Lalitaben vs Chhotalal C. Rasaniya and Others

K.S. Jhaveri, J.

1.0 Learned advocate for the Appellants seeks permission to delete Respondent No. 8 who has expired. Permission as prayed for is granted. The matter is taken up for final hearing today.

2.0 This appeal is directed against the judgment and decree dated 28.12.1995 passed by the learned Judge of the City Civil Court No. 7, Ahmedabad in Civil Suit No. 1162 of 1982 dismissing the suit of the Appellant-Plaintiff.

3.0 The facts of the case in brief are that the Defendant No. 1 has filed application in the Civil Court with the respect to the suit will. Thereafter Civil Suit No. 473 of 1982 was filed for administration in respect of suit property in accordance with the suit Will without impleading the Plaintiff as a party thereto with a view to obtain convenient order behind her back. The Appellant-original Plaintiff has challenged the legality and validity of the suit will. According to her, the suit property in the hands of the deceased testator was an ancestral property and he had no right to dispose of it of by means of testamentary document to the exclusion of the Plaintiff. The Appellant has also made an application for impleading her as a party Defendant. The learned Judge after framing the issues dismissed the suit of the Appellant. Hence, this appeal.

4.0 Learned advocate appearing for the Appellant has submitted that disputed Will was not genuine Will of the deceased Gangaram Pashottmdas. Learned advocate for the Appellant has further submitted that deceased testator had no right or authority to make the Will in question in view of the fact that the suit property was not his self-acquired property but was the ancestral property in his hand.

5.0 The Trial Judge has framed the following issues at Exh. 20:

(1) Does the Plaintiff prove that the suit executed by deceased Gangaram Parshottamdas on 11th August, 1940 is illegal and invalid and not binding to her?

(2) Is the suit had on account of inadequate court fees paid thereon?

(3) Is the suit not maintainable in law?

(4) Is the suit barred by principles of delay, acquiescences and estopple?

(5) Is the suit barred by the law of limitation?

(6) Is the suit bad on account of misjoinder and non-joinder of parties?

(7) What relief or relief''s, if any, is the Plaintiff-entitled to claim in this suit?

(8) What final order and decree?

6.0 While considering the above issues, the Trial Judge has found that suit is filed by the Appellant-original Plaintiff for seeking declarations to illegality and invalidity of the suit will. No other relief, independent or consequential has been claimed by the Plaintiff in this suit. It is also found that the suit was admittedly executed on 11.08.1940. The deceased testator admittedly died on 08.11.1942. The suit was filed nearly 42 years after the death of the deceased testator. There is thus prima facie inordinate delay on the part of the Plaintiff in filing the suit. Further, in cross-examination at Exh. 39, she has admitted that at the time of her father'' s death, she knew that she was also an heir of her father along with her sister. Thus it is clear that Plaintiff never asserted her right as heir in her father''s property after his death. It is further held that Plaintiff had acquiesced in enjoyment of her father''s property by her sister despite the fact that the former was also an heir in the father''s property. The learned Judge has discussed oral as well as documentary evidence in detail. I am in complete agreement with the findings recorded by the Trial Judge. I do not find any reason to reverse the findings of the Trial Judge. Learned Advocate for the Appellant has failed to prove that Trial Judge has committed error in passing the judgment and decree. The appeal is devoid of merits and the same is dismissed. No order as to costs.