RAGHUBIR SINGH Vs. IMRAT

JUDGEMENT

(1.) Appellant feels aggrieved by the judgment and decree dated 7-3-89 passed by Shri C.S.Gupta, Addl. District Judge Khurai (Sagar) in Civil Suit No. 14-A/88 and challenges legality and validity thereof in the present first appeal under Sec. 96 C.P.C.

(2.) The respondent Imrat had brought the present suit for possession of disputed land and house, claiming that the same form his joint family property of which he is the sole surviving member. In the alternative, he claimed partition and separation of his share thereupon. Case of the respondent-plaintiff, as appearing in the plaint, is that the property in dispute is the joint family property and was originally owned by Hiralal, his father. According to the respondent-plaintiff, Hiralal had seven sons, including himself, and now he is the sole surviving son of the said Hiralal. Four sons of Hiralal had died without any heir, leaving the respondent, Gorelal and Barelal who constitute the joint family. According to him, he and Barelal joined military sometimes in 1943 and therefore, Gorelal managed the entire-property. After the respondent was discharged from the military service, he started working at Sagar and reconstructed the suit-house by contributing his earnings. According to the respondent, the suit house was originally a kuchcha structure and was constructed into a pacca double storied house about 20 years before He claimed that he himself was living in the suit house but was driven out of die same sometimes in 1988. as the appellant claimed ownership thereof or the basis of an alleged Will executed by Gorelal. The respondent plaintiff claimed that the Will was forged and fabricated and did not give any right over the property to the appellant. That is how, he claimed to be the sole surviving heir of Hiralal and prayed for a decree for possession of the suit-property. In the alternative, he submitted that is the Will executed by Hiralal be treated to be valid, then, the same would not be binding on him and only half interest of Gorelal will pass on to the respondent That is how he claimed partition and separation of his half-share in the suit-property as a alternative relief. The appellant denied the claim and submitted that there was no joint family nor w as share any joint family property. According to the appellant, the property in dispute was the property of Gorelal and therefore the respondent had no right or title in it. The appellant further claimed that the Will executed by Gorelal was legal and valid. The learned trial Judge on the basis of evidence adduced by the parties, held that Gorelal had on 22-2-80 executed a will (Ex. D-l) in favour of the appellant and the said Will was legal and valid. The learned Judge further held that since Gorelal died on 3-3-85, the appellant became owner of Gorelal's interest in the suit-property. The learned Judge further held that the suit-property was not the property of Hiralal but was the property purchased with the help of Hiralal's property which formed the nucleus. The learned Judge therefore held that the suit property was the joint family property and consequently the respondent had half interest in the same. That is how a decree for declaration of half interest and possession thereof after partitioning the property has been passed which is under challenge in this first appeal.

(3.) As regards legal validity of the will, the same has been decided in favour of the appellant by the learned trial Court and there is no challenge to the said finding. Under the circumstances, the Will (Ex. D-l) executed by Gorelal must be held to be legal and valid and the appellant having become entitled to the interest is of Gorelal in the suit-property. The question however whether the suit-property was the joint family property in which Gorelal and the respondent had equal interest or it was the exclusive property of Gorelal.