Rajasthan High Court - Jodhpur
S.B. Civil First Appeal No.70/1982 vs . on 26 March, 2014
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
S.B. CIVIL FIRST APPEAL NO.70/1982
Smt. Umrao Devi alias Amrao Devi & Ors.
vs.
Hulas Mal & Anr.
Date of Judgment :: 26th March,2014
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Dr. A.A. Bhansali, for the appellants.
Mr. D.R. Bhandari, for the respondents.
----
BY THE COURT:
This first appeal is directed against the judgment and decree dated 19.04.1982 passed by District Judge, Balotra, whereby, the suit filed by the respondents for declaration, injunction, possession and mesne profit has been partly decreed. The respondents-plaintiffs have preferred cross-objections under Order XLI, Rule 22 CPC to the extent the trial court has declined the relief to them.
At the outset, it may be noticed that appellant No.1 has been described as Smt. Amrao Devi in the plaint; she has signed the written statement as Smt. Amrao Devi; in the statement as DW-1 she has been named as Umrao Devi but signed the same as Amrao Devi; in the title of the impugned judgment she has been described as Smt. Amrao Devi. However, the present first appeal has been filed indicating her in the title as Smt. Umrao Devi, however, the Vakalatnama has been signed as Amrao Devi, as such in the body of judgment the appellant No.1 has 2 been indicated as Smt. Amrao Devi and in the title as Smt. Umrao Devi alias Amrao Devi.
The facts in brief may be noticed thus : plaintiffs Hulas Mal and Manoj Kumar S/o Hulas Mal filed a suit on 04.02.1977 claiming that the plaintiffs were members of Hindu undivided family; the defendants were also members of Hindu undivided family; in Ward No.6, village Jasol a house alongwith Bada No.619 was situated, regarding which, boundaries were indicated; the said property belong to the ancestors of plaintiff No.1 and was in his possession; the family tree was indicated to show that the principal person was Jalaji, he had two sons - Suraj Mal and Birdhi Chand, Suraj Mal had two sons Pratap Mal and Ashu Ji, Ashu Ji went in adoption to Bridhi Chand, Pratap Mal had one son - Multan Mal and the plaintiff was adopted by said Multan Mal, Ashu Ji who had went in adoption to Bridhi Chand had a wife Pyari and they died issue-less; it was claimed that before 1956 Ashu Ji and Multan Mal Ji died and plaintiff No.1 was adopted by Multan Mal Ji on 25.10.1952 according to custom and a written adoption deed was prepared and the same was got registered; Ashu Ji had died before Multan Mal Ji and Multan Mal Ji died in the year 1954 and, therefore, the plaintiff No.1 remained the sole owner of the said house alongwith Bada and the same was in his possession; it was claimed that on 11.12.1954 the plaintiff No.1's mother and widow to Multan Mal Ji - Smt. Pepi filed application under Section 10 of the Guardians and Wards Act alongwith a list of properties of Multam Mal Ji claiming the plaintiff to be the sole owner and being minor for her appointment as guardian; the suit property was indicated at 3 Item No.2; no objection was filed by anyone and ultimately by judgment and decree dated 30.04.1958 as plaintiff was 17 years of age, the Court finding the plaintiff as capable of looking after the properties left by Multan Mal Ji dismissed the application; it was further claimed that the neighbours from time to time produced maps etc. and on 29.11.1973 Chhagan Lal Kewal Chand etc. sold their land to Dungar Chand Rai Chand, wherein, it was indicated that the suit property was of plaintiff's ownership; on 19.06.1976 Gram Panchayat issued a certificate, based on which, the plaintiff applied for Patta in his name of the house, when for the first time defendant No.1 raised objection, which was rejected on 05.09.1976, which was appealed against by defendant No.1 and stay was granted; the defendants had no right, title or interest in the suit property; however, with an intention to usurp the said property, on 24.10.1976 the doors were broken open and the defendants unauthorizedly occupied the suit property, regarding which, the proceedings were pending; it was further submitted that in the appeal defendant No.2 Smt. Amrao Devi claimed that the suit property belong to Smt. Pyari wife of Ashu Ji; when in fact Ashu Ji had died several years prior to 1956 and Pyari had no right in the said property; Pyari also died on 30.12.1965; ultimately declaration was sought that the plaintiff alone was the owner of the suit property, possession of the same from the defendants and mesne profit @ Rs.300/- per month.
A written statement was filed by Smt. Amrao Devi; it was claimed that the suit property was defendants' personal property and the plaintiff had no right, title or interest either in the past or 4 in the present; the claim of the property being ancestral was denied; it was objected that the plaintiff has deliberately not impleaded all the legal representatives of Multan Mal Ji, in fact defendant No.1 was daughter of Multan Mal Ji and Pepi widow of Multan Mal Ji was alive and was a necessary party; Ashu Ji had died in Samwat year 1974 (1917 AD); it was denied that Multan Mal Ji adopted plaintiff No.1 according to law on 25.10.1952; knowledge about registration of adoption deed was denied; the proceedings under Section 10 of the Guardians and Wards Act were also denied and it was stated that even if the list in the said proceedings contained the suit property, the same cannot confer title on the plaintiff; the boundaries by the neighbours were mala fidely indicated showing the property as that of the plaintiff; the validity of certificate issued by Gram Panchayat dated 19.06.1976 was denied; further the allegations regarding trespass were denied and it was claimed that the defendants were in peaceful possession for over 12 years and the plaintiffs were never in possession; the property belong to Smt. Pyari widow of Ashu Ji, who had executed her last Will dated 18.06.1964 and bequeathed the said property to Smt. Amrao Devi; Smt. Pyari died on 30.12.1965 and ever since, the defendant No.1 was in possession; it was claimed that the disputed Bada belong to Mst. Pyari, who was the sole owner; the disputed property was owned by Birdhi Chand S/o Shri Jala Ji, which was received by Ashu Ji on going on adoption to Birdhi Chand and on account of his (Ashu Ji) going in adoption his family was separate from that of Pratap Mal; the property was of the sole ownership of Birdhi Chand and his son Ashu Ji and, 5 therefore, Multam Mal and his father Pratap Mal or Suraj Mal had no right in the said property; the said Pyari was in possession of the suit property through out her life and on coming into force of the Hindu Succession Act, 1956 ('the HS Act') she became full owner and exercising that right, she executed the Will dated 18.06.1964 and, therefore, defendant was rightly in possession of the suit property.
