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2006 Supreme(Chh) 362
2006(2) C.G.L.J. 299
HIGH COURT OF CHHATTISGARH, BILASPUR
Hon'ble Shri Sunil Kumar Sinha, J.
GANESH RAM Appellant
Vs.
DHANNULAL & OTHERS Respondents
First Appeal No. 92 of 2001,
Decided on 17-7-2006.
Shri Rajeev Shrivastava. for the Appellant
Shri Parag Kotecha, and Shri Anand Shukla, for the
The main legal point established in the judgment is the application of the principles of adverse possession, marriage presumption, will execution, and sale deed validity in a property dispute.
Headnote:
Adverse Possession - Property Dispute - 15(2)(b) of the Hindu Succession Act - Sections 67, 68, 59, 63 of the Indian Succession Act - Doctrine of Lis Pendens - [FACT OF THE CASE] The plaintiff filed a suit for declaration, possession, and damages in relation to two suit houses. The plaintiff claimed adverse possession and challenged the legality of a sale deed and a will. The defendants claimed that the properties were succeeded by Phoolbasa Bai, the deceased, and that the sale deed and will were valid. [FINDING OF THE COURT] The court found that adverse possession was not established, Phoolbasa Bai was the legally married wife of Chhatrapati, the will was not proved, and the sale deed in favor of defendant no.5 was valid. [ISSUES] Adverse possession, validity of marriage, execution of the will, validity of sale deed, and succession of property. [RATIO DECIDENDI] The court applied the principles of adverse possession, marriage presumption, will execution, and sale deed validity. [FINAL DECISION] The appeal was dismissed, and the judgment and decree passed by the trial Court were confirmed with modifications in the finding regarding the will.
As per Hon'ble Shri Sunil Kumar Sinha, J. :-
1. This appeal is directed against the judgment and decree dated 11.5.200 I passed in Civil Suit No. 16.A/1999 by the District Judge, Rajnandgaon (C.G) whereby the plaintiffs suit for declaration of title, possession and damages has been dismissed.
2. The plaintiff filed a suit for declaration, possession and damages in relation to the two suit houses described in Schedule A & B of the Plaint. He further prayed that the registered sale deed dated 04.11.1987, executed by Phoolbasa Bai (original defendant no. 1 who died during the pendency of the suit) in favour of defendant no.5, which relates to some portion of suit house, be declared illegal, void and not binding on him.
3. The following is the pedigree shown by the plaintiff in para 2 of the plaint :
Shivram
(died in 1932)
I
2006(2) C.G.L.J.
304
IChhatrapati (Son)
(died in 1945)
. I
Phoolbasa Sai (kept) dfd. no. I
I
Mannulal son)
(died unmarried on 14-4-1967)
(
Ganeshram (son) (Plaintiff)
Shyamlal (son) Radhabai
(died in 1973) (daughter)
~~--I--~I
Laxmibai Gangabai
(daughter) (daughter)
4. According to the plaint allegations the suit properties were the self acquired properties of Shiv Ram, who died in the year 1932. He was having two issues namely Sumitra Sai (daughter) and Chhatrapati (son). Sumitra Sai was called by Shiv Ram to live in his house and she was through out residing with her father and was looking after his properties. The further allegations are that Phoolbasa Sai, the original defendant no. I was not the married wife of Chhatrapati as she was living as a concubine alongwith him because his married wife had left his company. The son born out of relations of Chhatrapati and Phoolbasa Sai anmely Mannulal died unmarried on 14.4.1967. Chhatrapati also died in the year 1945. From the wedlock of Sumitra Sai and her husband, there were two issues namely Shyamlal and Radha Sai. The plaintiff is son of Shyamlal and there are also three daughters of Shyamlal who are shown in the pedigree. The plaintiff mainly based his claim on the ground that since Sumitra Sai was called by her father, and was through out living alongwith him till his death in the year 1932 and was in exclusive possession of the suit houses even after 1932 till the year 1976 (till her death), she has perfected her title by way of adverse possession excluding right and interest of all other successors if any. About Phoolbasa Sai, he based his claim on the ground that she was not the validly married wife of Chhatrapati therefore the was having no right of interest in the suit properties
It was further pleaded that Phoolbasa Bai executed a sale deed of certain portion of suit property in favour of defendant no.5 on 04.11.1987 i.e., during the pendency of the suit, therefore, the said sale deed would be void, inoperative and not binding on the plaintiff as Phoolbasa Bai was having no right or authority to execute such a document because she was not the owner of the property. More over, this document shall be subject to decision of the rights and ownership of Phoolbasa Bai as the same was executed during the pendency of the suit. After disclosure of the fact in the joint written statement about a will deed dated 18.8.1977, said to have been executed by Phoolbasa Bai in favour of respondents no, 1 to 4 it was pleaded by the plaintiff that the said will deed was a fraudulent document. He challenged the legality of will on many grounds including the right and authority of the executant to execute such a document.
5. Firstly the original defe!1dants namely Phoolbasa Bai and Gaya Prasad filed their joint written statement in which, after a formal denial of facts pleaded in plaint, their simple contention was that Shiv Ram, who died in the year 1932, left behind two issues namely Sumitra and Chhatrapati, Sumitra Bai was a married daughter. After the death of Shiv Ram in the year 1932, the entire property was succeeded by Chhatrapati (his only son). Phoo
