Mahila Ramkali Devi And Ors vs Nandram Thr. Lrs.& Ors

3. The plaintiff/appellant no.1 filed a suit for declaration of title and possession of the suit property in Gwalior against the deceased Nandram and deceased Kashiram, who were original defendant nos.1 and 2 respectively and are now being represented through legal representatives and also against defendant no.3 Rukmani Bai. The case of the Appellants was that before Ajuddhibai died issueless in 22.6.1961, she had executed a Will dated 21.1.1961 in favour of plaintiff/appellant no.1 who was the wife of Baijnath, son of Mahadev Prasad. The probate of the Will was also stated to have been obtained. The Appellants challenged the validity of the sale deed dated 19.12.1950 purported to have been executed by Ajuddhibai in favour of defendant no.3-Rukmani Bai and sale deed dated 1.2.1962 executed by Rukmani Bai in favour of deceased Nandram-defendant no.1 and deceased Kashiram- defendant no.2 and alleged that defendant nos.1 and 2 were thus in illegal possession of the suit property. The defendants Nandram and Kashiram denied the averments made in the plaint and contended that they had legally obtained the title of the suit property vide sale deed dated 1.2.1962 though one Ram Singh who was the sub-tenant of Ajuddhibai.

4. The trial court held that the Will in favour of plaintiff/appellant no. 1 was proved and that she had become successor of Ajuddhibai through probate. The sale deeds dated 19.12.1950 in favour of Rukmani Bai were held to be not proved in view of the contradictory statements made by the defendants’ witnesses, the failure of the defendant no.3 to attend court and prove the sale deeds, the absence of the signatures of Ajuddhibai on the sale deeds, the failure to mutate the suit property in their names and as Ajuddhibai was in Vrindavan and not in Gwalior as alleged at the time of execution of the sale deeds. Ram Singh was noted to have been in possession of the suit property till his death in 1956 and the defendants were held to have not acquired title by adverse possession as the suit was filed in 1964. The defendants Nandram and Kashiram were held to have not acquired any title over the suit property. Hence, the suit was allowed and the defendants were directed to hand over possession of the suit property to the plaintiff-appellant.

5. Aggrieved by the judgment of the trial court, the defendant nos.1 and 2 preferred an appeal before the District Court, which upheld the findings of the trial court and dismissed their appeal.

17. The application for amendment of plaint filed by appellant no.1 to make appellant nos. 2 to 5 fall under Class XVII of the Madhya Pradesh Land Revenue Code was rejected by learned Single Judge of the High Court on the ground that the same would change the nature of the suit which was filed 40 years ago, as the claim was made solely on the basis of Will and not on the basis of inheritance. The High Court allowed the appeal vide the impugned judgment as the appellants had no locus standi to file the suit as Ajuddhibai could not have transferred her interest through a Will. Hence, present appeal by special leave by the plaintiffs.

24. In the light of the discussion made hereinabove and also having regard to the fact that the amendment sought for by the plaintiff-appellant ought to have been allowed by the High Court, in our considered opinion substantial issue no.2, as formulated by the High Court, needs to be decided by the High Court afresh.

25. We, therefore, allow the appeal in part, affirm the finding recorded by the High Court on substantial question no. 1 and 3. However, the finding recorded by the High Court in the impugned judgment on substantial question no.2 is set aside and the matter is remitted back to the High Court to decide the aforementioned substantial question no.2 afresh, taking into consideration the relief sought for by the plaintiff-appellant by amending the plaint.