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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
P.S. Rana, J.
Smt. Shakuntla Devi widow of Late Sh. Jaswant Rai & others - Appellants/plaintiffs
Versus
Kamla Devi widow of Bhagat Ram - Respondent/defendant
RSA No. 232 of 2010
Decided on: 10th October, 2014
Will - Property Dispute - H.P. Tenancy and Land Reforms Act 1972 - Section 104, Section 113 - The court interpreted the Will regarding bequeathing property and held that the intention of the testator was to exclusively inherit the tenancy rights by one of the sons. The court also discussed the automatic vesting of proprietary rights under the H.P. Tenancy and Land Reforms Act and held that the deceased did not acquire proprietary rights automatically on a certain date due to the bar under Section 104(8) of the Act.
Fact of the Case:
The case involved a property dispute where the plaintiffs sought a declaration that they were joint owners of the suit land based on a Will, and that certain mutations were illegal and void. The defendants claimed that the suit was barred by time and that the deceased had bequeathed the tenanted property exclusively to one of the defendants.
Finding of the Court:
The court found that the intention of the testator, as per the Will, was to exclusively inherit the tenancy rights by one of the sons. The court also held that the deceased did not acquire proprietary rights automatically on a certain date due to the bar under Section 104(8) of the H.P. Tenancy and Land Reforms Act.
Issues: The issues included the joint ownership of the suit land, the legality of certain mutations, estoppel, cause of action, and limitation.
Ratio Decidendi: The court's decision was based on the interpretation of the Will and the application of the H.P. Tenancy and Land Reforms Act, specifically Section 104 and Section 113.
Final Decision: The appeal was dismissed, and the judgment and decree passed by the lower court were affirmed. Each party was left to bear their own costs.
P.S. Rana, J.
Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure by the appellants against the judgment and decree passed by learned District Judge, Una dated 23.3.2010 announced in Civil Appeal No. 89 of 2007/08 titled Shakuntla Devi and others vs. Kamla Devi and Civil Appeal No. 8 of 2007 titled Kamla Devi vs. Shakuntla Devi and others.
2. Brief facts of the case as pleaded are that suit for declaration was filed by deceased Jaswant Rai that suit land was owned by Gurcharan son of Pohlo resident of Mohalla Damdama Una town Tehsil and District Una except the land measuring 22637 being 99/1080 share out of Khasra No. 1304. It is pleaded that deceased Gurcharan executed a registered Will dated 29.6.1990 in sound disposing state of mind and bequeathed his entire property in the names of his four sons including one Malkiat Singh who died without leaving any Class-I heir and his share was succeeded by the parties equally. It is pleaded that Gurcharan Singh died on dated 3.5.1991. It is further pleaded that recital in the Will that tenancy right would be inherited by defendant No.1 is contrary to law. It is further pleaded that tenancy right could not be Willed away. It is further pleaded that mutation Nos. 314 dated 10.1.1992 and 1371 dated 30.4.1994 sanctioned behind deceased plaintiff are null and void and inoperative and have no binding effect upon the right of the deceased plaintiff. It is further pleaded that on the basis of illegal mutation in favour of defendant No. 1, defendant No. 1 threatened deceased plaintiff to take exclusive possession and also threatened to change the nature of suit land. It is also pleaded that time and again defendant No. 1 was requested to admit the claim of deceased plaintiff but defendant No.1 refused to do so. Relief for declaration sought to the effect that parties are joint owners of suit land on the basis of Will dated 29.6.1990 and declaration also sought that mutation No. 314 dated 10.1.1992 and mutation No. 1371 dated 30.4.1994 are illegal, null and void and are inoperative. Consequential relief of injunction also sought. In the alternative relief for possession of suit land also sought.
3. Per contra written statement filed on behalf of contesting defendants No.1 pleaded therein that suit of the plaintiff is barred by time and further pleaded that plaintiff has no cause of action. It is pleaded that plaintiff is estopped by his act and conduct to file the suit. It is pleaded that suit land was possessed by Gurcharan Singh father of the parties as tenant. It is further pleaded that deceased Gurcharan Singh had executed a Will dated 29.6.1990 and bequeathed his entire property in favour of his four sons. It is further pleaded that deceased Gurcharan Singh bequeathed his tenanted property exclusively in favour of defendant No.1. It is further pleaded that defendant No.1 is in exclusive possession of tenanted property as mentioned in the Will. It is further pleaded that mutation had been sanctioned strictly as per contents of Will executed by deceased Gurcharan Singh. Prayer for dismissal of suit sought.
4. Plaintiff filed replication and reiterated his pleadings pleaded in the plaint. As per the pleadings of parties learned trial Court framed following issues on dated 28.2.2003:-
1. Whether plaintiff and defendants are joint owners in possession on the basis of Will dated 29.6.1990, as alleged? OPP
2. Whether the mutation No. 314 dated 10.1.1990 and mutation No. 1371 dated 30.4.1994 are wrong, illegal, null and void, as alleged? OPP
3. Whether the plaintiff is estopped to file this suit by his own acts and conduct? OPD
4. Whether the plaintiff has no cause of action to file this suit? OPD
5. Whether the suit is barred by limitation? OPD
6. Relief.
5. Findings of learned trial Court qua issue Nos. 1 and 2 are partly in yes and partly in no and qua issue Nos. 3, 4 and 5 are in negative. Learned trial Court partly decreed the suit filed by deceased plaintiff through
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