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Allahbad High Court
A.K.KIRTY,C.D.PAREKH
Dayali Devi - Appellant
Versus
Captain J.M. Mitra - Respondent
Decided On : 10/19/1972
WILL - Construction - Res judicata - Applicability - Probate - Grant - Effect - Suit for possession - Maintainability - Limitation - Adverse possession - Proof - Burden of proof - Order 41, Rule 33, C.P.C. - Applicability.
Fact of the Case:
The suit was instituted by Dr. J. N. Mitra, in his capacity as the executor of the will of Shamsher Singh dated 14th July, 1944, against Smt. Dayali Devi, widow of the said testator. Shamsher Singh died issueless on January 20, 1946. Under the will, Smt. Dayali Devi was given a right of residence and a life interest in the income from the estate, the management of which was vested in and entrusted to Dr. Mitra, the executor, and after her death the entire estate was to be given to the trustees of the Ram Krishna Mission, Kankhal, Hardwar in trust for founding and maintaining a hospital. The relief sought in the suit was for possession of the properties mentioned in the Schedule appended to the plaint, subject to the rights and interests of Dayali Devi therein. Shamsher Singh's sister, Smt. Dewa Devi was impleaded as defendant No. 2 at her own instance and in pursuance of an application made by her.
Finding of the Court:
1. The findings of the trial court on issues 1 and 2 that the land on which Kothi No. 7 Kutchery Road, Dehradun stands and properties detailed at Nos. 2 to 4 in the Schedule appended to the plaint i.e. shop and two Havelies belonged to Dr. Chandan Singh deceased and were the ancestral properties in the hands of Shamsher Singh deceased and Kothi known as Vishranti detailed at No. 5 in the schedule and the constructions now known as 7, Kutchery road, are self-acquired properties of Shamsher Singh deceased, were not challenged before the court. 2. The finding of the trial court that after the death of Tegh Singh, Shamsher Singh became full owner of half share in the property left by Dr. Chandan Singh, was also not challenged by the learned counsel for the appellants. 3. The judgment and decree of this court dated 21-11-1961 in first appeal No. 605 of 1958 became final even prior to the commencement of the actual hearing of suit No. 31 of 1958. 4. The trial Court recorded categorical findings that Dayali Devi did not acquire any right or interest in Chandan Singh's property under the will and that the testator did not create nor had any intention to create any interest in his property in favour of any of his two daughters. Deva Devi, therefore, acquired no right or interest in the suit properties and, on Teg Singh's death, the surviving son Shamsher Singh acquired full ownership rights in the assets left by Chandan Singh. 5. The findings given against Dayali Devi in First Appeal No. 508 of 1958, as already noted above, are (1) that she did not acquire any interest in the properties in dispute under the will of Dr. Chandan Singh; (2) that she had no legal right to challenge the will of Shamsher Singh dated July 14, 1944; (3) that she had no cause of action to institute the suit (No. 54 of 1952) or to seek any relief against Dr. J. N. Mitra, the executor under the will of Shamsher Singh. These findings were and had to be given on issue arising directly in that case as between Dayali Devi the plaintiff, and Dr. J. N. Mitra, the sole contesting defendant. These findings having become final clearly operated as res judicata in the suit filed by Dr. J. N. Mitra (No. 31 of 1958) which has given rise to this appeal. 6. The findings given by the High Court in its judgment (Ext. 4) dated 21-11-1961 operated as res judicata as against Dayali Devi.
Issues: 1. Whether the property in suit or any portion of it belonged to Chandan Singh? 2. Whether the property in suit or any portion was self-acquired property of Shamsher Singh?
