SMT. INDERAWATI Vs. RATTAN

JUDGEMENT

(1.) This Regular Second Appeal is directed against the two civil appeal Nos. 383-13 of 1981 and 368-13 of 1981 passed by Addl. District Judge, Bhiwani The present appellant was the plaintiff before the trial court, who filed a suit seeking declaration that she is the owner in possession of houses measuring 322 sq yards 16 sq. inches and another 340 sq. yards 23 sq. inches situated in village Jhojhu Kalan and also sought declaration for setting aside the sale deed executed on 25.5.1979 by Smt. Ram Piari in favour of defendant Nos. 2 and 3.

(2.) Briefly stated facts as emerge from the record are that one Sardara Singh had one son Balbir Singh, wife Dhapan and a daughter Ram Piari. The appellant who is the widow of Balbir Singh filed a suit claiming that the houses in question subject matter of this suit, were constructed by Balbir Singh and she being his widow is entitled to acquire property to the exclusion of Smt. Dhapan wife of Sardara Singh and Ram Piari daughter. At the time of filing of the suit, Smt. Ram Piari had sold ⅚th of the share of the two buildings. In favour of Rattan son of Maman and Subedar Nihal Singh son of Rup Ram, defendant Nos. 2 and 3 respectively The defendants contested the suit and claimed that the property in question was constructed by Sardara Singh on the ancestral land. The trial court framed as many as 9 issues. However the relevant issues which relate to the rights of the parties were issues Nos. 1 to 4, on the basis of the evidence recorded by the trial court. It was of the opinion that the construction of the property was raised Jointly by Sardara Singh and Balbir Singh, husband of the plaintiff-appellant. The trial court however while dividing the shares of the parties held that Ram Piari daughter of Sardara Singh will inherit 176th share of property of Sardara Singh she being the Class I heir and the widow of the son is not entitled to any share out of the share of Dhapan. This finding was returned by the trial court while deciding the issue No 5. The Judgment and decree dated 30.10.1981 passed by the trial court became subject matter of challenge before the Addl. District Judge, Bhiwani wherein two appeals were preferred one by the present appellant-lnderawati, widow of Balbir Singh and other by Rattan and Subedar Nihal Singh, who are the vendees of the property having purchased the same from Ram Piari. The appellate court dismissed the appeal of present appellant and allowed the appeal preferred by Rattan and Sardar Nihal Singh upholding the sale in their favour vide its judgment and decree dated 17.4.1982. This Judgment and decree is the subject matter of the present appeal.

(3.) I have heard learned counsel for the parties. Learned counsel for the appellant tried to impress upon the court that the courts below have not properly appreciated the evidence and thus this court should interfere in exercise of the Jurisdiction under Sec. 100 of Civil Procedure Code, 1908. I am unable to accept this contention that the finding of the courts below are not based upon correct appreciation of evidence. No substantial question of law as framed or arises in the present appeal. However, while going through the judgment of the trial court. It became apparent that the courts below have committed one glaring illegality while dividing the shares. It is admitted case of the parties that Sardara Singh died leaving behind Balbir Singh son, Dhapan widow and one daughter Ram Piari. It is not in dispute that Sardara Singh died intestate and his share accordingly, devolved upon all the three heirs in equal share. Balbir Singh pre-deceased his mother Dhapan and his property accordingly devolved upon his widow and the mother Dhapan in equal shares being Class I heirs. After the death of Uhapan, her entire share has been given to Ram Piari by the trial court on the plea that the daughter being Class I heir alone is entitled to the share of female dying intestate and excluded the widow of the son from the succession and inheritance. This finding of the trial court is contrary to law widow of the pre-deceased son is also one of Class I heir under the Hind Succession Act and Schedule. Therefore, the share of Dhapan has to devolve upon the present appellant and Ram Piari in equal shares. Both the courts have ignored this settled proposition of law and committed an error while dividing the shares.