RAO RAJA TEJ SINGH Vs. HASTIMAL

JUDGEMENT

(1.) THE two appeals before me arise out of the judgment and decree of the learned senior Civil Judge No. 1, Jodhpur in a suit under Order 21, Rule 103, Civil procedure Code.

(2.) PLAINTIFF Hastimal and others were the sons of late Shri Mukanchand Balia. Eao raja Panney Singh had mortgaged one 'haveli' known as Haveli of Thikana sanwrad situated at Jodhpur and fully described in para 4 of the plaint, as also some other property for Rs. 28,000/-with Shri Mukanchand Balia by a registered mortgage deed on 14/9/1943. On 21/1/1946, Rao Rafa Panney Singh took a fresh loan of Rs. 7,000. 00 and executed a second mortgage in favour of Shri mukanchand. According to the plaintiffs, this Haveli belonged to Rao Raja Panney Singh and for it he had a patta dated 9/7/1934 in his name as also in the names of his sons Rao Raja Ranveer Singh, Rao Raja Chain Singh, Rao Raja Sukh Singh and Rao Raja Tej Singh, the defendants in the case. Shri Mukanchand obtained a decree for the sale of the mortgaged property from the court of the Senior Civil Judge. The final decree was passed on 30/11/1956. Thereafter, the Haveli was put to auction and the decree-holder Shri Mukanchand himself purchased it and obtained a sale certificate in his favour. After obtaining the sale certificate Shri Mukanchand applied for possession of the Haveli. The court Amin put him in possession of a portion of the Haveli described in para 11 of the plaint, but in respect of the remaining parts of the Haveli, defendant Smt. Swaroop Kanwar widow of Rao Raja Fateh Singh offered resistance. Likewise, Smt. Vijay Kanwar widow of Rao Raja Arjun Singh offered resistance. Accordingly, Shri mukanchand applied to the Court under Order 21, Rule 97, Civil Procedure Code. Both the ladies filed their objections claiming that they were living in the Haveli in their own right. The execution court dismissed Shri Mukanchand's application on 21-4-61. Smt. Vijay Kanwar died after this order was passed. Defendants Nos. 2 to 11, that is, rao Raia Ranveer Singh, Rao Raja Chain Singh, Rao Raja Sukh Singh, Rao Raja tej Singh, Rao Raja Puran Singh, Rao Raja Kalyan Singh, Smt. Padam Kanwar, smt. Ratan Kanwar, Smt. Sajjan Kanwar, Smt. Lichhman Kanwar and Smt. Basant kanwar were made the defendants in the case as legal representatives of Smt. Vijay Kanwar. Shri Mukanchand too had died and accordingly his sons brought the suit under Order 21, Rule 103, Civil Procedure Code for a declaration that the entire Haveli belonged to Rao Raja Panney Singh and that the defendants had no right, title or interest therein.

(3.) DEFENDANT No. 1 Swaroop Kanwar in resisting the suit took the stand that the haveli in question was not known as 'haveli of Sanwrad", but it was purchased by rao Raja Bhawani Singh, her father-in-law and it was known after his name. She further averred that on Sawan Ved 1, Samvat 1967, Rao Raja Bhawani Singh had given half portion of this Haveli to each of his younger sons Kishan Singh and fateh Singh. As Fateh Singh had no son, Smt. Swaroop Kanwar claimed to have succeeded him as his heir. She further stated that by virtue of Section 14 of the hindu Succession Act, 1956 her limited estate in the Haveli as the widow of Fateh singh ripened into fullfledged ownership of the Haveli and consequently the mortgage on which the heirs or Shri Mukhanchand relied or the mortgage decree for that matter were not binding on her. Rao Raja Tej Singh, Rao Raja Sukh Singh, Rao Raja Chain Singh and Rao Raja puran Singh, the four out of five sons of Rao Raja Panney Singh claimed that the half portion of the Haveli belonged to Rao Raja Arjun Singh and on Rao Raja Arjun singh's death his share devolved on his widow Smt. Vijay Kanwar. They proceeded to say that by virtue of Section 14 of the Hindu Succession Act, 1956, the limited estate of Smt. Vijay Kanwar ripened in to fullfledged ownership and thereafter before her death Smt. Vijay Kanwar had gifted her share in the Haveli in favour of these defendants by a registered gift deed. Thus, these defendants did not came into possession of the portion of the Haveli as heirs of Panney Singh, but in their own right as the donees from Smt. Vijay Kanwar.