BODHU RAM Vs. DHARMI DEVI

JUDGEMENT

(1.) The above second appeal has been filed by the plaintiff in Civil Suit No. 250 of 1988 on the file of the learned Subordinate Judge 1st Class, Kullu. The plaintiff-appellant died and his legal representatives have been brought on record by an order dated 5.11.1996. The plaintiff has filed a suit for declaration that in terms of the Will dated 19.7.1978 executed by the deceased Surat Ram alias Surtu, limited rights were conferred upon the defendants, Smt. Budhi and Smt. Dharmi Devi and that after re-marriage or death of the said defendants, the suit properties in all comprising of five items is to revert to the plaintiff and the plaintiff is entitled to inherit the same and as such the plaintiff is not bound by the aforesaid mutation claimed to be wrongly and illegally attested by the revenue officer on the basis of inheritance in favour of the defendants, alleged to be, behind the back of the plaintiff and that the defendants have no right to claim themselves to be the absolute owners of the suit property, with consequential relief for permanent injunction restraining them from claiming to be the absolute owners or from in any manner encumbering the property or denying the rights of the plaintiff, under the Will.

(2.) The case of the plaintiff is that Surat Ram alias 'Surtu was the real brother of the plaintiff and defendants Budhi (since dead) and Smt. Dharmi Devi are his widows, that the deceased Surat Ram executed a Will dated 19.7.1978 giving certain limited rights of possession and enjoyment of the property in question with remainder and ultimate rights to the plaintiff and that he died, on 17.11.1981 without any male or female issue. The plaintiff also claimed that he had been maintaining the deceased and rendering services to him and it is only in recognition of the same, the Will came to be executed providing that in case the testator died without any issue, his wives, the defendants would hold the suit property for their maintenance and entitled to take the usufructs, of the entire suit property till their life time or the re-marriages, as the case may be, and in case of birth of any issue, such issue would be entitled to ultimately inherit the property and the defendants would not get anything and in case of re-marriage or death of the defendants as well as the absence of any issues the entire property would revert to the plaintiff and the plaintiff would be entitled to inherit the same. According to the .plaintiff, though limited rights were conferred on the defendants and they are not entitled to claim to be absolute owners or to alienate the property in any manner, after the death of Surat Ram though the plaintiff produced the said Will before the Revenue Officer, the Assistant Col: lector 1st Grade, Kullu wrongly and illegally, ignoring the said registered Will attested mutation No. 1906 of Phati Vashishat on 30.12.1982 and mutation No. 2857 of Phati Prini on 16.7.1988, which, according to the plaintiff, is against law and facts, in favour of the defendants and the claim of the plaintiff that mutation should not have been attested on the basis of inheritance in the teeth of the registered Will of the deceased whereunder only limited interest, according to the plaintiff, has been conferred upon the defendants. Further, the allegation on behalf of the plaintiff, as necessitating the filing of .the suit is that since 11.11.1988 the defendants have started asserting absolute ownership in respect of the properties to defeat the terms of the Will and the rights of the plaintiff said to have been given under the Will.

(3.) During the pendency of the suit, the 1st defendant Smt. Budhi appears to have died and therefore, the plaintiff claims that he has become entitled to recover the possession of half share held by her in terms of the Will. While that be the claim of the plaintiff, one Neel Chand, who has been substituted in the place of the 1st defendant as the legal representative asserted claim of ownership pn the basis of a Will said to have been executed by Smt. Budhi in. his favour and according to the plaintiff since the said Smt. Budhi had no absolute title in respect of the suit land, she was not competent to execute the Will in favour of Neel Chand and that in any event the so-called Will said to have been executed is a forged and fictitious one and not executed by Smt. Budhi. The plaintiff claimed to be entitled to recover possession of the half share of the suit land. The plaint was also accordingly got amended bringing on record the above subsequent developments and an amended plaint was also said to have been filed on 28.8.1991.