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2004 DIGILAW 770 (PNJ)

Banti (Deceased By L. R. ) v. Darshan Singh (Deceased By L. R. )

2004-07-28

VINEY MITTAL

body2004
Judgment 1. Plaintiff, Smt. Banti, has aproached this Court through the present regular second apppeal. 2. A suit for possession qua 1/3rd of the land measuring 287 kanals 4 marlas was filed by plaintiff, Smt. Banti against the defendants. It was claimed by the plaintiff that Bhana son of Moti was the husband of the plaintiff. It was claimed that Bhana along with Darshan Singh (his son) were coparceners of the suit land. The plaintiff was the wife of Bhana and, as such, each one of them had 1/3rd share in the suit land. Bhana died in the year 1973 at the age of 80 years old. It was claimed that he was not in his senses for the last 3-4 years prior to his death. Since defendants Nos. 1 to 4 were setting up a sale deed dated February 18, 1972 executed by Bhana in their favour for consideration of Rs. 49,700.00 and since defendants Nos. 1 to 3 were setting up a fictitious and bogus Will claimed to have been executed by Bhana in their favour, therefore, the plaintiff claimed that the aforesaid sale deed was without any consideration and was a sham transaction and had never been executed by Bhana in favour of the defendants. She also claimed that no such Will, as was claimed by defendants Nos. 1 to 3 had been executed by Bhana. The plaintiff also challenged the Will set up by defendant No. 5, Ajit Kaur, daughter of Bhana. Claiming that the suit property was ancestral and coparcenary and joint Hindu family property could not have been willed away, both the Wills were challenged by the plaintiff and she claimed that she had 1/3rd share in the suit property along with defendant No. 1. 3. This suit was contested by the defendants. Defendant Nos. 1 and 2 filed a written statement wherein, they challenged the locus standi of the plaintiff to file the suit as well as claimed that the suit filed by the plaintiff was barred by limitation. It was further claimed that the parties were not forming any joint Hindu family nor the property in question was ancestral or coparcenary property but, on the other hand, the parties were governed by custom. The said defendants specifically asserted the validity of the sale deed dated February 18, 1972 whereby Bhana had sold the suit property to them for a consideration of Rs. The said defendants specifically asserted the validity of the sale deed dated February 18, 1972 whereby Bhana had sold the suit property to them for a consideration of Rs. 49,700.00 . It was claimed that the said sale was to the knowledge and with consent of the plaintiff. The said defendants also claimed that they were in possession of the suit property since its purchase. Additionally, it was claimed that the plaintiff had no right to challenge the alienation under the Hindu law as well. The defendants also maintained that Bhana executed a registered Will dated January 5, 1973, registered on January 6, 1973, in favour of the said defendants Nos. 1 to 3, since plaintiff had strained relations with Bhana and was on litigation with him. 4. In her separate written statement, defendant No. 5, almost conceded the claim of the plaintiff but set up a Will dated February 21, 1973 in favour of all the children of Bhana in equal shares. 5. The learned trial Court held that the parties did not constitute any joint Hindu family but the property in question was proved to be ancestral property. It was also held that the parties were governed by Hindu Succession Act. The sale deed dated February 18, 1972, in favour of defendants Nos. 1 to 4 was also held to be without consideration and a sham transaction having been executed with a view to deprive the plaintiff of her legal right. It was further held that since both the parties had failed to produce any Will, as claimed by them, therefore, none of the Wills was held to be proved. On the basis of the aforesaid evidence, the suit filed by the plaintiff was decreed and she was held entitled to 1/6th share in the suit property. 6. The defendants Nos. 1 to 4 challenged the aforesaid judgment and decree of the trial Court by approaching the learned first appellate Court through an appeal. The learned first appellate Court reappraised the entire evidence. On such reappraisal, the learned first appellate Court came to the conclusion that the plaintiff being a female could not have challenged the alienation made by a male owner and, as such, had no locus standi to file the suit challenging the sale deed dated February 18, 1972. The learned first appellate Court reappraised the entire evidence. On such reappraisal, the learned first appellate Court came to the conclusion that the plaintiff being a female could not have challenged the alienation made by a male owner and, as such, had no locus standi to file the suit challenging the sale deed dated February 18, 1972. It was further held that since the plaintiff had filed the present suit on June 13, 1979, challenging the sale deed dated February 18, 1972, when Bhana had even died in the year 1973, therefore, the suit was barred by limitation. Additionally, it was held that the said sale deed was a valid document and it was proved by the defendants that Bhana had sold the said property after receiving consideration of Rs. 49,700.00 which had been paid before the Sub-Registrar. Since the defendants had led additional evidence before the learned first appellate Court and had produced the copies of the judgment Ex. C1 dated March 13, 1980 passed by the Sub Judge, I Class and Ex. C2, copy of the judgment of the learned Additional District Judge wherein the validity of the Will dated January 5, 1973 executed by Bhana had been upheld, therefore, the aforesaid issue was also decided in favour of the defendants. On the basis of the aforesaid findings, the learned first appellate Court allowed the appeal filed by the defendants and after setting aside the judgment and decree of the learned trial Court, the suit filed by the plaintiff was dismissed. 