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Tara Wanti & Anr. v. Shanti & Anr. - RSA-1979-1997 [2006] RD-P&H 5194 (3 August 2006)



R.S.A. No.1979 of 1997

Date of decision: 17.08.2006

Tara Wanti and another.

............... Appellants


Shanti and another.

................ Respondents

CORAM : Hon'ble Mr.Justice Mahesh Grover

Present: None for the appellants.

None for the respondents.


Mahesh Grover,J.

This is the defendants' appeal filed in the year 1997. It has been called out twice, but no one came present on behalf of the parties.

Since the matter is old, it is being taken up for decision.

Smt.Shanti, present respondent no.1, filed a suit for declaration to the effect that she was owner in possession of the land which had been fully detailed in the head note of the plaint. It was pleaded that one Harpat was owner in possession of this property to the extent of 1/4th share and he

died leaving behind him respondent no.1 as the sole legal heir.

Consequently, she inherited this property and continues to be the owner in possession of the same. It was further pleaded that respondent no.1 had obtained the copy of the jamabandi with an intention to sell her share and it was at that time, that she came to know that after the death of Harpat, Karma had got a mutation sanctioned in his name in respect of this property and thereafter, it was sanctioned in the name of Chunni and after her death, it was sanctioned in the names of the appellants i.e. Tarawati and Thambu.

It was in this background that respondent no.1 sought a declaration to the effect indicated above.

The appellants, who were defendants nos. 1 and 2, filed joint written statement and denied the allegations of respondent no.1. It was pleaded that Harpat had no issue at the time of his death and, therefore, his share was rightly mutated in favour of Karma and after his death, in favour of Chunni and thereafter, in favour of the appellants.

On the pleadings of the parties, the following issues were framed by the trial Court:-

1. Whether the defendants No.1 and 2 have become owners of the land in dispute by adverse possession?OPD

2. Whether the plaintiff is the daughter of Harpat?OPP

3. Whether the plaintiff has no locus standi to file the present suit?OPD

4. Whether the suit is not maintainable in the present form?OPD

5. Relief. After affording opportunities to the parties to lead their oral as well as documentary evidence, the trial Court decreed the suit of respondent no.1 and in appeal filed by the appellants, the findings recorded by it were affirmed by the lower Appellate Court. The cross objections filed by respondent no.1 were accepted.

This appeal has been filed by the defendants feeling aggrieved by the findings recorded by the Courts below.

Before parting with the facts of the case, it may be mentioned here that earlier when the suit of the plaintiff was decreed, an appeal was filed and the lower Appellate Court, vide its judgment dated 27.5.1993, allowed the application under Order 6 Rule 17 of the Code of Civil Procedure moved by the appellants for amendment of the written statement subject to payment of Rs.1000/- as costs and had set aside judgment and decree dated 30.11.1988 passed by the trial Court and had remanded the case to it for re-trial after taking into consideration the amended written statement whereby the question of the suit being hopelessly time barred and the question whether respondent no.1 had no right to inherit the estate of Harpat on account of the fact that the parties were governed by custom were raised.

Aggrieved by the judgment dated 27.5.1993, respondent no.1 had filed S.A.O. before this Court. Vide order dated 3.11.1993, a learned Single Judge set aside judgment dated 27.5.1993 and directed that the appeal would remain pending before the lower Appellate Court, but a report would be asked for from the trial Court on the issues which may have arisen after the amendment of the written statement. In the light of the order dated 3.11.1993 of this Court, the lower Appellate Court, vide its order dated 18.10.1994, framed the following additional issues and called for a report from the trial Court on the same:-

4-A. Whether the suit is within limitation?OPP 4-B. Whether the parties are governed by customary law? If so, to what effect?OPD

4-C. Whether the property in dispute is ancestral property, if so, to what effect?OPD

4-D. Whether the suit is collusive?OPD

Respondent no.1 thereafter moved application dated 6.12.1994 seeking deletion of issues nos. 4-A, 4-C and 4-D with the averments that issues nos. 4-C and 4-D did not arise from the amended written statement where the question of limitation was raised and issue no.4-A already stood dealt with by the trial Court in paragraph 11 of earlier judgment dated 30.11.1993. The said application was dismissed by the lower Appellate Court vide order dated 18.12.1995. Upon this, respondent no.1 preferred Civil Revision No.181 of 1996 before this Court and the said revision petition was dismissed vide order dated 9.5.1996. The trial Court thereafter submitted its report dated 3.3.1997 on issues nos. 4-A to 4-D.

Objections were filed to the report of the trial Court by respondent no.1 challenging the findings recorded therein as being incorrect and against facts. Thereafter, the appeal of the appellants was dismissed and the cross objections of respondent no.1 were allowed.

