SURESH TIWARI Vs. SUYASH TIWARI

JUDGEMENT

(1.) In both the appeals, the appellants have assailed legality and validity of judgment and decree dated 27.02.2016 passed by the Trial Court, by which, the plaintiffs' suit has been decreed and it has been held that deceased Shanta Bai was title holder and owner of the property described in schedule-A appended to the plaint, comprising of land and house. The original plaintiff (deceased) Shanta Bai filed a suit seeking declaration of title in respect of the property described in schedule-A of the plaint on the pleadings, inter alia, that the property in dispute was purchased in the name of two sons Suresh and Mahesh by a registered sale deed dated 21.11.1968 by her husband Ramsanehi, out of the family income and it constituted part of the joint family property. According to her, later on, a partition had been effected, in which, the property in dispute fell to the share of her husband Ramsanehi with the stipulation in the deed itself that during lifetime of Ramsanehi and plaintiff Shanta Bai, nobody would claim any interest in the property. It was further pleaded that after death of Ramsanehi, the plaintiffs succeeded to the disputed property which was the coparcenary share received by her husband Ramsanehi. The sons having already partitioned their coparcenary share, were not entitled to anything in the property.

(2.) According to the appellants/plaintiffs, the property was not a joint family property but it was jointly purchased by the defendants Mahesh and Suresh. Therefore, further case was that it continued to be joint family property and it was never partitioned. Title of the plaintiff mother to succeed to the property upon death of her husband was seriously disputed.

(3.) During the pendency of the suit, sole plaintiff died. Present plaintiffs namely Suyash Tiwari and Vaibhav Tiwari being grandsons of plaintiff-Shanta Bai and sons of Naresh Tiwari, moved an application for being substituted as legal representatives. As their application for being substituted as legal representative of deceased Shanta Bai, by virtue of a Will, was disputed and opposed by the appellants, learned Trial Court held enquiry under Order 22 Rule 5 CPC and on the basis of that enquiry, concluded that the plaintiffs were entitled to be substituted as legal representative to represent the estate of the deceased. Learned trial Court recorded a finding that the property was joint family property as it was purchased from the funds of the joint family property, there was partition, in which, the property in dispute fell to the share of Ramsanehi and that after death of Ramsanehi, it would devolve upon Shanta Bai (the original plaintiff). In view of its finding recorded in enquiry under Order 22 Rule 5 CPC, learned Trial Court further held that the plaintiffs, who are the legal representatives by virtue of Will are entitled to decree. It is this judgment and decree which is under challenge in both the appeals.