PARULBEN BHARATBHAI SHAH Vs. YOGINIBEN UMESHCHANDRA SHAH

JUDGEMENT

(1.) HEARD learned advocate Mr. B.R. Gupta for the appellant and learned advocate Mr. K.B. Paneri for the respondent. Both the parties have agreed to decide this appeal finally and hence both of them have argued at length since record and proceeding of the Civil Suit No.100 of 2013 from which this appeal arises is received by this Court.

(2.) I have considered the submission of both the sides as well as pleadings in appeal and record and proceeding of the original suit. For the sake of convenience, parties are referred in their capacity before the trial Court where present appellant is defendant, whereas, respondent is original plaintiff.

(3.) IN nut shell, the grievance is with reference to the properties of parents of defendant who are inlaws of the plaintiff. Plaintiff is widow of one Umeshchandra Jayantilal Shah, whereas, defendant is her sister and thereby, daughter of said Jayantilal Shah. Said Jayantilal Keshavlal Shah expired on 14.4.2010 but before that, his wife Shantagauri expired on 19.7.2003, whereas, only son Umeshchandra husband of the plaintiff expired on 29.7.2001. W hereas, the only daughter defendant herein had married to one Bharatkumar Nandlal Shah and residing in USA. Pedigree of late Jayantilal Keshavlal Shah is on record at mark 4/12 before the trial Court. It is the case of the plaintiff that her fatherinlaw namely; deceased Jayantilal Keshavlal Shah has, during his life time, acquired several movable and immovable properties, which are very well described in Paragraph 5 of the plaint. It is further stated that some of such properties are purchased jointly with her mother in law i.e. late Shantagauri and in some properties, they have purchased half the share of the property with other coowners. It is also contended that inlaws of the plaintiff had also acquired several golden and silver ornaments and they have some bank balance as well as fixed deposits in bank. All such properties are described as suit property in the pleading before the trial Court. Since details of all such properties are well described in the plaint and when there is no dispute so far as description of properties are concerned, it is also described herein as a suit property only. However, amongst all such properties, the basic dispute is with reference to one residential flat situated in Saraswati Apartments, Near Gandhigram Railway Station, Ellisbridge, Ahmedabad City which is part of final plot no.491 of TP Scheme No.3 of SubPlot No.2/2 having construction of 120 square yards i.e. 100 square meter. Such flat was purchased in joint name of Shantagauri Jayantilal Shah as well as Jayantilal Keshavlal Shah being inlaws of the plaintiff. It is further contended in the plaint that infact all the properties were purchased by the deceased Jayantilal Keshavlal Shah from his own income and, therefore, now in his absence, it becomes ancestral property for his heirs. It is further contended that after the marriage of the plaintiff with Umeshchandra J. Shah on 9.12.1993, she was residing with her inlaws and she has taken care of her inlaws even after death of her husband. It is further contended that though deceased Jayantilal Keshavlal Shah has not executed any W ill, when defendant is claiming the right over the suit properties through some W ill, knowing about execution of some such document under coercion and pressure, deceased Jayantilal Keshavlal Shah has while mutating properties in joint name with the plaintiff, filed an affidavit before the revenue authorities on 4.11.2004 confirming that deceased Shantagauri has ever executed any W ill. It is further contended that in such affidavit when Jayantilal Keshavlal Shah has not disclosed about the execution of any W ill prior to filing of such affidavit, it cannot be believed that he has executed any W ill in favour of anybody, more particularly, present defendant. Based upon such affidavit and relevant proceedings by the revenue authorities, the said properties were transferred in the joint name of Jayantilal Keshavlal Shah and the plaintiff being his daughter in law. Thereby, name of Shantagauri Jayantilal Shah was deleted since she died in the year 2003. Copies of such affidavit and revenue entries confirming the year 2005 are also produced on record at mark 4/10 and 4/11.