IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA 86 of 2000. Decided on June 1, 2010. Zabbar Singh …Petitioner. Versus Sarojini Devi ..Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant Mr. Rama Kant Sharma, Adv. For the respondent Mr. Bhupinder Gupta, Sr. Advocate, with Ms. Charu Gupta, Advocate. Surjit Singh, Judge (Oral). This regular second appeal by the plaintiff has been filed to seek reversal of judgment and decree, dated 2.3.2000, of learned District Judge, Kinnaur, whereby, dismissing appeal of appellant-plaintiff against the judgment and decree, dated 29.12.1994, of learned Senior Sub Judge, Kinnaur, said judgment and decree of learned Senior Sub Judge has been affirmed. 2. Plaintiff filed a suit for declaration that he had inherited the estate of his father Saran Dev, to the exclusion of his step mother Mathura Devi, impleaded as defendant and that mutation of half of estate of his father Saran Dev in favour of Mathura Devi, as life Whether reporters of the local papers may be allowed to see the judgment? - 2 - estate, was illegal, wrong, void and not binding upon him and that order of partition, passed by Assistant Collector for partition of estate of his father at the instance of defendant, on the basis of the aforesaid mutation, was also illegal and void. 3. Admitted facts are that Saran Dev, father of the plaintiff, was owner of the suit property. He died on 20.3.1982 and on his death, his estate was mutated in favour of the plaintiff and defendant Mathura Devi, widow of said Saran Dev. However, property inherited by Mathura Devi per said mutation, was to be held by her as life estate and on her death, it was to revert to the reversioners of Saran Dev. 4. Mathura Devi, defendant applied for partition. Despite objections by the plaintiff, Assistant Collector allowed application for partition, vide order dated 30.6.1987. So, plaintiff filed the suit for declaration to the aforesaid effect. He also prayed for issuance of permanent prohibitory injunction, restraining Mathura Devi from interfering in his possession over the suit land. 5. Plaintiff alleged that the parties were governed by custom in the matter of succession and inheritance and as per that custom, in the presence of son(s) of a deceased man, his widow and daughters - 3 - had no right to succeed to the property of the deceased. 6. Suit was contested by Mathura Devi. She denied that there was a custom prevailing as pleaded by the plaintiff or that the parties were governed by custom, in the matter of succession and inheritance. Various issues were framed, based on the pleadings of the parties and ultimately, it was concluded by the trial Court that mutation in respect of estate of Saran Dev had rightly been attested. It was held that the parties were governed by custom in the matter of succession and inheritance and that Mathura Devi had inherited half of the suit property, as life estate holder, in accordance with that custom. Other issues, based on preliminary objections, except that of estoppel, were found against the defendant. Suit was consequently dismissed. 7. Appeal was filed against the judgment and decree of the trial Court. Learned District Judge dismissed the appeal. 8. The present appeal was admitted on the following substantial questions of law: 1. Whether the judgment and decree passed by both the courts below is the result of complete misreading, misinterpretation as - 4 - well as mis-appreciation of the provisions of Ext. PB Wazib-ul-arz (Customary Law of Revenue Estate, Ribba). 2. Whether the courts below are right in holding that widow in Kinnaur District had a right to seek partition of the property when it is barred under the provisions of Tribal Custom and the order dated 30.6.1987 passed by the Assistant Collector Ist grade, Murang was liable to be quashed and set aside. 3. Whether the courts below are right in not drawing an adverse inference against the original defendant Smt. Mathura Devi who did not appear as her own witness as has been held by the Hon’ble Apex Court. 9. Mathura Devi, defendant in whose favour mutation, in respect of half share of the estate of Saran Dev, was attested as a limited owner till her life time, died during the pendency of appeal before learned District Judge. She died on 17.11.1995. After her death, Sarojini Devi, her daughter, was brought on record as her legal heir. As a matter of fact, Mathura Devi, being only a limited owner till her death, as per decree of trial Court, cause of action, on which the plaintiff’s suit was based, ceased to exist. Therefore, the first appellate Court, instead of deciding the appeal - 5 - on merits, should have dismissed the suit itself, having become infructuous. 10. Mathura Devi, being only a life estate holder, cause of action, as pleaded by the plaintiff, came to an end and, therefore, suit became infructuous. Consequently, appeal is allowed. Judgment and decree of the first appellate Court, as also those of the trial Court are set aside and suit is dismissed, as infructuous. 11. Appeal stands disposed of accordingly. June 1, 2010 (PC). (Surjit Singh), J.