RAJESHWARI DEVI Vs. LAXMI DEVI

JUDGEMENT

(1.) This second appeal is at the instance of one of the defendants in a suit for partition. The concerned suit was brought by Ramshree Devi, widow of Devi Prasad and the suit was registered as Suit No. 34 of 1977 and was heard by the Second Additional Civil Judge, AHgarh. The undisputed facts indicate that the suit-property originally belonged to Badri Prasad. After his death his son Devi Prasad and grand-son Ramesh got the property in equal shares as surviving co-sharers of a coparcenary property.

(2.) It was case of the plaintiff that she was a widow of Devi Prasad, while Ramesh was the son through a pre-deceased wife of Devi Prasad. It was stated that due to dispute between, the father and the son regarding management of the suit-property they had agreed in writing for separate possession of different parts of the property. It was stated that there was no partition by rretes and bounds and only separate management of the property was agreed upon. Devi Prasad executed a Will in favour of Ramshree and bequeathed his share in the suit property to her. He died in 1975 and Ramshree on the basis of the Will became the owner of his portion of the suit-property and was in occupation thereof in that capacity. Ramshree died during the pendency of the suit and her two daughters through Devi Prasad came on record in her place. Ramshree and her step-son, Ramesh, were not pulling on well with each other and, accordingly, a partition was sought for. In addition to Ramesh and his sister Rajeshwari there were other defendants who were tenants in the suit property. Ramesh was realising rent for more than share and accordingly a prayer was made to ask Ramesh to render account.

(3.) Ramesh Chandra contested the suit and accepted that the property in question was his paternal property, Devi Prasad being his father, Badri Prasad the grand-father and the plaintiff, Ramshree, the stop-mother. It was stated that the 1st wife of Devi Prasad, namely, Ganga Devi, had two children, Ramesh Chandra and Rajeshwari (present appellant). Devi Prasad married Ramshree only after the death of Ganga Devi and through Ramshree had two children, both daughters, who are the present substituted plaintiff-respondents. It was stated that on the death of Badri Prasad his son Devi Prasad and grand-son Ramesh Chandra got the family property on survivorship. It was therefore the ancestral property of Devi Prasad and Ramesh Chandra and an arrangement Was agreed upon between Devi Prasad and Ramesh Chandra to facilitate realisation of rent from the tenants, but there was no dispute between the father and the son nor did they ever live separately. There was no partition between them. It was stated that Devi Prasad had never executed a Will in favour of Ramshree. It was stated further that the so-called Will was agot-up one. The right of Ramshree and her two daughters on the suit property to the extent of share was denied. It was stated that Ramshree had only 1 /10 share in the suit property. It was further stated that Devi Prasad was ailing and had lost physical ability and mental balance and had no testamentary capacity to execute a Will. He was taken away by Ramshree on the pretext of treatment and his signature was obtained with the connivance of the scribe of the Will. In an alternative defence it was stated that even if the Will be acted upon, and it is accepted that Ramshree got the share of Devi Prasad, equalling share in the suit property, on her death her share would be equally inherited by Rarriesh Chandra, Rajeshwari and the two substituted plaintiffs. It was stated that the substituted plaintiffs, being female heirs to Devi Prasad, could not have claimed partition of the residential house under Section 23 of the Hindu Marriage Act.