The appellants had claimed the property in question on the ground that they were related to Harpat and it was pleaded that when Harpat had died, he was issueless. However, both the Courts below have conclusively held by relying upon the birth certificate Exhibit P1 which shows that a daughter was born to Harpat son of Amru on 24.7.1944. This document is more than 30 years old and its veracity could not be shaken by the appellants. Both the Courts have, therefore, rightly come to the conclusion that respondent no.1 was the daughter of Harpat.

The next question which requires determination is whether the suit land was ancestral as it would have ultimate bearing on the facts of the case. The lower Appellate Court had come to the conclusion that the property was not ancestral. As per the jamabandi for the year 1863, which is part of Excerpt EX-DW4/1, the common ancestor of the parties was Assa, who possessed only 11 Bighas 7 Biswas of land which was equivalent to approximately 2 acres of land. Subsequent jamabandis for the period ranging from 1863 to 1885 showed four sons of Assa as having holdings of 34 bighas (equivalent to approximately 7 acres) and in the jamabandis for the years 1890-91, 1893-94, 1897-98, 1901-02, 1905-06 and 1909-10, the land possessed by various persons i.e. sons of Asha came to be 74 Bighas 7 Biswas (equivalent to approximately 15 acres). The jamabandi for the year 1909-10 also revealed that in addition to khasra no. 248 which was subsequently partitioned into two portions, khasra no.247 had also come into existence qua which new khasra nos. 1171 and 1172 were allotted, whereas new khasra nos. 1195 and 1196 were allotted in place of khasra no.248. This and other evidence regarding holdings of these persons showed that the land is mixed up and that it cannot be said that which is ancestral and which is non-ancestral and the portions cannot be separated.

In view of this, the finding of the lower Appellate Court that the land in dispute is non-ancestral cannot be faulted as there is no evidence to substantiate the claim of the appellants.

The next question which is to be determined is as to whether the land in dispute could have been inherited by the appellants to defeat the succession of respondent no.1. The appellants had pleaded custom to say that they were collaterals and,therefore, they were entitled to succeed the estate of Harpat. They had relied upon the pedigree table which is as follows:-



Assa (died in between 1863-85)



Binja Keshru Gordhan Amru


-------------- I I


Mansa,Lekhu Chetu ---------------------------- I I I I

Surja Dei Chand Karma Harpat

(Widow) (Deft.No.3) I I

Chuni(widow) Shanti

I (Plaintiff)




Ram Piari Tarawati

I (Deft.No.1)



Prior to the coming into force of the Hindu Succession Act,1956 (for short, `the Act'), the Mitakshara School regarding succession, which was prevalent in northern India, recognised two modes of devolution of property,namely, survivorship and succession. The daughter was entitled to inherit the estate of her father upon his death. Once this is established that respondent no.1 was the daughter of deceased-Harpat, she was entitled to succeed to the estate of her father and the collaterals had no right to succeed over and above her rights.

A perusal of the record shows that the estate of deceased- Harpat became open to succession on his death on 5.4.1948. Harpat was survived by 4 years old girl, i.e. respondent no.1. Mutation of inheritance of the estate of Harpat was entered in favour of his brother Karma and not in favour of his daughter i.e. respondent no.1. EX-D1 was sanctioned in favour of Karma on 3.6.1948 and it is this mutation which has been challenged by respondent no.1. Subsequently, vide EX.D2, the estate of Karma, who died on 5.5.1949, devolved upon his wife-Chunni. 1/4th share

of Karma was mutated in her favour on 14.6.1951. After the death of Chunni around February,1980, mutation Ex.D3 was sanctioned on 1.6.1980 in favour of the appellants. As per Ex.D2, only 1/4th share of Karma was

mutated in favour of Chunni, but after the death of Chunni, share was mutated in favour of the appellants, meaning thereby, 1/4th share of Harpat

was still alive till the death of Chunni.

The earlier jamabandis for the years 1901-02, 1905-06 and 1909-1910, the holdings which was joint between four sons of Assa, namely, Binja, Keshru, Goverdhan and Amru was partitioned whereby Mansa and Lekhu sons of Binja joined their uncle Goverdhan in cultivating the land measuring 17 Bighas, whereas Chetu son of Keshru and Amru started cultivating remaining share. Joint khewats were also got partitioned. The partition, therefore, of the shares had been effected and ultimately, 1/4th

share of the property came to Harpat son of Amru. Even this fact has been admitted by appellant-Thambu to say that Harpat was the owner to the extent of his share in the suit land.

The appellants had pleaded custom, but not a single piece of evidence was shown by which it could be established that the sole surviving daughter could be excluded from succession and preference could be given to the collaterals instead. The lower Appellate Court has, therefore, rightly appreciated the evidence on record and has held that respondent no.1 was entitled to succeed to the estate of Harpat and that the appellants had no right to the suit property.

In view of the above discussion, the appeal is dismissed and the judgments and decrees of the Courts below are upheld. The suit of respondent no.1 for declaration shall stand decreed to the effect that she is is owner in possession of the land fully described in the head note of the plaint to the extent of 1/4th


August 17,2006 ( Mahesh Grover )

"SCM" Judge


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