ZARINA BEGUM Vs. FAQUIR HUSSAN

JUDGEMENT

(1.) Anwari Begum filed a civil suit against her daughter Zarina Begum for mandatory injunction to hand over vacant possession of portion of the house shown in red colour in the site plan attached to the plaint situated in Sunami Gate, Malerkotla, District Sangrur, on the ground that her daughter was a licensee under her and she had terminated the licence. The daughter set up in defence that the disputed portion had been gifted to her by the plaintiff on the basis of a writing Exhibit D-2, dated March 6, 1982. The trial Court found that the execution of Exhibit D-2 was not duly proved. Moreover, it was not a registered document and decreed the suit.

(2.) The daughter went up in appeal and during the pendency of the appeal before the District Court, the plaintiff died in the year 1986. Two of her sons filed an application for bringing them on record as legal representatives of the deceased and mentioned therein that the defendant was also one of the L.Rs. being daughter of the deceased. Both the sons were allowed to be impleaded as L.Rs. in place of the plaintiff and the defendant was already on record as appellant in appeal. During the pendency of appeal, Zarina Begum defendant filed an application for amendment of the written statement to plead that the parties were governed by custom and not by Mohammedan Law and, thus, claimed 1/3rd share instead of 1/5th share in the estate left by her mother. She also wanted to plead that on the death of her mother she has become a co-sharer and, as such, the suit for taking possession from her on the basis of mandatory injunction could no longer continue although it was not specifically stated. The lower Appellate Court dismissed amendment as not necessary for doing justice between the parties and the defendant cannot be allowed to take the plea of inheritance as earlier she had denied the title of mother on the basis of gift. This is defendant's revision petition against the aforesaid order.

(3.) It cannot be disputed that on the death of her mother whether custom applies or Mohammedan Law, she would get some share in the estate left by her mother and thus, would be a co-sharer in the house and to the extent of her share, she would be entitled to protect her possession. Since her right to occupy the house as a licensee stands extinguished on termination of the licence, this new development which came into being during the pendency of the suit has to be taken notice of by the District Judge as a supervening fact while deciding the appeal even without the defendant's claiming amendment of the written statement because it is the duty of the Court to take into consideration all the supervening facts which come into being during the pendency of the litigation.