SHAKUNTLA SHARMA Vs. JOGINDER KAUR AND OTHERS

JUDGEMENT

(1.) Learned Additional District Judge, Solan vide judgment dated 31.12.1997, passed in civil appeal No.33-S/13 of 1995, has dismissed the appeal preferred by the appellant, hereinafter referred to as 'the plaintiff' and affirmed the judgment and decree dated 9.8.1995 passed by learned Senior Sub Judge, Solan in case No.557/1 of 1988 whereby the suit has been decreed for the relief of permanent prohibitory injunction, whereas, dismissed qua the relief of declaration that the plaintiff is owner of the suit land entered in Khewat/Khatauni No.23, 5/9, bearing khasra Nos.45/4, 37/25, 35/6, 48/32/18, 3, 17, measuring 8 bighas 14 biswas situated in village Bhaduni, Kumarhatti, Tehsil and District Solan. While the plaintiff being aggrieved from the rejection of the relief of declaration so sought, had assailed that part of the impugned judgment and decree in the lower appellate Court, at the same time, the respondents No.6 and 7, hereafter referred to as 'the defendants', had challenged that part of the judgment and decree whereby the suit of the plaintiff for the relief of permanent prohibitory injunction has been decreed. Learned lower appellate Court vide judgment and decree impugned in the present appeal has, however, dismissed both appeals and upheld the judgment and decree passed by learned trial Court. Aggrieved thereby this appeal has been preferred before this Court on the ground, inter alia, that both courts below have miserably failed to appreciate the pleadings of parties and also the oral as well as documentary evidence in its right perspective which has led in recording the erroneous findings.

(2.) It is the case of plaintiff-appellant that her right to inherit the property left behind by her deceased father ought to have been considered by the defendants. It is Hindu Women's Right to Property Act, 1937 which extends such a legal right in her favour. Even on the death of her father and her mother, she being in possession of the suit property till the Hindu Succession Act, 1956 has come into force, her limited right, if any, in the suit property has ripened into full ownership and, as such, learned lower Court should have declared her owner in possession of the suit property to the extent of her share. The findings to the contrary, according to the plaintiff, are neither legally nor factually sustainable and rather erroneous and perverse. No doubt, the parties belong to Gujaranwala and on migration settled at Patiala, the then Pepsu Estate and they being Hindu in the matter of succession, were governed by the provisions of law applicable to them at the relevant time with suitable modifications. Both courts below have not appreciated such legal position attracted in this case and to the contrary, acted upon the mutation Ex.PW-1/B which was attested behind her back and without any notice to her. The subsequent entries in the record merely for fiscal purposes could have not so heavily weighed with the learned trial Court so as to reject the relief of possession, she sought. The findings to the effect that the suit was time barred are also stated to be not legally and factually sustainable. It is further pointed out that both courts below have erred in law while holding that the plaintiff and her mother, Smt. Iqbal Devi Goswami both were precluded from inheritance in the property left behind by her father, who allegedly died intestate. Such approach, according to the plaintiff, is not only wrong but patently perverse for the reason that both courts below have misconstrued and misinterpreted the provisions of Hindu Women's Right to Property Act, 1937. On the other hand, no doubt, reliance has been placed on the judgment passed by this Court, which according to her, is not at all attracted to the facts and circumstances of this case. The area where the land is situated was not part of the territory of old Himachal, but part and parcel of erstwhile Punjab and thereafter that of erstwhile Estate of Pepsu. Therefore, the judgment of this Court was not applicable in the case in hand and to place reliance thereon amounts to exercise of jurisdiction illegally. The provisions of Hindu Succession Act have also been stated to be mis-read and mis-interpreted, particularly, Sections 14 and 15 thereof. The impugned judgment and decree being perverse has been sought to be quashed and set aside.

(3.) The appeal has been admitted on the following substantial questions of law:-