CHUNNI LAL Vs. DULLAR & ORS.

JUDGEMENT

(1.) THE plaintiffs filed a suit for partition claiming 4/21 share in the property in suit. The plaintiffs contended that the property in question originally belonged to Shiv Dihal which was inherited by his three sons Bhola, Garib and Mangru in equal shares. Bhola had three sons from his first marriage through Sundari, namely, Sandlu, Tunnu and Chunni Lal and three sons from his second wife Dullar, namely, Munni Lal, Mehi Lal and Pannal Lal. Bhola died on 7-4-1961. It was alleged that defendant No. 1 Garib had 1/3 share, defendant No. 2 Mangru had 1/3 share and defendant Nos. 2 to 5, namely, Sandlu, Tunnu and Munni Lal had 3/21 share in the property of Bhola whereas the plaintiffs had 4/21 share. On these allegations the plaintiffs claimed partition to the share of 4/21 in the property in dispute. During the pendency of the suit, Sandlu and Tunnu died and the plaint was amended and the plaintiffs also claimed a portion of the share of Tunnu claiming that the plaintiffs are now entitled for 29/105 share in the property of Bhola.

(2.) THE defendant Nos. 3 to 5 filed a joint written statement resisting the claim of the plaintiff and contended that Bhola never married Dullar, plaintiff No. 1 and that Dullar, was the wife of Algu Dhobi and that the remaining plaintiffs, Munni Lal, Mehi Lal and Panna Lal were in fact the sons of Algu and were not the sons of Bhola and therefore, the question of the partition of the property or giving the plaintiffs any share from the property of Bhola did not arise. The defendant Nos. 1 and 2, namely, Garib and Mangru, being brothers of Bhola, also filed their written statements denying the plaint allegations and only admitted that the property originally belonged to Shiv Dihal and upon his death developed in equal shares in the name of his three sons. It has come on record that after filing the written statement, the said defendants did not contest the matter.

(3.) AGGRIEVED by the decision of the trial Court, the defendants filed an appeal which was also dismissed and the judgment of the trial Court was affirmed. The defendants, being aggrieved by the aforesaid decision have filed the present Second Appeal before this Hon'ble Court which was admitted on the following questions of law : 1. Whether even on the facts alleged by the plaintiff respondents, the determination of their share to the extent of 29/105 in the suit house is not in accordance with law ? 2. Whether the shares of Sandlu and Tunnu who died during the pendency of the suit, real brothers of defendant appellant would devolve on appellant and on plaintiff respondent Nos. 2 to 4 (step brothers) in equal shares ? 3. Whether the finding that Smt. Dullar is legally wedded wife of Bhola and that plaintiff respondent Nos. 2 to 4 are her sons by Bhola is vitiated in law ?