In the additional pleas, it was submitted that the suit was time barred; the property never remained in plaintiffs' possession as during the life time of Birdhi Chand, the property came in his share and on his death the same was received by Ashu Ji and after his death his widow Pyari remained in possession and on coming into force of the HS Act, she became full owner and executed the Will on 18.06.1964 in favour of the defendants and died on 30.12.1965 and the defendant was in possession of the suit property; the defendant was natural heir of Mst. Pyari, as on the date of her death, her legal heirs were Pepi widow of Multam Mal and defendant and property is owned 50% each by Pepi and the defendant; the suit was liable to be dismissed for non-joinder of Smt. Pepi; it was also claimed that Pyari remained in possession for over 47 years from Samwat 1974 to 30.12.1965 till her death without any disturbance as owner within the knowledge of Multan Mal and plaintiff, she had become owner by adverse possession and, therefore, the suit was not maintainable.
A replication was filed by the plaintiff; it was denied that the property was personal property of defendant No.1; the fact of adoption was reiterated; proceedings under the Guardians and 6 Wards Act were reiterated; it was claimed that the certificate by the Gram Panchayat was rightly issued; it was claimed that the suit property was owned by Suraj Mal and Birdhi Chand had no right and consequently Ashu Ji or Pyari had no title to the said property; the Will in favour of defendant No.1 Pyari was claimed as forged; it was claimed that the receipts dated 14.03.1972 and notice dated 22.01.1972 have been issued in the name of Pyari Devi, regarding which, the amount has been deposited by Prem Chand, if the Will was in existence they would have disputed the same; it was also claimed that before Samwat 1966 Suraj Mal Ji and Birdhi Mal Ji had separated, therefore, qua the property belonging to Suraj Mal Ji, Birdhi Chand Ji or Ashu Ji had no right; as Smt. Pepi has no right in the property, she was not a necessary party.
The trial court framed 11 issues, which read as under:-
"1. आय व द मतवफ मलत नमलज क ग द पत ह?
2. आय ववव दगसत ब ड व मक न मतवफ मलत नज क ममल कयत क थ लजसस" व द गण उसक" म मलक ह?
3. आय ददन &क 24.10.76 क पततव द गण न" ब ड व मक न मतन ज पर अन ध,क-त कबज ककय व स म न उठ कर ल"
गय"?
4. आय मलत नज क ब"व प"प द" व जरर फर क मकदम ह?
5. आय मसम त पय र ब"व आसज क" श मत उमर व द" व व मसम त प"प द" व ब"व मलत नज व ररश ह?
6. आय ववव दगसत ब ड व मक न मसम त पय र ब"व आसज क ममल कयत क थ ?
7. आय ददन &क 18.6.64 क मसम त पय र ब"व आसज न"
ववव दगसत मक न मसम त उमर व द" व क वस यत ककय ?
8. आय मसम त पय र ब"व आसज मक न व न हर मतन ज पर बत6र तन ह म मलक क" दहनद सकस"शन एक: फ स; म< अभ तक क बबज रह लजसस" वह मक न क म मलक बन गय ?
7
9. आय मक न क म हव र ककर य रपय" 100/- क" दहस ब स"
व द गण म"नस प कफ: प प करन" क" अध,क र ह?
10. आय मसम त पय र ब"व आसज क मक न व न6हर मतन ज पर हक मख लप न प प ह गय थ त उसक द व पर कय असर ह?
11. द दरस ?"
On behalf of the plaintiff eight witnesses were examined and documentary evidence was produced. On behalf of the defendants also eight witnesses were produced.
After hearing the parties, the trial court came to the conclusion that plaintiff Hulas Mal was adopted son of Multan Mal Ji. Issue Nos. 2, 6, 8 and 10 were decided together and the trial court came to the conclusion that Pyari Devi was in possession of the suit property and Multan Mal or Hulas Mal were never in actual possession of the suit property, regarding the title, there was no specific evidence by the plaintiff and, therefore, issue Nos. 2 and 6 were decided against the plaintiff. Issue Nos. 8 and 10 were decided in the manner that when the HS Act came into force Smt. Pyari became owner of the said property and issue No.10 relating to adverse possession of Pyari was also held in favour of the defendants. Issue No.3 was decided against the plaintiff and it was held that Pyari Devi and Pepi Devi started living together and Pyari Devi and Amrao Devi also lived together; Will executed by Pyari Devi in favour of defendant Amrao Devi was held to be suspicious and the issue was decided against the defendants. The issue regarding presence of Pepi Devi was not pressed. It was held that under Section 15 of the HS Act, it was only Hulas Mal and Amrao Devi, who can be said 8 to be the heirs of Pyari Devi. The plaintiff was not entitled for any mesne profit and it cannot be said that the defendant had become owner by adverse possession as the suit was filed within
12 years from the death of Pyari Devi. Ultimately, the trial court decreed the suit to the extent of declaring half share of the plaintiff in the suit property and the relief regarding permanent injunction and possession was denied, but defendants were directed not to alter the suit property without seeking permission from the plaintiffs. It was further directed that the plaintiff may file a suit for partition and thereafter he would be entitled to seek actual possession. Further, the relief regarding mesne profit was rejected.
