AJAY P ASHER Vs. KIRIT P ASHER

JUDGEMENT

(1.) Plaintiff is the appellant. His claim for partition and separate possession of the suit properties was negatived by the court below upholding the opposition of the 1st defendant that there was testamentary succession over the properties under Ext.B9 Will. Aggrieved by the dismissal of the suit, the plaintiff has come up with this appeal. Plaintiff and the 1st defendant are the two sons, and the 2nd defendant, the only daughter of late P.L. Asher. Three schedules of properties as 'A', 'B' and 'C' were described under the plaint for partition and separate possession. Plaint A' schedule property belonged to the aforesaid P.L. Asher, the father of the parties and, 'B' and 'C' schedule properties belonged to their grand father, the former of them is immovable property and the latter, movable properties, was the case of the plaintiff. Suit claim for partition and separate possession of 1/3rd share in the above three schedule properties was sought for by the plaintiff alleging that a request made by way of a letter and also by a reminder to supply a copy of the Will purported to have been executed by late P.L. Asher, as claimed by the 1st defendant, has not been complied with, and the plaintiff did not wish to continue joint possession of the properties. The 2nd defendant, daughter did not contest the claim. The 1" defendant, in his written statement, asserting that there was a testamentary succession over the properties of late P.L. Asher under Ext.B9 Will, contended that the aforesaid P.L. Asher had no proprietary title over A' schedule property. A partnership firm 'M/s P.L. Asher and Company', in which, late P.L. Asher was a partner, has tenancy rights over item Nos. 2 and 3 in A' schedule and under the bequest made in Ext.B9 Will, after the death of the aforesaid partner, his rights thereof devolved upon the 1st defendant, was his case. 'B' schedule property under the Will had been bequeathed in favour of one Hrishi, his son, and item Nos. 2 and 3 in 'C schedule property are bequeathed to him under Ext.B9 Will, according to the 1st defendant. Some items in 'C schedule as specified in the Will have been bequeathed to the plaintiff and he is in possession of those movable items, was the further case of the 1st defendant contending that the suit was bad for partial partition and also for non-joinder of necessary parties in as much as the other legatees under Ext.B9 Will, who included his wife, and also grand children of the testator have not been made parties to the suit.

(2.) Plaintiff amended the plaint impeaching Ext.B9 Will as created under the undue influence exerted over the testator late P.L. Asher by the 1st defendant, and, on that basis, he imputed the genuineness of that testament.

(3.) On the pleadings of the parties as aforesaid, the court below raised the issues thus: (i) Whether Ext.B1 Will is vitiated by undue influence (ii) Is the plaintiff entitled to seek partition of the plaint schedule properties and (iii) What, if any, are the partition