Judgment:
U.C. Maheshwari, J.
1. The appellants/defendants have directed this appeal under Section 100 of C. P. C. being aggrieved by the judgment and decree dated 22-7-2008 passed by 3rd Additional District Judge, Jabalpur in Civil Regular Appeal No. 7-A/2008 affirming the judgment and decree dated 30-, 6-2006 passed by 3rd Civil Judge, Class-I, Jabalpur in Civil Original Suit No. 494-A/2003 decreeing the suit of respondent No. 1 for declaration and perpetual injunction, against them.
2. The facts giving rise to this appeal in short are that the respondent No. 1 herein filed the aforesaid suit against the appellants with respect of land bearing Survey No. 151 area 1.02 hector situated at village Tikariya declaring him to be the Bhoomiswami of it and also for issuing perpetual injunction restraining the appellants from interfering in his possession of such land. As per the averments of the plaint the aforesaid land was initially belonged to one Fagulal with whom the respondent No-1 was lived since 30-35 years. Late Fagulal had one daughter namely Tulsabai, who got married with appellant No. 1 Anandilal but soon after the marriage due to some differences the divorce took place between them in accordance with the prevailed custom of their community and since then she was residing with her father late Fagulal. Said Fagulal by executing a registered Will on 20-7-1981 had bequeathed his aforesaid land to the respondent No. 1. Fagulal died on 1-10-1982 while Tulsabai died on 29-11-1995. After the death of Fagulal respondent No. 1 acquired the title over the land on the strength of aforesaid Will. It is also stated that after the death of Fagulal the name of Tulsabai was mutated in the revenue record and after her death, on the strength of said Will respondent No. 1 applied for mutation of his name in the revenue record, the same was accepted by the Gram Panchayat and the land was mutated in his name. Subsequently, the appellant No. 1 filed an application for mutation of his name on the aforesaid land on 7-3-1997 in the Court of Naib Tahsildar, on which some report was called from the Gram Panchayat. According to which the respondent No. 1 acquired the title over the disputed land on the strength of the aforesaid Will. In such premises respondent No. 1 also filed objection in such mutation case. Later the appellant No. 1 got dismissed the mutation proceeding for want of prosecution on 20-7-1999. Subsequent to such, dismissal by concealing such fact of earlier dismissal the appellants filed a fresh application for mutation of his name in the record of rights. The same was entertained by the revenue Court and without extending any opportunity of hearing to respondent No. 1 the land was mutated in the name of appellant No. 1. Such order being ex-parte was ab initio void. Thereafter, respondent No. 1 filed an application for mutation of his name, on dismissing the same he approached the Sub-Divisional Office in appeal, in pendency of such appeal some interim stay was also granted. In spite of that appellant No. 1 has disposed of the disputed land vide sale deed dated 1-7-1999 in favour of appellant No. 2 while the appellant No. 1 did not have any right in the disputed property to execute the alleged sale deed in favour of the appellant No. 2; as the title of the property was already vested on the strength of the Will in favour of the respondent No. 1. In such premises, it is contended that the aforesaid sale deed being ab initio void document is not binding against the respondent No. 1. With these averments, the aforesaid suit is filed by the appellants.
3. In the joint written statement of the appellants, it is stated that respondent No. 1/plaintiff was never resided with the deceased Fagulal. Fagulal was residing in his own house with his daughter Smt. Tulsabai. Said Tulsabai being wife of appellant No. 1 was working as nurse in a clinic of some doctor and after the death of her father Fagulal she became the Kotwar of the village at his place and while serving on such post she died. It was also stated that appellant No. 1 neither deserted Tulsabai nor got any separation from her. The alleged Will in favour of respondent No. 1 was never executed by Fagulal and mere on account of its registration it does not have any legal sanctity. Some other Will of Fagulal dated 1-8-1979 is also on record. In view of inconsistency in the averments of both the Wills the alleged Will dated 20-7-1981, projected by respondent No. 1 appears to be forged and fabricated document. The disputed land was neither recorded in the name of respondent No. 1 nor he remained in possession of the same. After death of Fagulal the name of Tulsabai was mutated and on her demise the name of appellant No. 1 is legally mutated as her legal representative and he rightly executed the sale deed in favour of the appellant No. 2; as he inherited such right from his wife Tulsabai. The impugned suit was filed by the respondent No. 1 on the strength of false and fabricated Will while the respondent No. 1 did not have any right, interest or title over the disputed land. In such premises the prayer for dismissal of the suit was made.
4. After framing the issues and recording the evidence, on appreciation of the same the suit of the respondent No. 1 was decreed by the trial Court holding that due to differences between appellant No. 1 and Tulsabai, the divorce took place between them in accordance with the customs prevailed in their community, since then Tulsabai was residing with her father Fagulal. The execution' of the alleged Will in favour of respondent No. 1 was also found to be proved. Further respondent No. 1 was held to be the Bhoomiswami of disputed land and in pursuance of it, the perpetual injunction restraining the appellants from interfering in his possession of the same was also issued. The sale deed executed by the appellant No. 1 in favour of the appellant No. 2 dated 1-7-1999 was also held to be illegal document. On challenging the same by the appellants in appeal under Section 96 of the C. P. C., on consideration by affirming the judgment and decree of the trial Court the same was dismissed, on which the appellants have come forward to this Court with this appeal.