It was submitted by learned counsel for the appellant that the trial court erred in law in partly decreeing the suit of the plaintiff and passing the declaratory decree; the trial court gravely erred in coming to the conclusion that the plaintiff was legally adopted son of Multan Mal as there was no evidence regarding valid adoption and the conditions as required were not fulfilled; the reliance placed on Exhibit-1, the adoption deed was wholly erroneous, Smt. Pepi Devi was not produced as witness; the Will (Exhibit-A/1) was wrongly held to be suspicious; as Pyari Devi had executed a Will there was no question of applying provisions of Section 15 of the HS Act; the suit as filed was found to be not proved, but the trial court by applying provisions of Section 15 of the HS Act has made out a new case for the plaintiff. It was claimed that the share of plaintiff cannot be said to be half even if the finding recorded by the trial court is upheld as Pyari Devi's successors were plaintiff, defendant No.1 and 9 Pepi Devi and, therefore, all of them would have 1/3rd share in the suit property.
Reliance was placed on Tara Kumari v. Chaturbhuj Narayan Singh & Ors. : AIR 1915 Privy Council 30, Amrit Narayan Singh v. Gaya Singh & Ors. : AIR 1917 Privy Council 95, Lala Duni Chand & Ors. v. Mt. Anar Kali & Ors. : AIR 1946 Privy Council 173 and Chhaterpati Pratap Bahadur Sahi & Ors. v. Lachmidhar Prasad Singh & Ors. : AIR 1946 Privy Council 189.
Per contra, learned counsel for the respondent submitted that the adoption by Multan Mal of plaintiff Hulas Mal is proved on record, the Will Exhibit-A/1 is surrounded by suspicious circumstance and, therefore, when admittedly Ashu Ji had died in Samwat year 1974 much before coming into force of the Hindu Women's Right to Property Act, 1937 ('the Act of 1937'), Mst. Pyari had no right in the suit property and the same had already vested in Multan Mal Ji and, therefore, the plaintiff was the sole owner of the said property as he was the sole surviving male member as Multan Mal Ji had died in the year 1954 and plaintiff having been adopted on 25.10.1952. As such, the trial court was not even justified in decreeing the suit to the extent of 50% only. Smt. Pyari Devi was occupying the suit property as a widow of the coparcener and she acquired no right in the property as the property in question was joint and the trial court fell in error in holding otherwise. There was no evidence of partition and the suit property was not owned by Birdhi Chand/ Ashu Ji in their individual capacity. Under Rule 96 of the General Panchayat Rules, it is the occupier of the property who is assessed for house tax and, therefore, merely because Pyari 10 Devi was assessed for house tax, it cannot be said that she was owner of the property. Exhibit-12 the certificate issued by the Gram Panchayat was conclusive proof of plaintiff's ownership. Ultimately, it was submitted that the plaintiffs were entitled to the entire suit property and a decree for possession.
Reliance was placed on Rao Raja Tej Singh v. Hastimal :
1972 RLW 133, Sheokuarbai v. Jeoraj : AIR 1921 Privy Council 77, Eramma v. Veerupana & Ors. : AIR 1966 SC 1879, R.N. Gosain v. Yashpal Dhir : AIR 1993 SC 352, Smt. Raj Rani v. The Chief Settlement Commissioner, Delhi & Ors. : AIR 1984 SC 1234, Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe & Ors. :
AIR 1986 SC 79, Krishtappa v. Ananta Kalappa Jaratakhane & Anr. : AIR 2001 Karnataka 322, Sharad Subramanyan v. Soumi Mazumdar & Ors. : 2006 AIR SCW 2457, Jai Singh & Ors. v.
Gurmej Singh : 2009 AIR SCW 3652 and Likhmi Chand & Ors. v.
Smt. Sukhdevi & Ors. : AIR 1970 Rajasthan 285.
I have considered the rival submissions.
The following issues for determination arise in the present appeal:-
i) Whether plaintiff Hulas Mal was adopted son of Multan Mal?
ii) Whether Pyari Devi W/o Shri Ashu Ji had any right in the suit property?
iii) Whether defendant Amrao Devi has proved execution of Will dated 18.06.1964?
iv) Whether the suit filed by plaintiff Hulas Mal is liable to be decreed in toto?
v) Relif?11
At the outset it would be appropriate to notice the family tree, which is not in dispute (except adoption of Hulas Mal):-
Jaloji | _________________________ | | Bardhichand Suraj Mal | | Ashu Ji (adopted) Pratap Ji Pyari Devi (wife) | Multan Mal Ji (Wife Pepi Devi) | _________________ | | Hulas Mal Amrao Devi (adopted son) (daughter)
i) Whether plaintiff Hulas Mal was adopted son of Multan Mal?
