DINESH KUMAR SHARMA Vs. RENUKA SHARMA

JUDGEMENT

(1.) Heard learned counsel for the appellants (two in number), who are real brothers.

(2.) This second appeal arises out of O.S. No.493 of 2005 instituted by respondent nos.1 and 2 Smt. Renuka Sharma and Smt. Kunti Sharma. Both the appellants and proforma respondent nos.3 to 6 were defendants in the suit. All the parties except respondent nos.4 and 5 are real brothers and sisters. Respondent nos.4 and 5 are wife and daughter of late Sri Tajendra Dev Sharma who was real brother of the other parties. House in dispute were left behind by late Sri Rameshwar Dayal Sharma father and grand father of the parties. It was pleaded in the plaint that the mother late Smt. Anguri Devi gave her 1/8th share through registered Will dated 17.06.2000 to Smt. Kunti Sharma the plaintiff no.2 hence her share was 2/8 and the share of plaintiff no.1 was 1/8th (total share of both the plaintiffs 3/8th ) and remaining 5/8th share was of the defendants. The trial court held that the plaintiffs had 3/8th share in the property and they could seek partition. However, suit was dismissed under Order 32 Rule 2 CPC at the preliminary stage under Order 7 Rule 11 CPC by Additional Civil Judge (Senior Division) Court No.2, Meerut on 04.04.2009.

(3.) Under Order 32 Rule 2 CPC provision for appointment of guardian of person of unsound mind is provided. After deciding all the material issues in favour of the plaintiffs there was absolutely no sense in rejecting plaint under Order 7 Rule 11 CPC.