in Civil Suit No.164 of 1979 by Ram Piari against both the daughters and they have admitted to the plaintiff's claim and allowed for declaration that the mother Ram Piari was entitled to a 1/2 share. The validity of the decree in Civil Suit No. 164 of 1979 alone is in challenge and it is imperative that we examine the effect of the frame of the suit and the validity of the decree obtained under it. II. The source of right for the plaintiff

(2.) THE suit was for declaration to the effect that the plaintiff Ram Piari was the owner in possession of the agricultural land to the extent of 1/2 share which had been given to the defendants equally by Maru excluding the land sold by the plaintiff out of the total agricultural land of 173 kanals 14 marlas. The copy of the plaint has been filed as Ex.D3 and it reads that Maru was the owner in possession of the suit land in the heading of the plaint and he died about 2 to 3 months earlier. The averment in the plaint reads that Maru had allowed for 1/4th share to each of his daughters during his lifetime and had given the remaining half share to his widow. The plaint reads that after the lifetime of Maru, daughters demanded their share from the plaintiff in whose possession the whole of the estate of Maru had been held since the Month of January 1989. The plaint would record that there had been disputes between the parties and by virtue of the admission by the daughters, a family settlement had been entered into, under the terms of which, the defendants admitted that they would transfer their share in the suit land in the name of the plaintiff on an understanding that after the death of the plaintiff, they would get the land divided equally between them. The plaint further recites that there is one baby girl of 1 year of age with the plaintiff who was under the care and protection of the plaintiff and had to be married in future. The prayer in the suit was, therefore, that the plaintiff (in that suit) was entitled to a 1/2 share in all the properties measuring 173 kanals 14 marlas after excluding the property sold. III. Plaintiff's original entitlement to 1/4th share cannot be denied either as a heir to father or as a beneficiary of earlier decree; compromise decree was itself an intrinsic admission of such fact

(3.) SINCE the plaintiff claimed that she had never appeared in court nor did she acknowledge the mother's entitlement to her 1/4th share, the thumb impressions of the plaintiff Sukh Devi had been taken and sent to an expert who was examined as DW6. He gave evidence to his report as DW6/10 that the thumb impressions found in the statement and the compromise were the same as the admitted thumb impression and that they belonged to the same person. As a matter of fact relating to the genuineness and the identity of the thumb impression, I will not find any reason to modify the finding. The trial Court had actually held that the plaintiff herself could not have been present in court. This was not accepted by the appellate Court and I am prepared to take reversal of the finding rendered by the appellate Court regarding the presence of the plaintiff as established and that she had admitted the claim of the plaintiff in court. V. Vested right in property cannot be lost oral settlement or affirmed through unregistered compromise