MARU RAM Vs. BANWARI LAL

JUDGEMENT

(1.) Briefly stated, facts of the case are that plaintiff Sh. Maru Ram represented through his LRs i.e. sons Sh. Sadhu Ram and Sh. Naresh Kumar as well as Sh. Heera Ram - brother of Sh. Maru Ram, all residents of Mohalla Sarai Dushran, Narnaul District, Mahendergarh had brought a suit for declaration against defendants Sh. Banwari Lal, since deceased through his LRs Sh. Munna Lal and Sh. Rattan Lal - sons, Smt. Leela Devi and Smt. Pista Devi - daughters, Smt. Bhagwati Dei - wife as well as Smt. Nirmala Devi - daughter of pre-deceased sister Smt. Basti that they are owners in possession to the extent of 1/2 share i.e. 10 biswa each in the land comprised in khewat No. 669 khatauni No. 955 khasra No. 2667/1/1(1-0) as per jamabandi for the year 1989-90 situated at Narnaul and are owners in possession to the extent of equal share in the land measuring 10 bigha 17 biswa comprised in khewat No. 948 khatauni No. 1358 khasra No. 310/2 (2-15), 311/5-15 and 312/2-7 kita as per jamabandi for the year 2000-2001 and are owners in possession in equal share of a house measuring 419 Sq. yard by virtue of Will bearing No. 75 dtd. 9/12/1988 and the mutation of inheritance of deceased Sh. Jhutha Ram bearing No. 1119 dtd. 27/9/2001 and the mutation No. 5365 dtd. 15/2/2001 are wrong, illegal, null and void and liable to be set aside and further plaintiffs are joint owners in possession of a tractor purchases by Jhutha Ram by virtue of bill No. 455 dtd. 8/5/1999 on the basis of Will. In the suit the plaintiffs also craved for permanent injunction restraining the defendants from interfering, alienating or creating the charge over the property in question.

(2.) As per the version of the plaintiffs Sh. Jhutha/Ram was owner in possession of the land measuring 10 biswas and 10 bighas 17 biswas as detailed in the plaint and in addition to that he was owning and possessing a house measuring 419 sq. yards and 8 Sq.feet by virtue of sale deed No. 759 dtd. 11/1/1963; that he was also owning a tractor; that defendant No. 1 - Sh. Banwari Lal son of Sh. Jhutha Ram was residing separately and he never looked after his father; that Sh. Jhutha Ram had arranged the marriage of Smt. Basanti Devi mother of defendant No. 2 and thereafter she had been residing in her matrimonial home; that Jhutha Ram was residing with the plaintiffs, who were looking after him; that pleased with their services Jhutha Ram executed a Will dtd. 9/12/1988 in favour of the plaintiffs vide which he bequeathed the suit property to the plaintiffs in equal shares; that Jhutha Ram died on 24/1/2001; that after his death the defendants in collusion with revenue officials got the mutation recorded of inheritance of Jhutha Ram on the basis of natural succession, concealing the existence of Will in favour of the plaintiffs, therefore, the mutations are illegal and liable to be set aside; that the plaintiffs had requested the defendants to admit their claim but they refused to do so, giving rise to a cause of action to the plaintiffs to file the suit.

(3.) On notice the defendants appeared and filed their written statement contesting the assertions in the plaint raising various preliminary objections; challenging the maintainability of the suit, locus standi of the plaintiffs to bring the same and any cause of action having arisen to them to file the suit. On merits, they stated that the property in question is the joint Hindu Family coparcenary property; that Jhutha Ram was running a dairy in his land and was selling milk; that Jhutha Ram along-with his three sons were taking the land on batai basis; that they were living jointly; that the land measuring 10 bigha 17 biswa comprised in khewat No. 948 khatauni No. 1358 khasra No. 310/2 (2-15), 311/5-15 and 312/12-7 kita was purchased from the income of joint pool. The remaining land was also purchased from the income of common pool; that at the time of purchasing the tractor, a loan in the sum of Rs.25,000.00 was taken from the Primary Co-operative Development Bank, Namaul; that since Jhutha Ram was the karta of the family, therefore, everything was purchased in his name, however, the same was used by all the family members of Jhutha Ram; that Jhutha Ram was residing with his family in his ancestral house and he had purchased a house by virtue of sale deed No. 759 dtd. 11/6/1963; subsequently, a new house was constructed there. According to the answering defendants, they were not living separately from Jhutha Ram; that Jhutha Ram never executed the Will in favour of the plaintiffs; that Jhutha Ram was having age of 85-90 years and was unable to see and was also hard of hearing and his state of mind was not proper; that the Will was wrong, against law and as a result of fraud and misrepresentation; that Kurda Ram the witness of the Will never witnessed the same, however, he told with regard to the attestation of the power of attorney; that the Will was not read over before Registrar; that Kurda Ram also had filed an affidavit regarding non-execution of Will which was also attached with the written statement/counter claim; that the mutation in question was executed in the presence of plaintiff Maru Ram, who himself appeared before the revenue official, therefore no fault can be found with the same; that the parties are owners in possession in equal share of the property left by Jhutha Ram. The defendants had raised counter claim as per the assertions made in the written statement. In the end, they prayed for dismissal of the suit and acceptance of their counter claim.