GOPAL SWAROOP Vs. KRISHNA MURARI MANGAL

JUDGEMENT

(1.) This appeal by special leave arises out of a judgment and order dated 4th March, 2002 passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, whereby Letters Patent Appeal No. 75/1994 has been allowed in part and the judgment and decree passed by the First Appellate Court modified.

(2.) The facts giving rise to the filing of a suit for partition and separate possession by the plaintiff-respondent No. 1 in this appeal have been set out in the judgment under appeal hence do not bear repetition. All that need be stated is that respondent No. 1 the plaintiff in the suit claimed partition of what was described by him as joint family property with his father Shri Panna Lal-defendant No. 1 as the Karta of the joint family. During the pendency of the suit Shri Panna Lal died giving rise to an additional issue as regards the devolution of the property left behind by him including his share in the joint family property. The appellant set up a Will allegedly executed by Shri Panna Lal according to which the share of the deceased testator was to devolve exclusively upon the former. The suit filed by the respondent was eventually decreed by the Trial Court holding plaintiff-respondent No. 1 entitled to 1/5th share in the joint family property and the goodwill of the joint family business. The Court also found that the Will set up by the appellant herein had been duly proved and that in terms thereof the property left behind by Shri Panna Lal would devolve exclusively upon the appellant.

(3.) Both the parties filed appeals which were heard by a learned Single Judge of the High Court of Madhya Pradesh who formulated the following two questions for determination and finally dismissed the appeal by his orders dated 26.9.1994: