- (1.) This appeal has been filed by Prita and Chandan alias Chander defendants against the judgments and decree of the courts below.
(2.) Brief facts of the suit instituted by two sisters, namely, Kamla alias Lachhmi and Ratni alias Sundri (Dhapi) plaintiffs who are the daughters of Sudha, are that Sudha was the owner of the land, detailed in para I of the plaint, and that on his death the land was inherited by his widow Parmeshwari who performed karewa marriage with Ratia defendant No. 2. After the performance of Karewa she had no connection with the family of Sudha. It was alleged in the suit that the land in dispute was allotted after the consolidation in lieu of the previous, holdings. The plaintiffs claimed the ownership of the disputed land on the ground that they being the daughters are entitled to inherit the suit land left by their father and that their mother was not entitled to the same as she had performed karewa marriage with Ratia and that the subsequent mutations in favour of respondent Nos. 1 to 3 were void, and illegal. Defendant No. 2 did not appear and was proceeded ex-parte. Defendant No. 1 admitted that Sudha was the original owner of the land and that Parmeshwari was the widow of Sudha and that the land had been mutated in his name. It was averred that Parmeshwari did not contract any karewa. The defendants were described to be in possession of the land since the death of Sudha as owners by way of adverse possession. The factum of the plaintiffs being the daughters of Sudha was denied. The parties were said to be governed by the custom in the matters of alienation and succession in and under special custom prevailing in Panipat tehsil; the daughters had no right to inherit the ancestral as well as self acquired property of their father in the presence of the collaterals. The written statement of defendant No 3 was also to the same effect in material particulars with one addition that Sudha had another daughter Omi who was the necessary party to the suit. On pleadings of the parties the following issues were framed ; 1. Whether the plaintiffs are the daughters of Sudha ? OPP. 2. Whether Parmeshwari performed 'Karewa' marriage with Ratia in 1955, and if so to what effect ? OPP 3. If issue No. 2 is proved, whether the plaintiffs succeeded to the estate of Sudha ? OPP 4. Whether the land has been given by the Consolidation Authorities to the defendants mentioned in para No. 2 of the plaint comprises the land held by the defendants in their own rights and the land they received from Parmeshwari before consolidation and what is their ratio ? OPP 5. Whether Mst. Omi is the third daughter of Parmeshwari and if so to what effect ? OPD(3) 6. Whether the suit is not within the prescribed period of limitation ? OPD (3) 7. Whether the-suit is collusive with Ratia ? OPD 8. Whether the suit is collusive at the instance of Ratia and Chandan ? OPD(1) 9. If issue No. 2 is not proved whether defendant No. 1 has become owner by adverse possession ? OPD(1) 10. Whether the land in suit was ancestral in the hands of Sudha deceased qua the defendants and the defendants has a preferential right over the plaintiffs, even if, the plaintiffs are proved to be the daughters of Sudha deceased ? OPD(1). 11. Relief. Issue No. 10-A (framed on 15.12.1970) Whether the plaintiffs have effected unauthorised amendment in the plaint and if so in what respect and to what effect ? OPD. Additional issue (framed on 4.9.1973) Whether Sudha was governed in the matters of succession by custom; if so what is the custom ? OPD. Under Issue No. 1 and 2 the trial Court found that the plaintiffs are the daughters of Sudha and that Parmeshwari had performed karewa marriage with Ratia sometime in the middle of 1955. Under Issue No. 4 it was held that Parmeshwari had 1/3rd share and the remaining 2/3rd share belonged to the daughters as the khewat was joint. The land was held to be allotted after consolidation in lieu of previous holdings. It was held under issue No. 5 that the existence of Omi, the third daughter of Sudha, was not proved. The suit was held to be within time under issue No. 6 and the same was held not to be collusive. The land was- held to be self acquired under issue No. 10. Under the additional issue framed on 4.9.1973 it was held that under the custom under which the parties were governed unmarried daughters excluded the collaterals and that the collaterals had no preferential right of inheritance. Consequent upon the decision of additional issue it was held under issue No. 3 that the plaintiffs were entitled to succeed to the estate of Sudha on the remarriage of his widow Parmeshwari and since the plaintiffs were entitled to the property in preference to the collaterals, they became the absolute owners on the coming into force of the Hindu Succession Act. Consequently, the trial Court passed a decree for joint possession of 1/3rd share of land, detailed in the plaint. On appeal, the first appellate court affirmed the findings of the trial Court under issue No. 1 and held the plaintiffs to be the daughters of Sudha. The finding of the trial Court that karewa marriage took place somewhere in the middle of 1955 was upset and it was held that karewa took place somewhere in August or September, 1955, when the Hindu Marriage Act came into force on 18th May, 1955. It was further held that since the first wife of Ratia was alive at the time of karewa marriage of Parmeshwari, her marriage with Ratia was void ab initio and, therefore, it was held that Parmeshwari would remain the wife of Sudha and not of Ratia for the purpose of inheriting the property of Sudha and, therefore, the plaintiffs would get equal shares along with Parmeshwari in the property in question. In other words, while reversing the finding of the trial court under issue No. 2, the plaintiffs were held entitled to the grant of decree for joint possession of 2/9th share in the land in other words, the two plaintiffs, that is, the daughters of Sudha and Parmeshwari were held entitled to the grant of share to the tune of 1/3rd each. Feeling aggrieved against the judgment and decree of the appellate, the defendants have filed the present appeal.
(3.) Shri Midha, learned counsel for the defendant-appellants has vehemently argued that the plaintiffs are not proved to be the daughters of Sudha The argument is not acceptable. Exhibits PA and P.5, the birth entries of the plaintiffs, clearly show that two daughters were born to Sudha. Moreover, the statement of Parmeshwari has rightly been relied upon by the courts below in order to come to the conclusion that the plaintiffs were born to her from the loins of Sudha. Moreover, no question in the cross examination was put to Parmeshwari when she was in the witness-box to the effect that the plaintiffs are not the daughters of Sudha. Admission of defendant No. 3 that Sudha had another daughter Omi also impliedly proved the relationship of the plaintiffs.Confronted with this situation, Sh. Midha has strenuously argued that Parmeshwari on the death of her husband which took place before the coming into force of Hindu Succession Act inherited the ancestral land left by her husband as limited owner and on the coming into force of the Hindu Succession Act her ownership ripened into full ownership. It has further been argued that since Parmeshwari after becoming full fledged owner had consented to the land being mutated in favour of the defendants it is they who have become the owners of the disputed land. The argument though attractive on the face of it does not go home. A perusal of the pleas taken and the issues framed does not indicate that any such case as sought to be argued before this court was either pleaded of argued before the court below. On the other hand, it has been found as a fact that the land in dispute was self acquired property of Sudha and that the plaintiffs and Parmeshwari had equal shares in the suit property being daughters and wife particularly when the marriage of Parmeshwari with Ratia was declared to be void. The attention of the court below was never drawn to any mutation evidencing the inheritance by Parmeshwari as a limited owner of the entire disputed land and in view thereof it could not successfully be pointed out that the defendants got the land in mutation from Parmeshwari as collaterals. Even if such mutations are in existence as was sought to be argued by Shri Midha, the same have got to be declared as null and void in view of right of inheritance of the plaintiffs and Parmeshwari to the estate of the deceased Sudha. Moreover, the defendants took up the plea of adverse possession which they have not been able to substantiate. For the reasons recorded above, the appeal is found to be meritles and the same is consequently ordered to be dismissed with no order as to costs.;