DARSHAN KUMARI Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) CLAIMING right through Khoju Ram, the appellant filed a suit for declaration to the effect that the sale deed executed by defendant No. 2 in favour of defendant No. 1 dated 14 -7 -1966 in respect of the house was null and void inoperative so far as the appellant was concerned. It was submitted that the said Khoju Ram had executed a Will in favour of the plaintiff, defendant No. 2 and one Kasto. Suit house was assigned to defendant and Kasto jointly. After the death of Kasto, her half share in the suit house was to devolve upon the plaintiff by operation of the provisions of the Hindu Succession Act but defendant No. 2 instead of honouring the rights of the plaintiff, tried to defeat the same by selling the suit house and other house. The plaintiff allegedly took timely action by filing a suit against defendant No. 2 for joint possession along with application for temporary injunction restraining defendant No. 2 from alienating the suit house pending disposal of the suit. The temporary injunction was issued on 1 -3 -1986 It was submitted that the said suit was compromised and a compromise decree was passed on 19 -11 -1970 providing that both the houses referred to in the plaint, including the suit house, shall be enjoyed by defendant No. 2 during her life time and after her death, the plaintiff -appellant became the owner of those houses. It was contended that defendant No. 2 as per the terms of the Will of Khoju Ram and the compromise decree had to enjoy the other house previously owned by Khoju Ram only during her life time. Defendant No. 2 is stated to have executed a Will in respect -of the said house in favour of one Smt. Simla Devi. The will is alleged to have been executed without any right which prompted the pjaintiff appellant to file the suit for declaration for cancellation of the will but when she obtained the copy of the will, she came to know about the sale deed, the subject matter of the present litigation. It is submitted that defendant No. 2 had no right to alienate the suit house to any body as she was not the absolute owner of the suit house. The sale deed was alleged to be null and void so far as the plaintiff was concerned. .

(2.) THE suit of the plaintiff was resisted by the defendants on various grounds resulting in the framing of the following issues:

(3.) BOTH the courts below dismissed the suit filed by the appellant against which the present appeal has been filed on the ground that the courts below have not properly appreciated the evidence led and the law applicable in the case. It is submitted that the issues were not properly disposed of on the basis of the evidence produced. The suit was wrongly held - to be barred by time and that Mst. Nanki was not the absolute owner of the suit house and could not alienate the property. The suit was also not barred under the provisions of Sec. 42 of the Specific Relief Act.