RADHABAI DIED AND DELETED Vs. PHULKUNWA BAI

JUDGEMENT

(1.) I.A.No.8 for taking documents on record is dismissed summarily.

(2.) BY this second appeal under Section 100 of the Code of Civil Procedure the appellants have challenged legality and propriety of the judgment & decree dated 22.11.1995 passed by the 6th Additional District Jude, Raipur, in Civil Appeal No.47-A/94, reversing the judgment & decree dated 29.3.94 passed by the Civil Judge Class-II, Gariyaband, in Civil Suit No.11-A/88, dismissing the suit for declaration, injunction and possession filed on behalf of the respondents against original defendant Baishakhu.

(3.) LEARNED counsel for the appellants submits that property was originally held by Harchand, father of Phulmat and husband of Leelabai who died in the year 1920. After death of Harchand Leelabai remarried with Goverdhan and Phulkunwa and Shyambai are daughters of Leelabai through Goverdhan. Plaintiff Bannin is daughter of Kawal Singh, son of Leelabai and Goverdhan i.e. not heir of Harchand. Partition took place between Leelabai and Phulmat, disputed property was given in share of Phulmat, Phulmat executed will in favour of her husband Baishakhu who executed will in favour of Radhabai. LEARNED counsel further submits that Phulmat was absolute owner of the property which was in her possession who died in the year 1979 as testamentary succession or non-testamentary succession, property left by Phulmat was inherited by her husband Baishakhu under Section 15 (1) (a) of the Hindu Succession Act, 1956 (for short 'the Act, 1956'), although they have proved execution of will by Phulmat in favour of Baishakhu and second will by Baishakhu in favour of Radhabai, but even in absence of will after death of Phulmat even in case of property inherited from her father it will not return back to any person i.e. legal heirs of her father in absence of any surviving heirs. Leelabai was not alive, appellants are not heirs of Harchand, thereafter after death of Phulmat, Baishakhu became absolute owner of the property left by Phulmat. After death of Baishakhu his sister Radhabai inherited the property as testamentary succession even in absence of proof of will. She will inherit the property as heirs shown in sub-clause II of clause (b) of the Schedule appended to Section 8 of the Act, 1956 as sister of Baishakhu.