MUKAT LAL Vs. BOARD OF REVENUE FOR RAJASTHAN

JUDGEMENT

(1.) By way of this appeal, the present appellant originally defendant of suit filed by present respondent has challenged the judgment and order of learned Single Judge who has reversed the findings given by the Revenue Appellate Authority as well as Board of Revenue confirmed the order passed by the lower Court by which the court decreed the suit of partition in favour of present respondent.

(2.) The facts giving rise to the present appeal are that the property in dispute which is an agricultural land belong to a common ancestors. As per the case of the parties the following is genealogical table:-Kishan Lal <FRM>JUDGEMENT_202_LAWS(RAJ)11_2017_1.html</FRM> 2. 1 Mangi Lal son of Kishan Lal died in the year 1912 and his son Kanwar Lal remained unmarried. Kanwar Lal executed a Will in favour of Mukat Lal, the defendant on 09.02.1949. Kanwar Lal died in the year 1954. The property devolved upon Mukat Lal, the defendant under the Will of Kanwar Lal. 2. 2 Madho Lal son of Kishan Lal died somewhere in the year 1929-1930 leaving behind his widow Smt.Nand Kanwari Bai. Smt.Nand Kanwari Bai died in the year 1972 leaving behind the plaintiff as adopted son of Madho Lal. Based on the above facts, the plaintiff claimed that he was entitled to the share of Madho Lal in the property of Kishan Lal. 2. 3 The defendant Mukat Lal, on the other hand, denied in the first place that the plaintiff Kailash was adopted son of Smt.Nand Kanwari Bai and Madho Lal. It was also submitted that the last coparcener Kanwar Lal died in the year 1954 leaving behind a Will in favour of Mukat Lal, the defendant and, as such, the coparcenery came to an end in the year 1954 itself and consequently, the plaintiff had no right to claim any share in the property. 2. 4 A few additional facts may also be taken note of. Smt.Nand Kanwari Bai filed a suit in the year 1958 for declaration that the property is a joint Hindu Family Property and that the Will is illegal and that Mukat Lal was entitled to inherit the property by virtue of the aforesaid Will. The aforesaid suit filed by Smt.Nand Kanwari Bai was dismissed by the trial court and it was held that she was entitled to maintenance alone out of the property left behind by Kishan Lal. However, the finding given on issue No.1, as is evident from the document Annexure R-4/9 at page 109 is that the property was held to be Joind Hindu Family Property but Smt.Nand Kanwari Bai was held entitled only to maintenance as in the opinion of the learned Trial Court, the Hindu Women's Right to Property Act being applicable at the time in the State of Bundi, the share which was of her husband passed by survivorship to Kanwar Lal, the sole surviving coparcener. It was held that Kanwar Lal inherited the property subject to the liability of Madho Lal, the husband of Smt.Nand Kanwari Bai and mother of the petitioner herein. 2. 5 Thereafter, in the year 1966, Mukat Lal, the defendant herein, filed a suit for declaration that the judgment and decree dated 21.05.1959 in favour of Smt.Nand Kanwari Bai be declared to be void and binding on him and that the said decree had been obtained by collusion and fraud. By the judgment and decree dated 12.07.1966, the suit filed by Mukat Lal for declaring the decree dated 21.05.1959 passed in favour of Smt.Nand Kanwari Bai to be void was dismissed. However, Mukat Lal being satisfied preferred an appeal before the Senior Civil Judge who allowed the same by judgment dated 09.02.1968 and decreed the suit of Mukat Lal while setting aside the judgment and decree dated 21.05.1959 passed in Civil Suit No.11/1958 in favour of Smt.Nand Kanwari Bai. 2. 6 Smt.Nand Kanwari Bai, the widow of Madho Lal being aggrieved by the aforesaid judgment and decree dated 09.02.1968 preferred a second appeal before the High Court being S.B.Civil Second Appeal No.347/1968. 2. 7 During the pendency of the aforesaid second appeal before the High Court, Smt.Nand Kanwari Bai died in the year 1972, as such, an application came to be filed by thepresent petitioner Kailash Chand stating therein that he is adopted son of Smt.Nand Kanwari Bai having been taken in adoption in the year 1959. The aforesaid application was contested by Mukat Lal, the non-petitioner/defendant herein. Consequently, the matter whether Kailash was the adopted son of Madho Lal and Smt.Nand Kanwari Bai was remitted for inquiry to the learned Munsif (trial court). After the inquiry, the learned Munsif sent his finding along with the record wherein it was recorded that Kailash Chand was the adopted son of Madho Lal. Based upon the above findings, the High Court vide order dated 06.03.1973 ordered after hearing the learned counsel for the parties recorded that "right to sue survives and, therefore, Shri Kailash Chand is entitled to be substituted as legal representative of Smt.Nand Kanwari Bai." It was recorded by the learned Single Judge that he would record the reason in the judgment itself and the case was heard on the merits on the same day and the arguments concluded. The High Court vide judgment dated 20.03.1973 (Annexure R- 4/13) allowed the second appeal and set aside the judgment of the learned Civil Judge dated 09.02.1968. Consequently, the second appeal being allowed the suit filed by Mukat Lal for avoiding the judgment and decree dated 21.05.1959 in Suit No.11/1958 decided in favour of Smt.Nand Kanwari Bai, the mother of the plaintiff/petitioner stood dismissed. 2. 8 It is in this background, as narrated in the plaint (Annexure-1) that the plaintiff filed the present suit on the basis of the above declarations and findings that he being the adopted son of Smt.Nand Kanwari Bai, wife of Madho Lal and Madho Lal being son of Kishan Lal, the property in the hands of Kanwar Lal being a Joint Hindu Family Property, Smt.Nand Kanwari Bai as Widow of Madho Lal had a charge on the same for her right of maintenance and that on coming into force of the Hindu Succession Act in the year 1956, the limited estate of Smt.Nand Kanwari Bai ripened into an absolute estate and, therefore, the petitioner/plaintiff Kailash Chand, being the adopted son, was entitled to one half share in the same irrespective of the fact that Kanwar lal had bequeathed the property to Mukat Lal, the defendant by his Will of 1949. 2. 9 The learned trial court vide its judgment dated 14.12.1983 decreed the suit of the plaintiff holding under issue No.2 that the plaintiff/petitioner Kailash Chand was the adopted son and the property being a Joint Hindu Family Property in the hands of Kanwar Lal, the plaintiff Kailash Chand was entitled to one half share belonging to Madho Lal and Smt.Nand Kanwari Bai. 2. 10 The defendant Mukat Lal being aggrieved by the aforesaid judgment and decree filed an appeal before the Revenue Appellate Authority, Kota. The learned Revenue Appellate Authority by its judgment dated 31.01.1986 reversed the judgment passed by the trial court and allowed the appeal. The learned Revenue Appellate Authority held that as per the judgment and decree of the High Court dated 20.03.1973 passed in the second appeal, Kailash Chand had been found to be adopted son of Smt.Nand Kanwari Bai and Smt.Nand Kanwari Bai was found entitled only to maintenance and that the property having devolved in favour of Mukat Lal in the year 1954, upon the death of Kanwar Lal, by virtue of his Will executed in the year 1949, the plaintiff was entitled to any share as his adoption took place in the year 1959 after devolution of the property on defendant by virtue of Will of Kanwar Lal, the last surviving coparcener, in the year 1954. 2. 11 Being aggrieved by the aforesaid judgment and decree of the learned Revenue Appellate Authority, Kota reversing the judgment and decree of the learned trial court, the plaintiff Kailash Chand, the petitioner herein, preferred a second appeal before the learned Board of Revenue. The learned Board of Revenue by its judgment dated 12.03.1992 dismissed the second appeal filed by the petitioner upholding the judgment and decree dated 31.01.1986 passed by the learned Revenue Appellate Authority and dismissed the suit. 2. 12 Being aggrieved by the aforesaid judgment of learned Board of Revenue as well as of the learned Revenue Appellate Authority, the petitioner has preferred writ petition under Article 226 of the Constitution of India which was allowed by learned Single udge.

