SOMA Vs. BRIJ LAL MANOHAR LAL AGGARWAL

JUDGEMENT

(1.) THIS Letters Patent Appeal filed by Shrimati Soma is directed against the judgment of learned Single judge whereby he accepted the appeal of Brij Lal defendant-respondent, reversed the decisions of the courts below and dismissed the suit for possession of the land in dispute brought by the appellant.

(2.) THE brief facts of the case are that Kishan Chand respondent NO. 2, who was a kamboh by caste, made a gift of the land in dispute measuring 27 Bighas and 4 biswas in favour of his wife Shrimati Indi as per registered gift deed dated the 3rd of June 1944. Shrimati Soma appellant is the daughter of Kishan Chand and shrimati Indi, Shrimati India died in November 1948 leaving the appellant who was then a minor as her sole heir. During the minority of the appellant, her father kishan Chand respondent No. 2 mortgaged 11 Bighas and 2 biswas out of the land in dispute for Rs. 2,5000/- in favour of Brij Lal respondent on the 8th of November 1951. Subsequently, Kishan Chand created another mortgage of 6 Bighas and 2 biswas out of the land in dispute in favour of one Kishan Chand, son of Mathra dass, for Rs. 1,000/ -. On 23rd April 1955 Kishan Chand respondent NO. 2 sold the entire land in dispute in favour of Brij Lal respondent for Rs. 8,000/ -. Out of the sale consideration, the two previous mortgages of portions of the land in dispute were to be redeemed. According to the appellant as she had become the sole owner of the land in dispute after the death of her mother Shrimati Indi, her father kishan Chand respondent had no right to alienate the same. The appellant, accordingly, brought the present suit for possession of the land in dispute.

(3.) THE suit was resisted by Brij Lal respondent who pleaded that the plaintiff was not the daughter of Shrimati Indi and that Kishan Chand respondent No. 2 had not made a valid gift of the land in dispute in favour of his wife Shrimati Ind. Kishan chand was stated to be governed by custom in matters of alimentation and succession. Brij Lal also claimed protection of his title under section 41 of the transfer of Property Act.