The trial court under the issue No.1 after considering the oral and documentary evidence came to the conclusion that plaintiff Hulas Mal was duly adopted by Multan Mal and the ceremony of giving and taking was duly performed and in view of the fact that over 30 years Pepi Devi and Hulas Mal have been treated as mother and son and have transacted in the said relationship and have been addressed by the relatives with the said relationship, it cannot be said that the essential ceremonies for performing adoption were not performed at the relevant time. On behalf of the plaintiff statements of PW-1 Hulas Mal, PW-2 Mohan Lal, PW-4 Dungar Chand, PW-6 Kewal Chand and PW-7 Hasti Mal were recorded and by way of documentary evidence, registered adoption deed dated 27.10.1952 (Exhibit-
1), plaintiff's marriage invitation dated 15.01.1965 (Exhibit-2) Voters' list (Exhibit-3), application filed by Pepi Devi seeking guardianship before District Court, Balotra dated 11.12.1954 12 (Exhibit-4), post card dated 12.06.1976 written by Gautam Chand S/o Amaro Devi addressing plaintiff as "Mama" (maternal uncle), judgment dated 30.04.1958 by District Court, Balotra on the application filed by Pepi Devi (Exhibit-7) and Will (Exhibit-
A/1) produced by the defendants indicating plaintiff as adopted son of Multan Mal and Pyari Devi's brother-in-law's son. It was submitted by learned counsel for the appellant that despite the so called documentary evidence, the basic requirement regarding the fact of giving in adoption and taking in adoption has not been proved and, therefore, it cannot be said that the plaintiff Hulas Mal was validly adopted.
Learned counsel for the respondent submitted that the overwhelming documentary evidence and conduct of the parties over a period of 30 years is sufficient to prove adoption and the requirement of valid adoption as laid down by Privy Council in the case of Sheokuarbai (supra) in case of Jains has been scrupulously followed.
An analysis of the documentary evidence shows that vide Exhibit-1 adoption deed Multan Mal has indicated adoption of Hulas Mal, who was aged about 10 years on the date of execution of the document i.e. 25.10.1952 registered on 27.10.1952 the document also indicates the consent of his natural father Hasti Mal and undertaking of all the ceremonies. The document contains signatures of six persons as witnesses. PW-7 Hasti Mal the natural father of the plaintiff Hulas Mal appeared in the witness box and proved the document, however, not a word regarding undertaking of ceremonies or absence thereof was put to him in cross-examination. The documents 13 Exhibits-4 to 7 are all documents relating to the application filed by Smt. Pepi Devi seeking guardianship of plaintiff Hulas Mal, wherein, specific averments were made by Pepi Devi indicating adoption; a public notice Exhibit-6 was published in newspaper at the relevant time on 11.01.1955, to which, apparently no objection was filed; it is a different story that the application was rejected by the District Court as it found that Hulas Mal aged 17 was mature enough to look after the interest of the properties and no useful purpose will be served in appointing a guardian.
DW-2 Sohan Lal son of Amrao Devi in his cross-
examination stated as under:-
"म"र" हल समल म म लगत हA कय कक वह मलत नमल क" ग द हA। व द तर मA मAन" महल समल क मलत नमल क" ग द ल"न" क"
तथय क इसमलय" इ&क र ककय हA कक उस समय ग द क रसम नह & हई हA। मA आज उसक मलत नमल क ग दपत म नत हG& इसमलय"
मA उसक म म कहत हG&।"
The contemporary documents pertaining to year 1954 to 1958, the conduct of the parties i.e. the adoptive mother Pepi Devi and Hulas Mal and statement of DW-2 are apparently sufficient to conclude that the plaintiff was duly adopted son of deceased Multan Mal and the objections raised regarding non- performance of ceremonies are apparently baseless. Further, the crucial document Exhibit-A/1 i.e. the Will of Smt. Pyari Devi heavily relied on by the defendant Amarao Devi also describes Hulas Mal as adopted son of Multan Mal, which further negates the plea raised by the defendants.
In view of the above, the finding recorded by the trial court on issue No.1 regarding the fact/validity of plaintiff's adoption does not call for any interference.
14
ii) Whether Pyari Devi W/o Shri Ashu Ji had any right in the suit property?
The contest between the parties, on account of alleged execution of Will by Pyari Devi in favour of defendant Amarao Devi, is regarding right of Pyari Devi in the suit property. The trial court decided issue Nos.2, 6, 8 and 10 and as noticed above came to the conclusion that Pyari Devi was owner of the suit property.
At the outset, it has to be noticed that Ashu Ji husband of Pyari Devi, who was adopted by Birdhi Chand died somewhere around the year 1919, Suraj Mal & Pratap Ji had died earlier and Multan Mal died in the year 1954 (whereafter the application Exhibit-4 was filed on 15.12.1954). While the contention of the plaintiff is that the property in question was part of the joint family property and the same belonged to Jaloji and was not partitioned between Suraj Mal and Birdhi Chand and, therefore, Ashu Ji had no right in the property and Ashu Ji in any case having died in the year 1919 i.e. before the Act of 1937 came into force, Pyari Devi had no right in the suit property, whereas, the contention of the defendants is that property was owned by Birdhi Chand by way of partition and the same was 'widow's estate' and in view of provisions of Section 14 of the HS Act, Pyari Devi was absolute owner of the said property.
It would be noticed that in para 8 of the plaint the plaintiff claimed that Pyari Devi had no right in the suit property, which was specifically contested by the defendants in their written statement under para 8 and it was claimed that Smt. Pyari Devi was sole owner of the said property. It was, inter alia, claimed 15 that family of Ashu Ji was separate from that of Pratap Mal Ji and the disputed property was owned solely by Birdhi Chand and his son Ashu Ji and on coming into force of HS Act she became full owner of the property, which was latter bequeathed by her in favour of Amarao Devi on 18.06.1964.
