SMT. KIRAN Vs. SHIV KUMAR

JUDGEMENT

(1.) This appeal has been preferred against the judgment dated 11.10.1993 passed by Ist Additional District Judge, Meerut in Civil Appeal no. 302/1988 and judgment dated 21.1.1988 passed by 2nd Additional Civil Judge, Meerut in O.S. no.-117/1983.

(2.) The Original Suit no.-117/1983 was filed by plaintiff Dr. Shiv Kumar son of Musaddi Lal against his real brother Moolchand (defendant no.-2) and his wife Smt. Kiran (defendant no.-1). The plaint case in brief was that disputed house was joint family property of the parties. When there arose some dispute between co - owners, then they entered into oral family settlement in year 1975, in which it was agreed that plaintiff Shiv Kumar will get half share of disputed property, the defendant no.-2 Moolchand will get remaining half share of this property, and their father Musaddi Lal had relinquished his share of ownership of disputed property, who will have no ownership right in it. On the basis of this family settlement, a written memorandum dated 18.3.1979 was executed between the parties. Musaddi Lal died on 20.2.1980. Thereafter the plaintiff came to know that defendants claim that Musaddi Lal had executed any will in favour of defendant no.-1 Smt. Kiran. Since such will was illegal and ineffective because disputed property was already partitioned and said family settlement of year 1975 was acted upon between the parties, therefore plaintiff had asked him for cancellation of said will - deed. But when defendants declined, then plaintiff had filed original suit for cancellation of said will - deed on the ground that he is owner of half share, said will - deed could not be executed because of earlier family settlement and that at the time of execution of will deed Musaddi Lal was critically ill for long time and was not in his senses to execute such deed.

(3.) In their written - statement, defendants denied the plaint averments and submitted that disputed house was not joint family property, but it was owned exclusively by Musaddi Lal. There had never been any oral family settlement or execution of written memorandum of family settlement. Musaddi Lal was not ill and was always in his senses till his death. He had executed will - deed in his full senses before his death on 20.2.1980 at 5:20 p.m. Suit of plaintiff is liable to be dismissed.