HIGH COURT OF HIMACHAL PRADESH
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Chowdhry, J.C. -
(1.) This is a second appeal by Mst. Krishni, the plaintiff-respondent Gannun being her deceased husband Tulsi's brother. Tulsi had predeceased his father Kakhu. Kakhu died in 1994 B, and on 26-1-1995, the landed property which had stood recorded in his name was mutated half in the name of Gannun and half in that of Mst. Krishni. On the basis of this record Mst. Krishni applied to the revenue officer in 2004 for partition of her moiety share. This application was resisted by Gannun and, on being so directed by the revenue officer, he filed the present suit against Mst. Krishni on 22-7-2004 for a declaration that the defendant had no right, title or interest in the moiety share which stood recorded in her name and that the plaintiff was entitled to the correction of the Mt. Krishni vs. Gannun (07.01.1952 - HPHC) Page 1 of 7 revenue records by removal of the defendant's name and substitution of his own.
(2.) The plaint allegations were that the parties were governed by the Hindu Law; that Tulsi died as a member of a joint Hindu family consisting of himself & his father Kakhu and brother Gannun (the plaintiff); that the defendant became unchaste after her husband's death; that on the death of Kakhu the entire family property had devolved upon the plaintiff as the sole surviving coparcener and there was no right and interest which could devolve upon the defendant; that her name had been mutated in the revenue records unlawfully and by mistake; that the entire property had been in possession of the plaintiff; and that he had come to know of the wrong entry in the revenue records only during the partition proceedings instituted by the defendant.
(3.) The defendant's written statement, which is a clumsy handiwork of a petition writer, is a rigmarole of repetition and verbosity. The sum and substance of it however was that she traversed the plaint paragraph containing the allegation that the parties were governed by the Hindu Law, and that the property had devolved upon the plaintiff as a sole surviving coparcener on the death of Kakhu. She admitted that a son was born to her after the death of her husband, but she denied that she could for that reason be said to have become unchaste since, she alleged, the plaintiff had seduced her into illicit intimacy with himself in order to deprive her of her rights in the family property. She categorically denied there was illicit intimacy between her and any body else. She pleaded further that the parties, being members of an agricultural tribe, were governed by custom, described by her as Riwaj-i-zamindara, in matters of succession; that she had succeeded to a life interest in the moiety share in suit; that after the estate had vested in her it could not be divested by the subsequent birth of her illegitimate child and she was entitled to remain in possession of the property; that the suit was time barred; that the suit was barred by estoppel because the plaintiff was present when the property was mutated in her favour on the death of Kakhu and he remained quiet thereafter until she applied for partition; that the suit for correction of revenue records was not maintainable; and that it was liable to dismissal with compensatory costs to her under Section 35 A, C. P. Code.;
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