The replication filed by the plaintiff is quite crucial, wherein, initially the following plea was raised :-
"मतन ज मक न मय ब ड सरजमल ज क ज यद द ह ववरद च&द ज क उसम< क इ हक नह & थ लजसस" आसज G क" ग द चल" ज न"
स" सरजमलज क ज यद द म< बबरद च&दज क य आसज G क
क इ हक नह रहत व इस तरह पय र द" व क भ क इ हक नह &
रहत ।"
However, in reply to additional pleas, the following important assertion was made:-
"व द गर दसत व"ज त स" भ यह ज दहर ह त ह कक स&वत १९६६ क"
पहल" ह सरजमल ज व ववरद च&द ज जद ह चक" थ" लजसस"
सरजमलज क ज यद द ववरद च&द ज य आसरG मज क क ई हक नह & रह ।"
The averments in reply to additional pleas specifically states that before Samwat 1966 Suraj Mal Ji and Birdhi Chand Ji had partitioned and, therefore, in the property of Suraj Mal Ji, Birdhi Chand Ji and Ashu Ji had no right. The said admission in the replication has neither been retracted nor explained by the plaintiff, which is sufficient to come to a conclusion that the property was owned by Birdhi Chand. The said aspect is further fortified from the statement of PW-1 Hulas Mal himself, wherein, he has admitted that Pyari Devi was living separately from Pepi Devi his mother in the suit property and her ज यद द, ल : , र ल etc. were all separate (phrase used in local dialect for indicating partition by metes and bounds); she used to live separately and, therefore, the plaintiff did not sent any money to her; whether 16 she had jewelery etc., he did not know because she used to live separately; Ashu Ji had separated. Part of the statement reads as under:-
"पय र ब ई म"र" वपत मलत नमलज क क क थ । व म"र म त प"प द" व स" अलग रहत थ , द द म & क" स थ म< रहत थ , व इस मक न मतन ज म< पय र ब ई रहत थ , मक न मतन ज क स लसभ &ल प"प द" व व पय र ब ई द नL करत थ , जस ल ग व& म< मसम त पय र ब ई व प"प द" व क ह त प त अलग थ य श ममल म< थ , यम मझ धय न नह &। ग व& म< चनद , ग व& क ओल , मसम त पय र द" व अलग स" द" त ह त , मझ" धय न नह । आसज ववर, च&द ज क" ग द गय" हय" थ","
"पय र ब ई क" ज यद द, ल : , र ल , आद , सभ थ" कय कक वह अलग रहत थ । मगर मक न ब ड उनक" नह थ"। पय र ब ई क"
मरन" क" समय मA यह & पर नह थ , मA क फ ददन ब द म< म लम पड , मA पल" पर नह & पहच सक , ब द म< म लम पडत" ह आ गय ।
ब द म< कभ भ मAन" पय र द" व क" र ल , ग दड" आदद नह & सभ &ल"। पय र द" व क यह ज यद द कह & पर गय"। यह मझ" म लम नह ।
पय र ब ई अलग रहत थ , इसमलए मAन" उनक क ई खरच नह भ"ज , म"र म & न" ददय ह ग त मझ" धय न नह । पय र ब ई मक न मतन ज म< म"र" वपत ज क" समय स" रहत थ , मगर वह म"र"
वपत ज क म & क" स थ म< रहत थ । वपत ज क" म त ज भ अलग रहत" थ", कय कक मक न व ब ड हम र ह न" स" उसम< रहत"
थ"। वपत ज क" गजरन" क" ब द थ ड समय म< वपत ज क" म त ज क द" ह नत ह गय , म"र" द द ज क" द" ह नत क" ब द म< पय र ब ई इस मक न मतन ज म< थ ड" ददन तक रह । ब च म< थ ड" ददन तक म"र म त प"प द" व क" स थ म< रह थ , ककतन" ददनL तक म"र"
म त ज क" स थ म< रह म लम नह । पय र ब ई क" गहन ह त मझ" म लम नह । कय कक व अलग रहत थ , इसमलए मझ" म लम नह । आसज क औरत क" मक न नह ह न" स" य" हम र" मक न म< रहत थ , आसज G हम र" स" अलग ह गय" थ", जब मA ग द आय थ तब भ आसज G क पमQ इस मक न म< रहत थ य नह , पत नह ।"
The defendant Amaro Devi in her cross-examination specifically averred as under:-
"ववव दगसत ज यद द पवG ; म< जल ज क थ जल ज क" द लडक"
सरG जमल व व रद चनद थ" यह ज यद द व रद चनद ज क हई। इस
ववषय म< क ई मलखत ह ग त पत नह । सरG जमल व व रद चनद
क" बन:व ड हआ थ मझ" पत नह & म"र" जनम क" पGव; ह चक
थ"
From the above pleadings and statements of parties, it is apparent that the fact that Birdhi Chand had separated from Suraj Mal and the property in question was in exclusive 17 possession of Birdhi Chand and after his death the same was in possession with Pyari Devi is firmly established. The plea raised by learned counsel for the respondent on the strength of judgment of Hon'ble Supreme Court in the case of Bhagwant P. Sulakhe (supra) that severance of status of joint family has no effect on joint family property and the property continues to be joint until partitioned has no basis in view of the categorical assertion in the pleadings and statements regarding the fact whereby the plaintiff has specifically stated that ज यद द, ल : , र ल of Pyari Devi were separate and defendant has specifically stated in her cross-examination that property had been partitioned.
The plaintiff has based his claim regarding title to the suit property on the certificate dated 19.06.1976 (Exhibit-12) issued by Gram Panchayat, Jasol indicating that the suit property was owned by plaintiff Hulas Mal. The certificate has been issued by one Shankar Lal - Sarpanch, Gram Panchayat, Jasol. The said Shankar Lal was examined as PW-5, who in his cross- examination admitted that he issued the certificate (Exhibit-12) without holding a meeting of the Panchayat, without examining the House Survey Register of the Panchayat, without examining the House Tax Register, without visiting the suit property and based on his personal information. It was further admitted by him that Amrao Devi had filed objection to the issuance of certificate and had filed application indicating that she was in possession of the suit property, however, neither the deponent nor the Panchayat had a look at the suit property. From the statement of PW-5 Shankar Lal, who issued the certificate (Exhibit-12), it is apparent that the said certificate was issued by 18 him beyond exercise of his powers and de hors the record of Panchayat and without even following due procedure, which document cannot confer and/or support the title of the plaintiff.
