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2014 DIGILAW 772 (MP)

Bhagwati Bai v. Meera Bai

2014-07-08

PRAKASH SHRIVASTAVA

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JUDGMENT 1. This second appeal under section 100 of the CPC is at the instance of the defendants in the suit challenging the concurrent judgment of the two Courts below. The trial Court by judgment dated 30th September, 2000 has decreed the suit filed by the respondent No.1(plaintiff) Meera Bai and the first appellate Court by the judgment dated 28th August, 2004 dismissed the appeal preferred by the appellants. 2. In brief, the respondent No.1 (plaintiff) has filed the suit for declaration and permanent injunction pleading that Mohanlal was the father and Shyama Bai was the mother and Mst. Kari Bai Joje Gulab was the maternal grandmother of the respondent No.1 whereas the respondent No.2 Sohanlal was the paternal uncle of the respondent No.1. The suit properties belonged to Mst. Kari Bai. Kari Bai had executed the will dated 22.4.1983 in favour of the Shyama Bai and Mohanlal. Kari Bai had executed the sale deed dated 30.11.1987 in favour of the respondent No.1. Shyama Bai had died in October, 1988 and Kari Bai had died in 1989. 3. Mohanlal, on the basis of the Will had got his name mutated in the revenue records without the knowledge of respondent No.1 Meera Bai and thereafter Sohanlal had got his name mutated and Sohanlal had sold the land of the respondent No.1 by sale deed dated 13.1.1994 to other respondents. The suit was opposed by the appellants and the other defendants. 4. Both the Courts below have found in favour of the respondent (plaintiff) and the decree has been passed in favour of the respondent No.1 by declaring that by the sale deed dated 13.1.1994 the respondent No.2 had right to sell only 2 ½ acres to the appellant No.1 and, therefore, the sale deed executed by the appellant No.1 to the appellants No.2 and 3 is partly valid only to the extent of 2 ½ acres. 5. Counsel for the appellants submits that no relief of partition and possession was claimed in the plaint yet it has been granted, though the appellants have been found to be co-owners, still the decree of injunction has been passed. 6. I have heard the learned counsel for the appellants on the question of admission and perused the record. 7. 5. Counsel for the appellants submits that no relief of partition and possession was claimed in the plaint yet it has been granted, though the appellants have been found to be co-owners, still the decree of injunction has been passed. 6. I have heard the learned counsel for the appellants on the question of admission and perused the record. 7. The two Courts below have elaborately dealt with the evidence and have rightly reached to the conclusion that the relationship which has been shown by the appellants is not in dispute. They have further found that Mst. Kera Bai W/o Gulab was not the sole heir of deceased Gulab but Shyama Bai daughter of Kera Bai was also one of the heirs of Gulab and she has half share in the property of Gulab, meaning thereby Kera Bai had received only 5 acres in inheritance out of the total 10 acres of the land of Gulab. The sale deed Ex.P-1 executed by Kera Bai in favour of Meera Bai for 6 acres of land was valid only to the extent of her share i.e. only for 5 acres. Therefore, by virtue of the said sale deed, the respondent No.1 had received 5 acres of land. It has further been found that remaining 5 acres had fallen in the share of Shyama Bai. Shyama Bai had died on 19.11.1989 and during her lifetime she had not alienated her share of 5 acres, therefore, in terms of the provisions of Hindu Succession Act, Mohanlal was entitled to alienate 2 ½ acres of land i.e. the half share of Shyama Bai and accordingly Mohanlal could have executed the Will dated 29.11.1989 for that share. The remaining 2 ½ acres was received by respondent No.1 Meera Bai. Hence Sohanlal, by virtue of Will dated 29.11.1989, had received title of only 2 ½ acres. 8. In this view of the matter, the sale deed dated 13.1.1994 is found to be partially valid and Sohanlal has been found entitled to bequeath only 2 ½ acres by Will dated 29.11.1989. These reasonings and findings of the two Courts below have not been questioned by the counsel for the appellants during the course of his arguments on the question of admission of this appeal. 9. These reasonings and findings of the two Courts below have not been questioned by the counsel for the appellants during the course of his arguments on the question of admission of this appeal. 9. In view of these findings, the appellants have rightly been restrained by the trial Court from interfering in the possession of the respondent No.1 on 2 ½ acres of land. The judgment of the two Courts below, in this regard, do no suffer from any error. The appeal does not involve any substantial question of law, which is accordingly dismissed.