ROSHANI DEVI Vs. DOLMA DEVI

JUDGEMENT

(1.) Smt. Roshani Devi (Appellant herein) is the widow of jagat Ram, son of Khazana Ram. Her husband died "when her father -in -law Khazans Ram was alive Khazana Ram was the owner of the suit land. Smt. Roshani Devi being the widowed daughter -in -law of Khazana Ram filed a civil suit No.266/92 on 7.9.1991 in forma pauperis. She prayed for grant of maintenance allowance of Rs.500/ - p.m. She also prayed for a decree of declaration to the effect that being the daughter -in -law she is entitled to maintain herself from the estate of her father -in -law. It was also prayed that Khazana Ram be restrained by a decree of permanent prohibitory injunction from alienating the suit property in any manner, which may affect her right of maintenance. Along with the suit, an application for interim relief was also filed and the Sub Judge 1st Class, Hamirpur was pleased to grant an ad interim injunction restraining Khazana Ram from alienating the suit land till further orders. The said ex parte ad interim injunction was confirmed on 22.10.1991. Khazana Ram filed an appeal against the said order before the learned District Judge, Hamirpur. The learned Distinct Judge disposed of the appeal of Khazana Ram by holding that Khazana Ram could not dispose of the disputed property to any person.

(2.) During the pendency of the earlier case, Man Chand who is the son -in -law of Khazana Ram, filed a suit being Civil Suit No. 219 of 1991 on 29.11.1991, claiming that he is the owner in possession of the suit land, which is also the subject matter of the present suit and that he had perfected his title to the suit property by way of adverse possession. Khazana Ram admitted the claim of Man Chand and the suit of Man Chand was decreed on 26.12.1991. Thereafter the appellant filed civil suit No. 261/92(73/98) on 6.11.1992 out of which the present proceedings arise. In this suit she claimed that the decree obtained by Man Chand against Khazana Ram was a collusive decree to defeat her right of maintenance and to nullify the orders of the court passed in her favour. This suit was contested by Khazana Ram and Man Chand. During the pendency of this suit Khazana Ram expired on 24.7.1993. After the death of Khazana Ram, two of his daughters Harbansi Devi and Naratu Devi were brought on record as his legal heirs.The plaintiff amended the suit and claimed that after the death of Khazana Ram she was entitled to 1/3rd share in the suit property. Man Chand in reply took the defence that Khazana Ram had bequeathed his property by a Will in favour of the sons of Man Chand i.e. Rakesh Kumar and Raj Kumar, who were necessary parties to the suit. It would be pertinent to mention that these sons of Man Chand are not the grand sons of Khazana Ram since they were not born from the womb of the daughter of Khazana Ram. Man Chand was earlier married to Sarla daughter Khazana Ram who died during the lifetime of Khazana Ram, Man Chand thereafter married Dolma Devi and it was out of this wedlock that Rakesh Kumar and Raj Kumar were born. The trial court on the pleadings of the parties framed a number of issues. For the purpose of the present appeal it would only be pertinent to refer to two issues i.e. Issue No.7 and Issue No.15, which are to the following effects: Issue No.7. Whether the suit is bad for non -joinder and mis -joinder of the necessary parties ? OPD Issue No.15 Whether lalte Sh. Khazana Ram executed a valid Will in favour of Sh.Rakesh Kumar etc. as alleged. If so, its effect ? OPO

(3.) An applications was filed by Man Chand for impleading Rakesh Kumar and Raj Kumar the alleged beneficiaries of the Will as defendants in the suit. This application was contested by the plaintiff and the "trial court rejected the application. Aggrieved against the order passed by the trial court Man Chand filed C.R.No. 298 of 2001 in this court, which was decided by K.C. Sood, J. on 15.3.2002 . With regard to the impleadment of Rakesh Kumar and Raj Kumar he held as follows: ......"Regarding impleadment of Rakesh Kumar and Raj Kumar, it is noticed, they are nether necessary nor proper parties to the suit."