Besides the above, reliance was placed on certain sale deeds executed in the neighbourhood, wherein, the suit property was indicated that of the plaintiff, such documents by themselves cannot create title and/or prove the possession of the suit property and, therefore, the same does not advance the cause of the plaintiff.
In view of the above discussions, the plea raised by the plaintiff regarding Pyari Devi not having any title regarding the suit property cannot be sustained.
Having come to a conclusion that the property was owned by Birdhi Chand, the question now arises is that what will be the status of his property when Ashu Ji died in the year 1919. Admittedly, Ashu Ji was adopted son of Birdhi Chand and he had no issue and was only survived by his wife Pyari Devi.
Mulla's Principles of Hindu Law, 21st Edition at para 26 states that if a separated Hindu under Mitakhsara dies leaving a widow and a brother, the widow succeeds to the property as his heir, but the widow, being a female does not take the property absolutely, she is entitled only to the income of the property.
Further it has observed in the context of Act of 1937 at page 126 that under the law prior to the Act of 1937, the widow of a person governed by Mitakshara had only a right of maintenance in respect of coparcenery property, in which, the husband has interest. In respect of separate property, left by her husband, she had only the right of maintenance when the 19 husband has left a son, grand-son or a great grand-son. She could inheritate his separate property only in the absence of these immediate heirs. All this was changed and her rights were augmented after coming into force of the Act of 1937.
Hon'ble Supreme Court in Jaisri Sahu v. Rajdewan Dubey & Ors : AIR 1962 SC 83 held and observed as under:-
"When a widow succeeds as heir to her husband, the ownership in the properties, both legal and beneficial, vests in her. She fully represents the estate, the interest of the reversioners therein being only spes successionis. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers is not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law."
The above being the position of law and Pyari Devi being the sole successor of Ashu Ji, she inherited the property as her separate property. With the coming into force of HS Act, 1956, Section 14 (1) also came into force which reads as under:-
"14. Property of a female Hindu to be her absolute property. - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.- In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act."
As held above, the property was 'acquired' by Smt. Pyari Devi before coming into force of the Act and in view of provisions of Section 14(1) of the Act, she became full owner thereof and did not remain a limited owner of the said property. 20
The judgment cited by learned counsel for the respondents in the case of Krishtappa (supra) has no application to the present case as in the said case the widow had adopted a son before coming into force of the Act of 1937 and, as such, it was held in the circumstances of that case that the widow had no right.
In the present case ever since Pyari Devi succeeded to her husband Ashu Ji in the year 1919 till the HS Act came into force in the year 1956 nothing intervened and, therefore, her interest in the property bloomed into full interest.
Similarly, the judgment in the case of Sharad Subramanyan (supra) also has no application to the facts of the present case.
In view of the above discussion, the findings recorded by the trial court regarding the right of Smt. Pyari Devi in the suit property do not call for any interference.
iii) Whether defendant Amrao Devi has proved execution of Will dated 18.06.1964?
The nature and standard of evidence required to prove a Will has been laid down by Hon'ble Supreme Court in Smt. Jaswant Kaur v. Amrit Kaur : (1977) 1 SCC 369 as under:-
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions :-
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one 21 attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
While the defendant Amrao Devi has heavily relied on the Will allegedly executed by Smt. Pyari Devi, the plaintiff has termed the same as fraudulent and surrounded by suspicious circumstances. A look at the Will (Exhibit-A/1) reveals that the same has been executed on a stamp paper of 50nP. The 22 endorsement of the stamp vendor at the back of the stamp paper indicates the user as 'Bakhshishnama' i.e. gift.
The preamble of the Will reads thus:-
"वस यतन म एक म< मस&म त पय र ब ई ब"व आसज ज तत ओसव ल -स ० जस ल व ल आग" आय उमर व द" व ज ज"
पमचनदज ओसव ल स ० जस ल व ल क" हक म< ल ख द" त हUG कक इस-वक म"र आयG कर ब 51 स ल क ह गई ह और म"र" क ई ज य"नद लडक लडक नह ह, तम उमर वद" व म"र" ज"ठGतर"
मलत नमल ज क पत व म"र" नजद क र सत" म< प त ह, तम ह इस वद- अवसथ म< म"र स"व स कर व म"र" ख न" प न" क पबन, करत ह, व हर तरह" स" म"र धय न रखत ह, म"र" ज"ठतर मलत न ज क" हल स मल ग द ह, ज मलत न ज क तम म नकद व ज"वर ल"कर द स वर चल गय ह, व हम" हर तरह" स"
मकदम"ब ज कर पर" सXन करत रहत ह, अत म"र इचZ ह कक म< तमह" कZ अपन तफ; स" द" ऊ"
The preamble, inter alia, indicates that the defendant Amrao Devi is related to the testator as grand-daughter; she looks after her; Hulas Mal is in adoption to Multan Mal, who has taken entire cash, jewellery etc. and has gone to south and is involved in litigation and is harassing her. At the end of the contents, a alleged thumb impression appears, in which, from naked eyes, the ridges etc. are not seen, whereunder, one more thumb impression, which is said to be that of Pepi Devi appears and who is claimed to be an attesting witness. The document is claimed to be in the hand writing of one Badar Mal. Regarding the thumb impression one expert opinion Exhibit-P/8 has been produced indicating that there was no ridges pattern or delta and no ridges are visible.
