RAM BABU SHARMA Vs. SANTOSH KUMARI

JUDGEMENT

(1.) Plaintiff Pt.Ram Babu Sharma is the son of Pt.Ram Kishan; Pt.Ram Kishan the father of the plaintiff used to look after Mst.Jhando Devi @ Phulo Devi, widow of Sh.Chhiddoo Mal; Mst.Phulo Devi was the owner of property bearing no.4090, Ward NO.VII, Kucha Dilwali Singh, Ajmerigate, Delhi; she was the only living person in her family. For the services rendered to her Mst.Phulo Devi executed her last will dated 1.1.1951 bequeathing her properties including the aforenoted suit property in favour of Pt.Ram Kishan. Pt.Ram Kishan was in continuous possession of this suit property up to the time of his death. After his death, the present plaintiff has inherited the aforesaid property. He is in occupation of the same. On the death of Phulo Devi on 2.1.1951 the defendants no.1 to 3 who had been appointed as trustees of the said immovable property took possession of the said property. Defendants no.4 to 6 are stated to be the tenants in the suit property. It is contended that defendants no.1 to 3 have no right to remain in occupation of the said property or to realize the rent from the tenants i.e. defendants no.4 to 6. It is pointed out that the earlier will of Ms.Phulo Devi dated 27.12.1950 appointing defendants no.1 to 3 as trustees had stood superseded by the last will dated 1.1.1951 pursuant to which the father of the plaintiff had been bequeathed the said immovable property. Suit for possession had accordingly been filed.

(2.) Defendants no.1 to 3 contested the suit. It was stated that the plaintiff is in permissive possession of one dalan, kotha and one kitchen forming a part of the house in the suit property which was in terms of the will dated 27.12.1950 executed by the deceased Phulo Devi; she had created a trust. It was denied that she had executed the last will dated 1.1.1951 superseding her earlier will of 27.12.1950. Submission was that defendants no.1 to 3 were the three trustees out of four appointed under her will dated 27.12.1950. In pursuance of the said will the trustees had taken possession of the whole of the house; defendants no.4 to 6 were tenants and paying the rent to the trust through the trustees. The will dated 27.12.1950 is the only valid will of the deceased.

(3.) On the rival contentions of the parties, the following six issues were framed by the trial court, which read as follows: