UNION OF INDIA Vs. MAHENDRA

JUDGEMENT

(1.) THIS appeal has been filed against the order of the learned District Judge,bikaner dated January 21, 1982 by which he has allowed the application of the plaintiff-respondent No. 1 Mahendra moved under 0. XXXIX Rules 1 and 2, C. P. C. and has restrained the defendants from auctioning the immovable properties mentioned in Schedule-ka attached with the plaint and not interfere with the possession of the plaintiff and the defendants no. 6 Chowlal and no. 7. Smt. Meena Devi. The fact of the case giving rise to this appeal may be summarised thus.

(2.) THE paintiff-respondent Mahendra has filed a suit in forma-paupris for declaration and injunction with the allegations, in short, as follows. THE Commissioner of Income Tax-cum-Estate Duty, Jodhpur (defendant-appellant no. 2) for the recovery of the amount of the estate duty payable on the death of Rajkanwari alleging that she died leaving behind her properties mentioned in Schedules (Ka) and (Kha ). She has not left and property. THE desputed properties belonged to the ancestor Ganesh Mal Maloo (father-in-law of Smt. Rajkanwari ). Her husband Dalchand Maloo died near about the year 1917 leaving behind his widow Rajkanwari and daughter Bhanwari Devi died in the year 1941 and Rajkanwari died on June 7, 1957. Rajkanwari adopted his father Chowlal (defendant No. 6) on February 11, 1951 according of late Bhanwari Law, all the properties belonging to late Dalchand vested in his father Chowlal on his adoption. As such Smt. Rajkanwari was not the owner of the disputed properties at the time of her death on June 07,1957 but they belonged and vested to her adopted son Chowlal. THE defendant No. 12 Champalal Bhatia came forward with the case that Smt. Rajkanwari had left a will dated July 05,1951, nominating him as its executor and he applied for probate. This case was dismissed holding that no such will had been left by Smt. Rajkanwari vide order dated September 07,1977 passed in testamentary case No. 2 of 1969 of this Court. It has also been held in this case that Smt. Rajkanwari had adopted Chowlal (defendant No 6 ). Rajkanwari had only right of residence and charge of maintenance against the disputed properites. THE said executor had illegally got an assessment under the Estate Duty Act on January 23,1958 and deposited Rs. 51,674/- despite the fact that no estate duty was payable on the death of Rajkanwari. For the recovery of the balance amount, certificate has been sent to the Collector, Bikaner, Two immovable properties had been auctioned and purched by Kishanlal (defendant No. 4) and Subhkaran (defendant No. 5) and they are taking steps for obtaining their possession. No degendant except the Collector, Bikaner (defedant No. 3) has filed reply to the denied that the desputed properties belonged to the joint Hindu family headed by puted propertied were the self acquried properties of Ganesh Mal, his son Dalchand (husband of Smt. Rajkanwari) died during his life time in Samvat 1975, he (Ganesh Mal) left a will dated June 08,1981 mentioning that Rajkanwari was pregnant at the time of the death of her husvant Dalchand,she gave birth to Kesharichand, posthumously born natural son of Dalchand on PAUSH VADI 1, 1975 all the properties of late Ganes Mal vested in him (Kesharichand ) and he also died in and earily age leaving behind his mother Rajkanwari as his only heir and successor and all the said properites vested in her as their exclusive owner. Rajkanwari did not get any property either form her father-in-law Ganesh Mal or from her husband Dalchand, the doctrine of relation back was no applicable, the assessment order has rightly been passed Under the Estate Duty Act and recovery proceedings have righly been taken against the disputed properties.

(3.) CONSEQUENTLY, the appeal dismissed. The order of the learned District Judge, Bikaner dated January 21, 1982 is confirmed with the modification that the Plaintiff - respondent and the defendants No; 6 & 7 will not transfer in any manner of the disputed properties till the final disposal of the suit. .