Ratio Decidendi: 1. The judgment and decree of the trial court became final as against Deva Devi and could no longer be questioned by Dayali Devi either in her own right as appellant, or in her right, if any, as the legatee under the alleged will of Deva Devi. 2. The findings given against Dayali Devi in First Appeal No. 508 of 1958, as already noted above, are (1) that she did not acquire any interest in the properties in dispute under the will of Dr. Chandan Singh; (2) that she had no legal right to challenge the will of Shamsher Singh dated July 14, 1944; (3) that she had no cause of action to institute the suit (No. 54 of 1952) or to seek any relief against Dr. J. N. Mitra, the executor under the will of Shamsher Singh. These findings were and had to be given on issue arising directly in that case as between Dayali Devi the plaintiff, and Dr. J. N. Mitra, the sole contesting defendant. These findings having become final clearly operated as res judicata in the suit filed by Dr. J. N. Mitra (No. 31 of 1958) which has given rise to this appeal.
Final Decision: Appeal dismissed with costs.
KIRTY, J. :- Suit No. 31 of 1958, giving rise to this appeal, was instituted on February 1, 1957 by Dr. J. N. Mitra, in his capacity as the executor of the will of Shamsher Singh dated 14th July, 1944, against Smt. Dayali Devi, widow of the said testator. Shamsher Singh died issueless on January 20, 1946. Under the will, Smt. Dayali Devi was given a right of residence and a life interest in the income from the estate, the management of which was vested in and entrusted to Dr. Mitra, the executor, and after her death the entire estate was to be given to the trustees of the Ram Krishna Mission, Kankhal, Hardwar in trust for founding and maintaining a hospital. The relief sought in the suit was for possession of the properties mentioned in the Schedule appended to the plaint, subject to the rights and interests of Dayali Devi therein. Shamsher Singh's sister, Smt. Dewa Devi was impleaded as defendant No. 2 at her own instance and in pursuance of an application made by her. The suit after contest by both the defendants was decreed in toto by the trial court by judgment and decree dated March 27, 1963. The instant appeal was filed by Dayali Devi alone against the plaintiff, in which Deva Devi was arrayed as defendant-respondent No. 2.
2. Deva Devi filed an application for permission to file an appeal in forma pauperis. This application was dismissed on 18-9-1963 and the memorandum of appeal was returned to her under Section 4 of the Court Fees Act by an order dated 17-4-1964. Subsequently she filed a cross-objection which too was dismissed on 24-4-1964 on the grounds that it was barred by limitation and that it was also not legally maintainable. She had also applied for review of the judgment of the trial Court, but her application was dismissed on 18-10-1965. All these orders became final and Deva Devi was left with no legal right to challenge or question the decree passed by the trial court against her individually. It may be mentioned here that in her written statement, she (vide paragraphs 31, 37 and 38 of the additional pleas) had specifically pleaded that under the will of her father Dr. Chandan Singh she became entitled to all the properties in suit to the exclusion of all other persons on the death of her brother Shamsher Singh and that she was in possession of the same in her own independent right and was entitled to so remain in possession. These pleas were repelled by the court below and the suit was decreed for possession against both the defendants.
3. Deva Devi died on 29-11-1966. An application thereafter was filed by Dayali Devi alleging that she was the only heir and legal representative of Deva Devi and praying that the name of the deceased be struck off and a note be made that the appellant herself was the legal representative. This application was disposed of by an order dated 20-12-1967. From a perusal of this order it would appear that before the learned Judge it was stated by Sri K. C. Saksena, learned counsel for Dayali Devi, that the appellant was legatee of Deva Devi under an unregistered will. The assertion was denied by the learned counsel for the plaintiff-respondent. Both the counsel, however, agreed that Deva Devi's name be struck off. The learned Judge ordered her name to be struck off and observed that the question whether Dayali Devi was the legatee of Deva Devi would be determined by the Bench hearing the appeal if necessary.
4. Dayali Devi died on 10-11-1968. Thereupon the application under Order XX, Rule 3, C.P.C. was filed praying that her name be struck off and in her place the names of Sri S. N. Mathur and four other persons, alleged to be legatees under her will dated 8-11-1968, be substituted as her legal representatives. A true copy of the alleged will was annexed to the affidavit filed in support of the application. The application was contested and the alleged will was denied. This application was disposed of by an order dated 4-8-72 and the names of four persons were ordered to b
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