RAJ KUMAR JAIN Vs. JAGWATI DEVI

JUDGEMENT

(1.) THIS first appeal by Raj Kumar Jain and Iswar Kumar Jain sons of Kailash Chandra defendant No. 1 is directed against the judgment and decree of the 1st Civil Judge, Meerut dated 11th February 1976, de - creeing the plaintiff's suit for a declara -tion that the probate dated 26th October 1961 had no effect on the plaintiffs who were the owners of the property in suit,

(2.) THE suit giving rise to this appeal was filed by Ugra Sen son of Janki Das (plaintiff No. 1) Smt. Jag -wanti, widow of Kesho Ram another son of Janki Das (plaintiff No. 2). Smt. Rajeshwari Devi, Prem Chandra, Kumari Kamata Devi, Kumari Usha Devi, Kumari Nammo Rani Mahesh, children of Kesho Ram (plaintiff Nos. 3 to 8), on 15th October 1962. The plaintiff set up the following pedigree: - -

(3.) DEFENDANT No. 1, Kailash Chandra, filed a written statement and claimed that the pedigree set up by thr plaintiffs was not correct. According to him Smt. Asharfi mother of Ugrasen was the daughter of Banarsi Das and not of Bansidhar as shown in the pedigree set up by the plaintiffs. Likewise, his mother Smt. Naggo was the daughter of Bansidhar and not of Banarsi Das as shown in that pedigree. In the circumstances it was defendant Kailash Chandra who was the nearest heir of Jagmandar Das and was entitled to succeed to the property left by Jagmandar Das and his sister Ram Katori. The property in dispute belonged to Jagmandar Das and Ram Katori and Ram Katori was fully empowered to dispose it of in any manner she liked. Ram Katori executed a will on 25th October 1955 bequeathing all her properties to contesting defendants who have already obtained a probate of the said will from the court of the District Judge Meerut. Despite this the plaintiffs, after the death of Ram Katori had taken wrongful possession of the property in dispute. The defendant pleaded that as the suit had been filed more than six years after the death of Ram Katori it was barred by time. He also pleaded that the suit was barred by res judicata and the provisions contained in Section 42 of the Specific Relief Act.