MOHINDER LAL Vs. TULE RAM

JUDGEMENT

(1.) The present appeal was admitted on the following substantial questions of law :- " 1. Whether the findings of the courts of facts (both Courts) holding the suit to be within limitation is vitiated by non-consideration of the oral as also the documentary evidence produced by the parties?

(2.) Whether the document purporting to be partition deed-cum-Will being unregistered, is inadmissible in evidence and both the courts below have given a wrong approach thereto by acting upon it and consequently holding the plaintiff to be the exclusive owner in possession of the property in dispute? 2. Facts relevant for determining the aforesaid questions, may be noticed. Respondent Tule Ram, hereinafter called plaintiff, filed a suit for declaration that he was owner in possession of 3 Bighas 10 Biswas of land, bearing Khasra No. 901, situate in Phati Rot-I, Kothi Bhallan, Tehsil and District Kullu, as the said land had been given to him by his father through a Will-cum- partition deed, executed in the year 1964. By way of further relief, he prayed for issuance of permanent prohibitory injunction, restraining his brothers Rishi Ram, Chune Ram, Baman Dev and two sons (Thakar Datt and Ram Krishan) of pre-deceased brother Uttam Chand and the present appellants, who are the legal heirs of his sister Chander Mani, who all were impleaded as defendants, from causing any interference in his possession. Facts constituting the cause of action as per pLalnt, are thus. Hari Chand, father of the plaintiff and defendants Rishi Ram, Chune Ram, Banian Dev and grandfather of defendants Thakar Datt and Ram Krishan and the father of Chander Mani, predecessor of the present appellants, who were impleaded as defendants No. 6 to 9, owned the above described land and certain other property. He executed a Will in respect of the suit property in favour of the plaintiff and defendant Baman Dev, a brother of the plaintiff, on 13-11-1964 and put them in possession thereof. On the same day he executed three more Wills, whereby rest of the property, owned and possessed by Hari Chand, was bequeathed to his remaining three sons, namely Rishi Ram, Chune Ram and Uttam Chand, father of defendants-Thakar Datt and Ram Krishan. No part of his estate was bequeathed by Hari Chand in favour of his daughter. Another son of Hari Chand, named Tikam Ram had been unheard of for the last twenty years and so nothing was given to that son under the Will-cum-partition papers. Hari Chand died sometime in the year 1965 and on his death the suit land was mutated in favour of all the sons and the daughter of Hari Chand in accordance with the law of inheritance. The plaintiff could not lay cLalm to the suit property at the time of the attestation of mutation, because the Will that had been executed by late Hari Chand, was not available with him as it had been retained by Hari Chand. After sometime a partition between the plaintiff and Baman Dev, his brother, took place and in that partition suit land fell to plaintiffs share. Thus, he became exclusive owner in possession. In the month of Chaitra, 1988 when the plaintiff was reading some Puran books of his father on the first day of the new Samvat. he found the four documents executed by Hari Chand in the form of Will-cum-partition deed in the said Puran book. In June 1988 defendant No. 1 Rishi Ram threatened to interfere in the possession of the plaintiff. So the suit was filed.

(3.) Present appellants , who are the legal heirs of Chander Mani, a daughter of Hari Chand, filed a separate written statement in which they pleaded that the suit was barred by time, the suit property was jointly owned and possessed by the plaintiff and the defendants and without getting the property partitioned, the plaintiff was not entitled to the relief of injunction. The plaintiff was alleged to have not approached the Court with clean hands. It was also alleged that without making the entire immovable property of late Hari Chand as the subject-matter of the suit, the plaintiff was not entitled to the relief cLalmed by him. On merits, it was denied that any Will was executed by Hari Chand in favour of his sons, as alleged in the pLalnt.