5. Shri V.N. Shukla, learned appearing counsel of the appellants after referring the pleadings, evidence and exhibited documents available on record, argued that undisputedly the disputed land was the property of Fagulal, on his death the same was inherited by Tulsa bai the wife of the appellant No. 1 and in such premises, she became the Bhoomiswami and after her death being her husband the appellant No. 1 inherited the same as her natural heir under the provision of Section 15(1) of Hindu Succession Act. The respondent No. 1 being stranger has no right to challenge his title regarding the disputed property. So far the alleged Will executed by Fagulal in favour of respondent No. 1 is concerned, he said that the same has not been proved in accordance with the provisions of Indian Succession Act and the Evidence Act by the attesting witnesses and even otherwise such Will was never disclosed by such respondent for years together since 1981 up to the death of Tulsabai and also on the strength of such Will the mutation of Tulsabai was never disputed in her life time. In such premises, the Will projected by respondent No. 1 being suspicious could not be held to be bona fide or genuine document. Mere on the ground of its registration, the same could not be relied upon to draw any inference in favour of the respondent No. 1 and contrary to the interest of appellant No. 1. The appellant No. 1 executed the sale deed in favour of the appellant No. 2 under the vested right and the same could not be held to be ab-initio void document. It was also argued that if suit filed by the respondent was hopelessly barred by limitation in spite it by entertaining the same it was decreed under the wrong premises. With these submissions he prayed for admission of this appeal on the proposed substantial questions of law mentioned in the appeal memo.
6. Having heard the counsel after perusing the impugned judgments and examining the records of Courts below, I am of the considered view that the trial Court has not committed any error in decreeing the suit of the respondent No. 1 and the lower appellate Court has also not committed any error in upholding the same.
7. It is undisputed fact on record that initially such land was belonging to Fagulal. Tulsabai the daughter of Fagulal got married with appellant No. 1 Anandilal but as per concurrent findings of both the Courts below subsequent to their marriage within two and half months on arising some differences between them they separated and got divorce according to the prevailed custom of their community and since then Tulsabai was used to reside with her father to serve and look after him. It was also concurrently held that respondent No. 1 being nephew (sister's son) of Fagulal, in whose favour the alleged Will was executed, was also residing with him since long. The execution of such Will has also been found to be proved by both the Courts below. The concurrent findings holding the Will to be a proved document being finding of fact is not open for interference under Section 100 of C. P. C. at this stage as laid down by the Apex Court in the matter of Parsini v. Atma Ram reported in : AIR 1996 SC 1558. So on the question of Will, this appeal does not have any question of law rather than the substantial question of law.
8. So far the argument of the appellants' counsel on the question of limitation, saying that the suit of the respondent No. 1 was barred by time has not appealed me. The person like respondent No. 1 being Bhoomiswami in possession the disputed land has recurring cause of action to file the suit for declaration and perpetual injunction against the persons like appellants who made effort to interfere in his right and possession of such land. In such premises, the approach of both the Courts holding the suit within limitation does not appear to be perverse and same do not require any interference at this stage under Section 100 of C. P. C.
9. Besides this, the concurrent findings on the question of limitation being finding of fact could not be interfered under Section 100 of the C. P. C. in view of the decision of the Apex Court in the matter of Dudh Nath Pandey v. Suresh Chandra Bhattasali reported in : AIR 1986 SC 1509.
10. Apart the above, the alternate approach of the appellate Court by which even after excluding the Will of respondent No. 1 from the consideration it was held that the disputed land being inherited by Tulsabai from her father Fagulal as his natural heir, after her death could not be inherited by her husband Anandilal, appellant No. 1, the same was inherited by the heirs of her father appears to be correct in view of the provision of Section 15(2) of Hindu Succession Act (in short 'the Act'), the same is read as under:
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 their 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 their 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.
11. According to aforesaid Sub-section (2) of Section 15 of the Act, the property which was inherited by a daughter from the side of her parental family then after her death the same was devolved upon the heirs of her father and not to the husband or her in-laws family. In the case at hand, undisputedly, Tulsabai inherited the disputed land from her father and died issueless, the present case is not governed by Section 15(1) of the Act but the same is governed by Section 15(2) of the Act. In such premises, even on excluding the alleged Will of Fagulal in favour of respondent No. 1 the disputed property which was inherited by Tulsabai from her father, the same has been devolved to the legal representatives of her parental family and not to the husband's family and respondent No. 1 being nephew (sister's son) of late Fagulal is falling under such category under Class-II of the Schedule enacted under the Act.
12. In the aforesaid circumstances, the approach of both the Courts below do not appear to be perverse or arbitrary in any manner and the same are not giving rise to any substantial question of law much less the substantial question of law requiring any interference under Section 100 of the C. P. C. Resultantly, this appeal deserves to be and is hereby dismissed at the stage of motion hearing
13. The appeal is dismissed as indicated above.