PHULBASIA Vs. RAMSINGH

JUDGEMENT

(1.) This second appeal under Section 100 of the CPC has been preferred by the defendants. The suit was filed by original plaintiff Ram Singh, who died during the pendency of the appeal and is now represented by his legal heirs respondents No. 1 (a) to 1 (d). The original plaintiff's suit for declaration and partition was decreed by the trial Court and the same has been affirmed by the first Appellate Court. The relationship between the parties can be appreciated by the following genealogical tree:-

(2.) It was stated by the plaintiff that the parties are Gond tribals and have adopted traditional Hindu Law with regard to succession. The plaintiff's father Bahadur Gond died leaving 3 sons namely, the plaintiff Ram Singh, defendant No. 1 Patraj and Amar Sai, whose widow Mst. Phoolbasiya was arrayed as defendant No. 2. Defendant -No. 3 Devraj is the son of defendant No. l Patraj. All the three sons of Bahadur Gond succeeded the property and their names were recorded jointly in the revenue records concerning 11.194 hectares of agricultural land. The eldest son Amar Sai died in 1982 and defendant No.2 is his widow. After the death of Amar Sai, the widow is also entitled to and has a right of maintenance during her life time and otherwise, the plaintiff and defendant No. 1 Patraj Gond, remaining two brothers, are entitled to succeed the property in equal share. However, defendant No. 3 Devraj, son of defendant No. 1 Patraj, illegally got recorded his name by an order of Naib Tehsildar passed on 31-7-1982 and has started claiming 1/3rd share in the suit property. According to the plaintiff, the name of defendant No. 3 Devraj was recorded in connivance with defendants No. l and 2. The suit was thus filed seeking a declaration that defendant No. 3 Devraj has no right, title or interest to succeed the property on the share belonging to said Amar Sai and that the plaintiff and defendant No. l Patraj have one half share each in the suit land and partition to this effect be effected between the parties.

(3.) The defendants filed common written statement and stated that Phoolbasiya was not married with Amar Sai and she was living with Amar Sai as his concubine, thus, Phoolbasiya has no right, title or interest in the suit property. It was specifically pleaded by the defendants that Amar Sai executed a will in favour of Devraj with respect to his l/3rd undivided share and on this basis, his name has been recorded in the revenue records. It was thus stated by the defendants that Phoolbasiya has no right and Devraj is entitled to l/3rd share on the strength of will executed by Amar Sai in his favour.