Taj Mohammad and Others vs Alyas and Others

Sat Pal, J.—This appeal is directed against the judgment dated 30th March, 1972 passed by the Sub Judge Second Class, Jagadhari and judgment dated 6th June, 1979, passed by the Additional District Judge, Ambala.

Briefly stated, the facts of the case are that one Daraz had gifted share of his land in favour of his two daughters, namely, Mst. Aishan and Fatti, and the other share of Daraz had gone to his wife Bholi. Aishan died in 1962. After her death, her sister Fatti filed a suit claiming the property belonging to Aishan. The property belonging to Mst. Aishan was also claimed by the collaterals of Daraz who are the appellants in the present appeal. The said suit filed by Fatti finally culminated in the judgment dated 20th January, 1977, and appeal arising out of the same was filed in the High Court, bearing RSA No. 276 of 1996, and this Court held that Fatti was entitled to the share of the land belonging to Mst. Aishan and the collaterals were not entitled to this share. It may be relevant to point out here that during the pendency of the aforesaid appeal, RSA No. 276 of 1966, Fatti had also died and Alyas, who is respondent No. 1 in this case was impleaded as L.R. of Fatti. Suit No. 330 of 1969 was filed by Alyas for permanent injunction against the collaterals of Daraz (who are appellants in this appeal) and Asghree, daughter of Fatti (who is respondent No. 2 in the present appeal). Asghree also filed suit bearing No. 332 of 1992 claiming possession of her share, being the daughter of Fatti, against Alyas (respondent No. 1). Both the suits bearing No. 330 and 332 of 1969 were consolidated and disposed of by a common judgment dated 30th March, 1972 passed by the learned trial Court. By this judgment, the learned trial court held that the will executed by Fatti in favour of Alyas was a genuine document and as such Alyas was entitled to the property in dispute. In para 22 of the judgment, it was observed that "By virtue of the Will, Alyas is entitled to inherit the property of Smt. Faitti as her heir, though in the absence of the Will and believing that the character of the land remained ancestral, Smt. Asghari was entitled to inherit the property of Smt. Fatti as her natural heir."

The judgment dated 30th March, 1972 passed by the learned trial court was challenged by the collaterals of Daraz (appellants herein) and the said appeal was disposed of by the learned Additional District Judge, Ambala, vide his judgment dated 6th June, 1979. By this judgment, the learned Additional District Judge rejected the appeal of the collaterals of Daraz. He, therefore, reversed the finding of the learned trial court that the will allegedly executed by Fatti in favourof Alyas was bona fide document. He held that in view of the decision dated 20th January, 1977 in RSA No. 275 of 1966 (Smt. Phatti v. Qamru and Ors.) the collaterals (appellants herein) could not succeed to the property of Smt. Fatti as her daughter Asghari was alive who was having a better claim to the property as against the collaterals. The learned Additional District Judge farther held that it did not matter that Asghari could not file appeal because a right of succession cannot remain in abeyance. Aggrieved by this judgment, the present appeal has been filed by the collaterals of Daraz.

Mr. Avtar Singh Khaira, learned counsel appearing on behalf the appellants, submitted that the learned trial court had given a finding in favour of Alyas on the basis of the will allegedly executed by Smt Fatti and since the aforesaid finding has been reversed by the learned first appellate court, the first appellate court ought to have held that the appellants being collaterals of Daraz were entitled to the property of Fatti, particularly when Asghari had not challenged the judgment passed by the learned trial court.

Mr. Sharma, learned counsel appearing on behalf of the respondents, however, drew my attention to the decision dated 20th January, 1977 given by this Court in the case of Smt. Fatti (supra) and contended that in view of the law laid down by this court in the said case, collaterals were not entitled to any relief and Smt. Asghari being the daughter of late Smt. Fatti was entitled to the property in dispute.

I have heard the learned counsel for the parties and have perused the records. In para 22 of the judgment, the learned trial court while deciding issue No. 5 had given the finding that Alyas was entitled to inherit the property of Smt. Fatti by virtue of the will executed by Smt. Fatti though in the absence of the will Smt. Asghari was entitled to inherit the property of Smt. Fatti as natural heir. Since the will allegedly executed by Smt. Fatti in favour of Alyas has been held invalid by the learned first appellate court and Alyas has not challenged the said finding before this Court, the finding of the learned first appellate court has become final. In the absence of the will, Smt. Asghari, being the daughter of Smt. Fatti and her natural heir, will be entitled to inherit the property of Smt. Fatti. In view of these facts, I do not find any illegality or infirmity in the findings of the learned first appellate court that Smt. Asghari, being the daughter of Mst. Fatti, who is alive has a better claim to the property as against the collaterals in view of the law laid down by this court in the case of Smt. Fatti (supra), wherein it was held by this Court that collaterals have no right to inherit the property of a deceased person who has left behind any natural heir.

For the reasons stated herein above, I do not find any merit in this appeal and the same is dismissed. The parties are, however, left to bear their own costs.