MILKHI Vs. AHILYA

JUDGEMENT

(1.) The present second appeal was admitted on 07.12.2000, on the following substantial questions of law:

(2.) After having lost in both the Courts below, the defendants are in appeal before this Court. In short, the facts giving rise to the present regular second appeal can be stated thus. Both the parties are closely related. Case of the respondent has been that her father Shri Roomi Ram was the owner of the suit property. He died on 30th March, 1988. During his life time, he had executed a Will, which was registered on 4.10.1985, in her favour. She also performed his last rites, thus being his daughter as well as beneficiary under the Will, she was entitled to inherit his property. It is alleged that in her absence the defendants-appellants got Mutation No. 138 attested in their favour staking their claim on incorrect facts. Thus, she had filed a suit seeking declaration that the said mutation was wrong and illegal, as she was entitled to inherit the property with the consequential relief of possession. The suit was decreed in her favour, thereafter Mutation No. 149 was attested on the basis of the Will aforesaid. In this subsequent suit, she sought injunction, thereafter the appellants allegedly took the possession of the suit property in the month of August, 1992, without any right, title or any authority, as such, she amended the plaint praying for possession.

(3.) The suit was resisted and contested by the appellants. They filed the written statement and raised the preliminary objections regarding maintainability of the suit and also took up the objections of estoppel and questioned the locus-standi of respondent to file the suit. On merits, they contented that the parties are ?Gaddis' and are governed by custom in the matter of succession, thus the provisions of Hindu Succession Act were not applicable to them. It was further averred that as per custom prevalent amongst the ?Gaddis', the daughters do not inherit the property of their father, but only the widow can enjoy the properly till her life time. They got attested the mutation No. 138 in their favour. According to them, it was wrongly cancelled. They also denied the execution of Will in favour of the respondent as alleged as the deceased Roomi Ram was not competent to do so. It was also averred that the Will propounded by her was forged and fictitious document. It was also a case of the appellants that the respondent after marriage was residing in her inlaws for about 30 years and they were in the possession of the suit property.