Under Section 63 of the Indian Succession Act, 1925 a testator can either sign or affix his mark to the Will.
In the present case, it is a specific case of the defendants that executant put her thumb impression and it is not their case that she put her mark on the Will and once the thumb 23 impression cannot be established and, absence whereof, cannot be explained either by the scribe or by the attesting witnesses or by the propounder of the Will, the fundamental requirement of a valid Will is missing. Further, from the evidence of the parties, it is established that there was no litigation between either Hulas Mal and Pyari Devi or Hulas Mal and Pepi Devi in the year 1964 so as to prompt the executant of Will to indicate that Hulas Mal was involved in litigation and was harassing her. The only litigation which arose was the present litigation when the plaintiff sought Patta from the Gram Panchayat and respondent No.1 Amrao Devi raised objection and, therefore, the assertion in the Will in this regards, which apparently is the basis of execution of Will remains wholly unexplained. DW-2 Sohan Lal S/o Amrao Devi, who was about 11 years old at the time of alleged execution of the Will has shown active involvement in the execution of the Will, so much so, he claims that he himself had gone to the stamp vendor alongwith Pyari Devi for purchasing the stamp and that Pyari Devi executed Bakhshishnama (gift deed) in favour of his mother whereafter he has indicated that she executed Will in favour of his mother.
Another important aspect of the matter is that when the defendants raised objection to the grant of Patta to Hulas Mal by Gram Panchayat on 25.07.1976 vide Exhibits-A/5, A/6 and A/7 though a reference was made regarding the execution of Will by Smt. Pyari Devi, it was claimed that the original Will was not available as the same was placed somewhere by Prem Chand Ji, her late husband. DW-2 Sohan Lal stated that the Will could not be traced earlier, which was found later on because his father 24 had placed it somewhere. DW-1 Amrao Devi in her statement deposed that several persons were present at the time of execution of Will, which included the deponent herself, her husband, her children and several of the relatives, whereafter the stamp/Will was handed over to one Narsingh Ji, who after death of Pyari Devi handed it over to her husband. However, the crucial witness said Narsingh Ji, who remained in possession of the Will during the life time of Smt. Pyari was not produced. The another crucial witness Pepi Devi, who also is claimed to be attesting witness and is claimed to have put her thumb impression on the Will was also not produced, regarding whom a specific claim has been made in the evidence that she was staying with the defendant. In the overall circumstances as noticed hereinbefore, the execution of the Will is apparently surrounded by suspicious circumstances, which the defendants having not been able to dispel to the satisfaction of the Court. The most crucial one being that once the alleged thumb impression placed on the Will was apparently a ink blot, why another thumb impression of Mst. Pyari Devi was not obtained? Apparently, as admittedly at the back of the stamp paper, at the time of purchase of stamp paper for Bakhshishnama (gift deed) Pyari Devi had put her thumb impression, the same could have easily led to comparison between the two signatures.
In view of the standard of evidence required to prove a Will as laid down by Hon'ble Supreme Court in the case of Smt. Jaswant Kaur (supra) it cannot be said that the defendants have been able to prove the due execution of a valid Will. 25
iv) Whether the suit filed by plaintiff Hulas Mal is liable to be decreed in toto?
Once the testamentary succession of the suit property, which has been held to be owned by Pyari Devi is ruled out on account of the Will (Exhibit-A/1) being surrounded by suspicious circumstance, the issue relating to intestate succession of Pyari Devi arise.
While the submission of learned counsel for the respondents is that plaintiff is entitled to succeed wholly to the suit property based on submissions that the same was joint, Ashu Ji died pre 1937 etc., the claim of the appellant-defendant is that even if the Will is held to be not proved, Smt. Pepi Devi also would have 1/3rd share and the property would be succeeded 1/3rd each and not half as declared by the trial court.
For coming to a conclusion on the said aspect, certain provisions of the Hindu Succession Act, 1956 need to be noticed:-
"3. Definitions and interpretation. - (1) In this Act, unless the context otherwise requires, -
(a) "agnate" - one person is said to be an "agnate" of another if the two are related by blood or adoption wholly through males;"
"8. General rules of succession in the case of males.
- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter -
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
"12. Order of succession among agnates and cognates. - The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:-26
Rule 1. - Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2. - Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3. - Where neither heirs is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously."
"13. Computation of degrees. - (1) For the purpose of determining the order of succession among agnates or cognates, relationship shall be reckoned from the intestate to the heir in terms of degrees of ascent or degrees of descent or both, as the case may be.
(2) Degrees of ascent and degrees of descent shall be computed inclusive of the intestate.
(3) Every generation constitutes a degree either ascending or descending."
"15. General rules of succession in the case of female Hindus. - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2)Notwithstanding anything contained in sub-section (1), -
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
As held under issue (ii), Pyari Devi was the absolute owner of the suit property. In terms of Section 15 of the HS Act as no one under Section 15(1)(a) i.e. son, daughter or husband was available, under Sub-clause (b) of Section 15(1) of the HS Act, the property would devolve upon the heir of her husband Ashu Ji.
Under Section 8 of the HS Act, the property of a Hindu 27 male dying intestate devolve firstly, upon the heirs, being the relatives specified in class I of the Schedule and secondly, if there is no heir of class I, then upon heirs, being the relatives specified in class II of the Schedule and thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased. In the present case, admittedly none of the class I and class II heirs of deceased Ashu Ji is available and, therefore, the property would devolve upon the 'agnates' of the deceased.
The agnates under Section 3(a) have been defined as a person said to be an agnate of another if the two are related by blood or adoption wholly through males. Further, the order of succession among agnates and cognates has to be determined in accordance with the Rules of preference laid down in Section 12 and the computation of degrees for the purpose of determining the order of succession among agnates or cognates have to be made in accordance with the Section 13 (supra).
