ADARSH AGARWAL Vs. MANJU AGARWAL

JUDGEMENT

(1.) RAJESH Tandon, J. 1. Heard Sri Sarvesh Agarwal coun sel for the appellant and Sri Deepak Sharma counsel for the respondent no. 1. 3. Present appeal has been filed against the judgment and decree dated 1. 9. 2003 passed by trie Additional Dis trict Judge, Nainital in Civil Suit No. 165 of 1996. 3. Briefly stated the plaintiff Smt. Manju Agarwal has filed a suit for division and for possession over 1/3 share of the property in suit. The plaintiff has alleged that the father of the plaintiff and defendant no. 1 and 2 late Sri Saligram was a rich person and was doing business in the name and style M/ S Ratan Lal Kishan Lak. He died in the year 1962 and has left behind the plain tiff, defendant no. 1 and 2 and his wife Smt. Premwati. According to the plain tiff all the above legal heirs of the de ceased Saligram had 1/4 share in his property. Smt. Premwati widow of Sri Saligram also expired on 5. 10. 1984 and on her death the share of the plaintiff in the property of late Sri Saligram has become 1/3. 4. According to the plaint case ap pellant no. 1 and his wife appellant no. 2, who is the son of the sister of Smt. Premwati (mother of the plaintiff) started living in the house of late Sri Saligram some time before the death of Smt. Premwati. The house is situated in Sadar Bazar, Haldwani and its Munici pal number is 1141. Defendants no. 3 and 4 (appellants) have no title or in terest in the house in suit. The plaintiff has one third share in the property and after division of the property possession over l/3rd share has also been prayed by the plaintiff. 5. Defendant no. 4 (appellant) has contested the case and has filed written statement. He has submitted that he was living with late Sri Saligram since the life time of late Sri Saligram and after the marriage of appellant no. 1 his wife also started living with late Sri Saligram in the disputed house. Sri Saligram died on 3. 3. 1964. After his death his wife Smt. Premwati has suc ceeded as his sole heir after his death. Smt. Premwati also died on 5. 10. 1984. He denied that there was any Will by Smt. Premwati in favour of defendant no. 3 (appellant no. 2 ). The defendant-appellants have also alleged that Smt. Premwati had executed a gift deed of the disputed house on 26. 2. 1979 in favour of the defendant no. 4 (appellant no. l ). The entire house is in possession of the appellants from the time of Sri Saligram and the appellants and they have also matured their rights by adverse posses sion. 6. The defendant-appellant no. 1 has submitted that late Sri Saligram has arranged his marriage also and he treated the appellant no. 1 as his son. The plaintiff and defendant no. 1 and 2 are the married daughters of late Sri Saligram and they are living in their in-laws houses and they are not in posses sion over the house in dispute in any way. The disputed' house was not the ancestral property of late Sri Saligram but the appellant no. l had constructed the same from his own funds. 7. On the pleadings of the parties following issues were framed : 1. Whether Smt. Premwati mother of the plaintiff was legally entitled to transfer the property in dispute to defendant no. 4 by way of gift deed? If not, its effect?

(2.) WHETHER the plaintiff and de fendants no. 1 and 2 are own ers, entitle and in possession over the property left by their father? If so, its effect?

(3.) WHETHER the suit is barred by estoppels?