LAXMI NARAIN Vs. GULAB CHAND

JUDGEMENT

(1.) THIS is Defendant's second appeal against whom the suit for declaration and possession has been decreed by both the Courts below.

(2.) IT is the estate of one Ganga Sahai which is in dispute. The Plaintiff -Respondent Gulab Chand claimed himself to be the son of Parma Nand from his wife Sukh Devi. Parma Nand was alleged to have been adopted by Ganga Sahai. During his life time, Ganga Sahai executed the will dated November 27, 1937, Exhibit P -1. He died oh June 29, 1940. The said will was executed by him in favour of his wife Badamo. After her death, the property was to go Sukh Devi the wife of his adopted son Parma Nand. However, the said adopted son (Parma Nand) was excluded from inheritance According to the will, Exhibit P -1, after Sukh Devi who was given the life estate, only the estate was to go to the male child of Sukh Devi on attaining majority. The Plaintiff on the basis of the will, Exhibit P -1, filed the present suit on January 2, 1969, against Laxmi Narain, the adopted son of Smt. Attri Devi, widow of Muni Lal who was in possession of the suit property since long being a co -sharer. Badamo also died on 1st December, 1945. After her death, the property was mutated in favour of Attri Devi widow of Muni Lal. The sanctioning of the said mutation was contested by Sukh Devi wife of Parma Nand and the mother of the Plaintiff. She also got a probate on the strength of the will, Exhibit P -1, on 4th September, 1948. On the basis of the will and the probate, the mutation of the said land was sanctioned in favour of Sukh Devi. Then she sought the partition of the suit property where the question of title was raised. Thus, Sukh Devi was obliged to file a civil suit on December 30, 1953 against Attri Devi widow of Muni Lal. The suit was filed for a declaration to the effect that she was the owner of the suit property in view of the entries in the revenue record in her favour. Sukh Devi failed in that suit upto the High Court. The judgment of the High Court dated December 19, 1958, is, Exhibit P -39. Meanwhile Attri Devi widow of Muni Lal died on March, 15, 1958. On her death, Mutation was sanctioned in favour of Laxmi Narain, the Defendant -Appellant. As stated earlier, the Plaintiff filed the present suit on January 2, 1969, on the basis of the will, Exhibit P -1, alleging that he having attained majority was entitled to the suit property. The suit was contested inter alia on the ground that the will, Exhibit P -1, was not validly executed and was not in accordance with the laws of the Jind State at that time. The will was also pleaded to be invalid in view of the provisions of Section 114 of the Indian Succession Act, 1925, (hereinafter called the Act). A plea was taken that the suit was barred by the principles of res judicata because the Plaintiff's mother Sukh Devi had already failed in her suit for declaration upto the High Court. The locus standi of the Plaintiff was also challenged to file the present suit during the life time of Sukh Devi. It is the common case of the parties that Sukh Devi is still alive. The Defendant also claimed adverse possession. It was denied that the Plaintiff was the son of Sukh Devi because according to the Defendant, Parma Nand had two wives Sukh Devi and Ratni. The Plaintiff, according to the Defendant, was born from the womb of Rami and not from the womb of Sukh Devi. On the pleadings of the parties as many as 26 issues were framed. On the material issues, the trial Court found that the will, Exhibit P -1, was validly executed though no attesting witness was produced as none was alive at that time, but the father of the Plaintiff, Parma Nand, who is said to be present at the time of the execution of the will, came into the witness -box and proved the will. It was also found that the Plaintiff was coming to the Court on the basis of the will, Exhibit P -1 and, had, thus, an independent right to file the suit. He did not claim through his mother Sukh Devi and, therefore, any suit filed by Sukh Devi was of no consequence and the judgment therein did not operate as res judicata against the Plaintiff. Similarly, even if Sukh Devi was alive, the Plaintiff had the locus standi to file the suit because he was coming to the Court on the basis of the will, Exhibit P -1 as he had attained the majority and was, thus entitled to succeed to the estate of Ganga Sahai. The other pleas of the Defendant were also negatived. Consequently, the Plaintiff's suit was decreed. In appeal, four points were argued on behalf of the Defendants -Appellants, as given in paragraph ten of the judgment of the lower appellate Court. It was found by it that it was proved that the Plaintiff was born on March 26, 1949, and, thus, the suit brought by him was not barred by limitation The trial Court had also found that the Plaintiff had proved that he was born to Sukh Devi wife of Parma Nand. According to the lower appellate Court, will in favour of an unborn person could be made validly. The objection that the will was not executed on the stamp paper of Rs. 5/ -under the law of the erstwhile Jind State was also negatived on the ground that the probate had already been obtained by Sukh Devi. In view of these findings, the decree of the trial Court passed in favour of the Plaintiff was maintained. Dissatisfied with the same, the Defendant has come up in second appeal to this Court.

(3.) AFTER hearing the learned Counsel for the parties and going through the relevant evidence on the record, I am of the view that the whole approach of the Courts below is wrong, illegal and misconceived.