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2011 DIGILAW 1504 (HP)

Pritam Singh Thapa v. Pyara Singh Thapa

2011-03-21

DEEPAK GUPTA

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JUDGMENT Deepak Gupta, J. 1. Smt.Basundhari Thapa, mother of the appellant filed a suit seeking a decree for permanent injunction restraining her son from interfering with her possession over the suit property. 2. It is not disputed that the suit property was originally owned by Major Mohabat Singh Thapa, husband of the plaintiff and father of the defendant. Major Mohabat Singh Thapa executed a Will Ext.PW-3/A whereby he bequeathed the residential house and other immovable property to his wife. He however put a rider that his wife would not sell or dispose of the same in her life time and after her death the house and other immovable property belonging to him would go to her two sons or their children. He laid another condition that as far as possible the sons would also not dispose of or sell the property during their life time. Even, in case one of the sons or their children wanted to dispose of the immovable property the same should be sold to the brothers/uncles/cousins on 1/10th of the prevailing market value of the share. The desire of the testator was that his sons and their children should keep the property intact which the testator had inherited from his father and which was the symbol of the family. 3. The suit was decreed by both the Courts below and the appellant-defendant was restrained from interfering in the possession of the plaintiff. During the pendency of this appeal the original plaintiff Smt.Basundhari Thapa expired and her legal heirs are the appellant-defendant and his brother Pyara Singh Thapa and one sister Shyama Devi. 4. In my considered opinion because of the death of Smt.Basundhari Thapa, the appeal has become infructuous and nothing survives in the same. Smt.Basundhari Thapa had only claimed her interest in the suit property and therefore now nothing survives in the entire proceedings. 5. Sh.Rajnish Manikatala, learned counsel for Pyara Singh Thapa and Shyama Devi urges that in terms of Section 14(1) of the Hindu Succession Act Smt.Basundhari Thapa had become full owner of the property and therefore now her property should go to all her legal heirs that is the two sons and daughter in equal shares. 5. Sh.Rajnish Manikatala, learned counsel for Pyara Singh Thapa and Shyama Devi urges that in terms of Section 14(1) of the Hindu Succession Act Smt.Basundhari Thapa had become full owner of the property and therefore now her property should go to all her legal heirs that is the two sons and daughter in equal shares. On the other hand Sh.D.Dadhwal, learned counsel for the appellant submits that Smt.Basundhari Thapa neither transferred the property during her life time nor executed a Will and therefore Will of Major Mohabat Singh Thapa will again have to be enforced and therefore the property can only go to two brothers. 6. I am of the considered view that this dispute between the legal representatives of Smt.Basundhari Thapa cannot be and should not be decided in these proceedings. They will have to file separate proceedings to establish their rights. What is the effect of Section 14 of the Hindu Succession Act and whether the Will of Major Mohabat Singh Thapa can again be enforced are questions which the Court will have to decide afresh on the basis of evidence. The present appeal having become infructuous is disposed of accordingly. 7. It is however made clear that the parties can establish their rights in different proceedings in accordance with law.