SAVITRI DEVI Vs. SHANTI DEVI

JUDGEMENT

(1.) This application under Order 1, Rule 10 and Section 151 of the Cade of Civil Procedure has been filed in the suit for declaration pending since 1982. The plaintiffs in the suit are three in number. The plaintiffs seek a declaration that release deed dated 15th May, 1968, executed by late Shri Charan Kumar in favour of his mother, the defendant, is invalid and that the plaintiffs have shares in the property subject matter of the release deed. The first plaintiff is the wife of deceased Shri Charan Kumar and plaintiffs 2-3 arc respectively the son and daughter of late Shri Charan Kumar, both these plaintiffs being minor. It is stated that the property was an ancestral property in the hands of Shri Charan Kumar and could not be subject matter of any release deed. The first plaintiff claims .to be owner of l/8th share of the property and plaintiffs 2 and 3 respectively 5/8th and l/8th thereof. Various issues were framed in the suit and one of the issues being whether the suit property was ancestral as alleged by the plaintiffs and further whether the release deed executed by Shri Charan Kumar in favour of his mother, the defendant, was void and if so what would be the respective share of the parties. Before the parties could go for trial on the issues, the present application has been filed.

(2.) The applicants, numbering five, claim to be the heirs of Shri Charan Kumar; being his wife and four minor children; three daughters and one son. The applicants state that they have direct interest in the suit property. They say that Shri Charan Kumar was living separately from the plaintiffs since 1965 and had, in fact, divorced the first plaintiff, his wife, and thereafter he married the first applicant in this application, namely, Smt. Rakhi Kumar on 14th November, 1967 and four children were born to the parties respectively on 14th October, 1969, 16th January, 1971, 2nd December, 1972 and 16th May, 1974, the son being the youngest of the children. It is also stated that at the time of death, Shri Charan Kumar was living with the applicants and in the ration card lie was shown as head of the family with the applicants as the members of ins family. Then, the applicants state the reason for delay in moving tin's application.

(3.) On notice being issued, the plaintiffs have opposed the application. The stand taken by the defendant is, however, more or less neutral. The plaintiffs in their reply stale that the first applicant Smt. Rakhi Kumar was never married to Shri Charan Kumar and that she is professing Christian religion and could not have married Shri Charan Kumar and particularly when his first wife, the first plaintiff, was living and had not been divorced at the time of death of Shri Charan Kumar.