HIRA DEVI Vs. HIMI

JUDGEMENT

(1.) This second appeal under section 100 C. P. C. is by the defendants against a decree for possession over described share in certain plots land comprised in the Khasra Nos. mentioned in the operative portion of the judgment of the trial Court situate in Phati Halan, Kothi Nagar, Tehsil and District Kullu. This decree dated September 6, 1976, was affirmed by the learned Additional District Judge, Mandi at Kullu, in Civil Appeal No. 51 of 1976 on November 19, 1977. The second appeal was initially filed by one Budhu who was the first defendant in the suit (No. 19 of 1972). Budhu is now dead and is represented by his legal representatives. One Bali Ram was the holder and in possession of a number of agricultural plots comprised in the Khatas in dispute. He executed a Will in the year 1946. Under that Will half of the property was bequeathed to his wife, Smt. Uti, and the other half to his daughter, Smt Lachhmu, Bali Ram died on April 25, 1946. On April 30, 1946, the entire property of Bali Ram was mutated in the name of his widow, Smt. Uti, who was in possession thereof. Smt. Lachhmu instituted a suit claiming her half share under the Will of her father Bali Ram. A compromise was entered into between Smt. Uti and Smt. Lachhmu in the suit to the effect that Smt. Uti will continue to remain in possession of the entire property left by Bali Ram including the share of Smt. Lachhmu, during her life time whereafter the half share of Smt. Lachhmu will go to her. This was done on November 6, 1947. Smt. Uti remained in possession of the entire property till September 4, 1971, when she died. Smt. Lachhmu also died.

(2.) The heirs of Smt. Lachhmu filed the present suit on January 28, 1972, claiming possession over the share of the property which had been given to Smt. Lachhmu under the Will and in terms of the compromise decree dated November 6, 1947. The suit, as said earlier, was decreed on September 6, 1976 and the decree was affirmed in appeal by the learned Additional District Judge on November 19, 1977.

(3.) In paragraph 2 of the plaint it has been asserted that Bali Ram had executed a Will in respect of his property bequeathing half property to his wife Smt. Uti and the remaining half to the daughter. In paragraph 3 of the plaint the facts relating to the earlier suit and the compromise decree passed therein have been mentioned. Budhu, the first defendant, had averred in paragraph 2 of the written statement filed by him, where he was replying to the assertions on facts, that the statement in paragraph 2 of the plaint was denied and further that no Will had been executed by Bali Ram in favour of Smt. Lachhmu. Also, that the Will referred to in the plaint was fictitious. These assertions were replied by the plaintiffs in paragraph 2 of their replication. It was asserted that the execution of the Will had been admitted by Smt. Uti in the earlier suit, decided on November 6, 1947, and that as a successor -in -interest of Smt. Uti the first defendant was estopped from assailing it.