As would be noticed from the family tree, which is again reproduced hereunder:-
Jaloji | _________________________ | | Bardhichand Suraj Mal | | Ashu Ji (adopted) Pratap Ji Pyari Devi (wife) | Multan Mal Ji (Wife Pepi Devi) | _________________ | | Hulas Mal Amrao Devi (adopted son) (daughter) It would be seen from the above tree that qua Ashuji, husband of Pyari Devi, the agnates would be the children of Multan Mal Ji i.e. plaintiff Hulas Mal and defendant No.1 Amrao 28 Devi.
Mulla's Principles of Hindu Law, 21st Edition while giving an illustration at page 1154 has placed son and daughter with the same degree of ascent and descent to take simultaneously. The illustration reads as under:-
(i) The competing heirs are two agnates: (a) son's son's son's son: and (b) son's son's son's daughter. There are no degree of ascent and the number of degrees of descent is the same in case of both. Therefore, neither heir is entitled to be preferred under r I or r II and result is that they take simultaneously. Here, both heirs are descendants and stand in the same degrees of descent."
In view of the above, the plaintiff Hulas Mal and defendant Amrao Devi both would be entitled to half share each in the suit property.
So far as the submissions regarding Smt. Pepi Devi's share is concerned, Smt. Pepi Devi being not related by blood to Ashu Ji being wife of Multan Mal Ji does not fall within the definition of agnate and, therefore, she is not entitled to any share in the property of deceased Pyari Devi.
So far as plea of adverse possession by Smt. Amrao Devi is concerned, as per her own assertion, the property was owned by Pyari Devi, she died on 18.06.1964, the defendant has failed to place on record any overt act on her part to claim ownership of the suit property and for first time based on Will vide Exhibits- A/5, A/6 & A/7 she claimed ownership in the year 1976 and the suit was filed on 04.02.1977 as such the plea of adverse possession raised by the defendant is wholly baseless.
As such, the finding of trial court regarding ½ share in the suit property is upheld but for different reasons. 29
v) Relif?
The trial court while decreeing the suit granted declaration that the plaintiff had half share in the suit property and passed injunction against the defendants not to change the nature of the suit property till the property was partitioned, however, did not grant relief of possession and directed the plaintiff to file suit for partition and obtain possession thereafter.
Cross-objections have been filed by the plaintiff, inter alia, questioning the refusal of decree for possession though the claim is that the plaintiff was entitled to decree for possession of the entire house/property.
The trial court refused to grant a decree for possession, inter alia, in view of the fact that no relief for partition was sought. In the present case, there was no question of the plaintiff originally seeking partition and possession because the case of the plaintiff was that entire property was owned by him. Once it was held by the trial court that the property was owned both by Smt. Amrao Devi and the plaintiff to the extent of 50% each, it was appropriate for the said Court to pass a decree for partition as well.
Order VII, Rule 7 CPC reads as follows:-
"7. Relif to be specifically stated. - Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
The provision enables the Court to grant a relief although not specifically prayed for. This is keeping in view the grounds as set out in the plaint and looking at the substance of the 30 matter and not to its form.
The Hon'ble Supreme Court in Hindalco Industries Ltd. v. Union of India & Ors. : 1994 (2) SCC 594 in the context of provision of Order VII, Rule 7 CPC, inter alia, held as follows:-
"7. It is settled law that it is no longer necessary to specifically ask for general or other relief apart from the specific relief asked for. Such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The Court must have regard for all the relief and look at the substance of the matter and not its forms. It is equally settled law that grant of declaring relief is always one of discretion and the Court is not bound to grant the relief merely because it is lawful to do so. Based on the facts and circumstances the Court may on sound and reasonable judicial principles grant such declaration as the facts and circumstances may so warrant. Exercise of discretion is not arbitrary. If the relief asked for is as of right, something is included in his cause of action and if he establishes his cause of action, the Court perhaps has been left with no discretion to refuse the same. But when it is not as of right, then it is one of the exercise of discretion by the Court. In that event the Court may in given circumstances grant which includes 'may refuse' the relief. It is one of exercising judicious direction by the Court."
In the subsequent judgment in Rajendra Tiwary v. Basudeo Prasad : AIR 2002 SC 136, it was further observed as under:-
"14. Where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief. Order VII, Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the Plaintiff in the suit cannot be granted."
In the present case, the plaintiff had filed a suit for possession; he was claiming his right and title to the suit property; the same being unpartitioned and he being the sole surviving male member pre 1956, the suit property was found to have been succeeded by both plaintiff Hulas Mal and defendant Amrao Devi jointly and once such a finding was returned, the plaintiff was entitled to a decree for possession. The relief for 31 partition had necessarily to follow from it being a joint property, the decree of possession alone could not be effective without following it with a decree for partition. However, the trial court fell in error in merely declaring the share and directing the plaintiff to file a separate suit. The substance of the matter had necessitated the passing of the decree for partition and possession although it was not specifically prayed for in the plaint, to that extent case for exercise of power under Order XLI, Rule 31 CPC is made out and the cross-objections filed by the respondents to the said extent deserve to be allowed.
Consequently, while the appeal filed by the appellants is dismissed, the cross-objections filed by the respondents are partly allowed. The decree passed by the trial court is modified and a preliminary decree for partition of the suit property in favour of the plaintiff to the extent of ½ share is passed. The trial court will appoint a Local Commissioner, who will submit his report and the trial court would thereafter pass final decree on the basis of the report of the Local Commissioner and shall proceed to put the parties into possession of the respective portion allotted to each one of the two parties. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-