Gujarat High Court Case Information System
Print
FA/333/1991 4/ 4 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST
APPEAL No. 333 of 1991
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
LALITABEN
D/O. GANGARAM PARSOTTAMDAS - Appellant(s)
Versus
CHHOTALAL
C RASANIYA & 8 - Defendant(s)
=========================================================
Appearance
:
MR
GIRISH D BHATT for
Appellant(s) : 1,
NOTICE SERVED for Defendant(s) : 1 - 2, 7, 9,
MR
AJ MEMON for Defendant(s) : 3 - 6.
UNSERVED-EXPIRED (N) for
Defendant(s) :
8,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 19/11/2010
ORAL
JUDGMENT
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 judgement 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 reliefs, 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 judgement and decree. The appeal is devoid of merits
and the same is dismissed. No order as to costs.
(K.S.JHAVERI,
J.)
niru*
Top