(3.) Learned counsel Mr. Maloo submits that non petitioner Kailash Chand filed suit for partition claiming half share in the agriculture land 84 Bighas 12 Biswas and for separate possession - against petitioner Mukatlal. It was stated that Shri Kishan Lal was common ancestor, he had two sons mangilal and Madholal. Mangilal had one son Kanwarlal. It was stated that after death of Kishanlal and Mangilal, Madholal and Kanwarlal were coparceners. Kanwarlal executed will of the property in favour of his adopted son Mukatlal. After death of Kanwarlal his adopted son Mukatlal and Madholal became coparceners and remained in joint possession. He stated that he was adopted son of Shri Madholal. After death of Madholal, his mother Smt. Nand Kanwari Bai filed a suit against Mukatlal for declaration of ownership over the property, possession and for claiming maintenance. In this suit maintenance was granted to her by way of food grain, monthly payment of money and a portion of house for residence. Subsequently Mukatlal filed a suit that the aforesaid decree for maintenance is binding on him due to gross negligence of his guardian ad lite, which was dismissed by trial court, decreed by District Judge which was reversed in second appeal. Shri Madholal died 50 years back hence Shri Kanwarlal became sole surviving coparcener and therefore the entire property vested in him as sole owner. The alleged adoption of the plaintiff by Smt. Nand Kanwari bai in 1959, 30 years after death of her husband, was denied on fact and in law. It was further submitted that Smt. Nand Kanwari bai had no share in the ancestral property and therefore the plaintiff has no right. It was also submitted that earlier Smt. Nand Kanwari bai had filed a suit in 1958 for declaration of ownership on this property and separate possession besides maintenance but it was dismissed so far as declaration and possession is concerned and only maintenance was granted in 1959.