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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Hon'ble Judges: Kuldip Singh, J.
Anil Mahajan and Ors. – Appellants
Vs.
Savitri Chaudhary and Ors. – Respondent
RSA No. 42 of 2000
Decided On: 11.11.2010
Will - Property Dispute - Indian Succession Act, Hindu Succession Act - The court discussed the validity of the Will dated 28.4.1964 and the family settlement dated 30.7.1983. The court found the Will and family settlement to be illegal and not binding on the respondent. The court also considered adverse possession and the share of the respondent in the property left by Shiv Ram Mahajan.
Fact of the Case:
The Respondent No. 1 filed a suit for declaration regarding property inherited from her father. The suit was contested by the Appellants, who claimed ownership based on a Will and family settlement. The trial court decreed the suit in favor of the Respondent No. 1, declaring her as the owner of 1/9th share in the property. The Appellants appealed the decision.
Finding of the Court:
The court found the Will and family settlement to be illegal and not binding on the respondent. It also held that the Appellants failed to prove adverse possession and that the respondent was entitled to 1/9th share in the property.
Issues: The issues included the validity of the Will and family settlement, adverse possession, and the share of the respondent in the property.
Ratio Decidendi: The court found that the Will and family settlement were not valid and binding on the respondent. It also held that the Appellants failed to prove adverse possession and that the respondent was entitled to 1/9th share in the property.
Final Decision: The appeal was dismissed, and the court upheld the trial court's decision in favor of the Respondent No. 1.
Kuldip Singh, J.
1. The Appellants are the successors-in-interest of Defendant No. 1 and have assailed judgment, decree dated 24.9.1999 passed by learned District Judge, Chamba in Civil Appeal No. 45 of 1994, affirming judgment, decree dated 8.8.1994 passed by learned Senior Sub Judge, Chamba in Civil Suit No. 13 of 1987 ( Dalhousie Court).
2. The Respondent No. 1 had filed a suit for declaration regarding property described in the plaint situate at Dalhousie, Tehsil Bhattiyat, District Chamba on the averments that her father Shiv Ram whether reporters of Local Papers may be allowed to see the Judgment?
Mahajan was owner in possession of suit property. He died on 1.4.1969 and after his death the suit property has been inherited by the parties and their mother Smt. Raj Kumari widow of Shiv Ram Mahajan. It has been pleaded that Smt. Raj Kumari had also died intestate on 25.10.1985. The Respondent No. 1 has claimed that she is owner in possession of 1/9th share in the suit property.
3. The further case of Respondent No. 1 is that Amrti Lal Mahajan father of Appellants in connivance with Respondents No. 2 and 3 and to deprive other heirs of Shiv Ram Mahajan had executed family settlement dated 30.7.1983 vide which Amrit Lal Mahajan and Respondents No. 2 and 3 to the exclusion of Respondent No. 1 and others had partitioned the suit property amongst themselves. The Respondent No. 1 is not bound by the so called family settlement dated 30.7.1983. Amrit Lal Mahajan and Respondents No. 2,3 had manipulated frivolous entries in the revenue record which are not binding upon Respondent No. 1.
4. It has been alleged that Respondents No. 7,8 on the basis of alleged Will of Smt. Raj Kumari have instituted some probate proceeding in the Delhi High Court. Smt. Raj Kumari was not mentally and physically fit to execute Will in favour of Respondents No. 7 and 8, who have procured Will from Smt. Raj Kumari by practicing fraud and coercion. The Respondent No. 1 is not bound by any Will, if any set up by Respondents No. 7 and 8. On these averments the suit was filed by Respondent No. 1 on 21.3.1987.
5. The suit was contested by Defendant No. 1 Amrit Lal Mahajan, he took preliminary objections of maintainability, estoppel, limitation, non-joinder of necessary parties. It was alleged that Shiv Ram Mahajan, in sound disposing mind on 28.4.1964 had executed a Will of his entire estate in favour of Amrit Lal Mahajan and Respondents No. 2 and 3, as such Respondent No. 1 has no locus standi to file the suit. On merits, he admitted his relationship with Respondent No. 1 and with other Respondents being his brothers and sisters. Shiv Ram Mahajan had died on 1.4.1969.
6. The further case of Amrit Lal Mahajan was that, he alongwith Respondents No. 2,3 was owner in possession of property left by Shiv Ram Mahajan on the basis of Will dated 28.4.1964 of Shiv Ram Mahajan. He denied ownership and possession of Respondent No. 1 on the suit property. He asserted that he and Respondents No. 2,3 had entered into agreements dated 21.4.1970, 28.5.1981 and 30.6.1983 to the knowledge of Respondent No. 1. He had supported the revenue entries.
7. It is also the case of Amrit Lal Mahajan that after the death of his father he had developed some portion of the suit property by spending more than Rs. 4 lacs. Amrit Lal Mahajan had also projected the case that he alongwith Respondents No. 2,3 had been coming in exclusive possession openly, continuously, peacefully and with hostile animus and had acquired adverse possession on the suit property. The Respondent No. 1 has not prayed for further relief of possession and partition, hence the suit is not maintainable. The objection of improper valuation of suit was also taken.
8. The Respondents No. 3 had filed separate written statement and contested the suit and pleaded that Respondent No. 1 has no locus standi to file the suit. It has been alleged that Shiv Ram Mahajan during his life time had given his entire property to Amrit Lal Mah
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