7. The plaintiff has now aproached this Court through the present regular second appeal. 8. I have heard Shri G. S. Grewal, the learned Senior Counsel appearing for the appellant and Ms. Alka Sarin, the learned counsel appearing for the respondents and with their assistance have also gone through the record of the case. 9. Shri G. S. Grewal, the learned Senior Counsel has contested the various findings recorded by the learned first appellate Court. It has been argued by the learned Senior Counsel that the suit filed by the plaintiff could not be termed to be barred by limitation nor the sale deed in favour of the defendants could be held to be a valid document. It has been argued by the learned Senior Counsel that the suit filed by the plaintiff could not be termed to be barred by limitation nor the sale deed in favour of the defendants could be held to be a valid document. According to the learned Senior Counsel the said sale deed dated February 18, 1972 had been executed by Bhana in favour of the defendants merely with a view to deprive the plaintiff of her legal rights and, as such, the learned trial Court had rightly decreed the suit of the plaintiff qua her own share. 10. On the other hand, Ms. Alka Sarin, the learned counsel appearing for the defendant-respondents has argued that the plaintiff, in fact, had no locus standi to challenge the sale deed dated February 18, 1972 executed by Bhana in favour of the defendants inasmuch as the plaintiff being a female had no right to challenge the alienation made by a male land holder on any grounds whatsoever, except the ground of fraud. Since the only grounds taken by the plaintiff to challenge the aforesaid sale deed were the nature of the property and absence of legal necessity, therefore, the learned first appellate Court had rightly held that the plaintiff did not have any locus standi. It has been further argued by the learned counsel that the suit filed by the plaintiff was apparently barred by limitation. Additionally, the learned counsel has defended the findings recorded in favour of the defendants by the learned first appellate Court with regard to the Will dated January 5, 1973. 11. I have given my due consideration to the rival contentions raised by the learned counsel for the parties. I do not find that there is any merit in the present appeal. 12. I have noticed the various pleas raised by the plaintiff in the suit filed by her. The sale deed dated February 18, 1972 has been challenged by the plaintiff on the ground that the property in question was a joint Hindu Family property and was ancestral and coparcenary property. It has further been claimed by the plaintiff that she also had 1/3rd share in the suit property. However, no evidence, whatsoever, has been led by the plaintiff as to how she had any right in the said suit property, which admittedly belonged to Bhana, the deceased husband of the plaintiff. It has further been claimed by the plaintiff that she also had 1/3rd share in the suit property. However, no evidence, whatsoever, has been led by the plaintiff as to how she had any right in the said suit property, which admittedly belonged to Bhana, the deceased husband of the plaintiff. Even if, all the pleas taken by the plaintiff are accepted, still the plaintiff on the face of it has absolutely no locus standi to challenge the sale deed dated February 18, 1972 executed by Bhana in favour of defendants Nos. 1 to 4. Even otherwise, the said sale deed has been found to be for due consideration inasmuch as the entire consideration of Rs. 49,700.00 was paid by the vendees to the vendor before the Sub-Registrar. Thus, the finding recorded by the learned first appellate Court, in this regard, cannot be held to be erroneous in any manner. It is also apparent that the present suit has been filed by the plaintiff on June 13, 1979 challenging the sale deed dated February 18, 1972 on various grounds. Even the vendor, Bhana, had died in the year 1973. Thus, the aforesaid suit filed by the plaintiff has rightly been held to be barred by limitation by the learned first appellate Court. The said finding has not been shown to be erroneous in any manner by the learned counsel for the appellant. 13. It is also apparent from the perusal of the judgment of the learned first appellate Court that the will dated January 5, 1973 (registered on January 6, 1973) executed by Bhana in favour of defendants Nos. 1 to 3 had already been upheld in earlier litigation inter se between the parties. The aforesaid judgments were produced before the learned first apellate Court as Ex. C-1 and Ex. C-2 by way of additional evidence. In view of the aforesaid judgments, the learned first appellate Court was absolutely justified in upholding the validity of the aforesaid Will. In view of the aforesaid Will also, defendants Nos. 1 to 3 would be entitled to succeed to the estate left behind by deceased Bhana to the exclusion of any other heir, including the plaintiff. 14. No other point has been urged. 15. Accordingly, I find that the findings recorded by the learned first appellate Court cannot be held to be erroneous or contrary to the record, in any manner. 16. 14. No other point has been urged. 15. Accordingly, I find that the findings recorded by the learned first appellate Court cannot be held to be erroneous or contrary to the record, in any manner. 16. No question of law, much less any substantial question of law, arises in the present appeal. 17. Accordingly, the present appeal being devoid of any merit, is dismissed. There shall be no order as to costs.