BALKRISHNA DAS Vs. RADHA DEVI

JUDGEMENT

(1.) The defendant has come up in appeal against the judgment of III Additional Civil Judge, Varanasi dated 20-8-1979. The plaintiff's suit for partition and for cancellation of a will has been decreed by the Court below.

(2.) How the parties are related can be better appreciated from the pedigree as set out below :

(3.) The suit was filed by the widow of Ratan Lal and one of his minor sons Ashok Kumar for separation after partition of their 1/3rd share in House No. K- 11/144 and 3/8th share in another house No. K-11/15. It is alleged that property No. K-11/15 was purchased by Radhey Lal through a sale deed dated 9-5-1918 (Ext. 6). Radhey Lal gifted it to his wife and three sons, to each equally. through a registered gift deed dated 16-8-1921 (Ext. 7) each getting 1/4th share therein. The other house K-11/14 was purchased under separate sale deeds 2/3 rd share therein was purchased from Narain Singh and others on 1-8-1923 (Ext. 8) and the remaining 1/3rd from one Ganeshi vide sale deed dated 13-7-1923 (Ext. 9). The sale deeds were in the name of the sons of Radhey Lal, of whom only Bal Kishan was then major, other two being minors. The plaintiffs case is that by a sale deed dated 28-7-1933 Mohan Lal sold his 1/4th share in House No. K/11/15 and 1/3rd share in K-11/14 to his mother who thus acquired 1/2 share in House No. K- 11/15 and 1/3rd share in House No. K-11/14. On the same date viz. 28-7-1933 she executed a Will in favour of Ratan Lal bequeathing her entire interest in the two properties including what she had become entitled to as a result of Mohan Lal's sale deed. These two documents are Exts. 10 and 11 respectively. Mohan Lal committed suicide on 3-3-1945 and Smt. Annapurna Devi also departed from this world in Feb., 1955. On her death, Ratan Lal became the owner of 2/3rd share in House No. K11/14 and 3/4th share in House No. K- 11/15. Kaushal Kumar, one of the sons of Ratan Lal had also died during his lifetime on 3-11-1968. His widow and two sons are defendants 3 to 5 while the third son of Ratan Lal is plaintiff No. 2. On the death of Ratan Lal his interest in the two houses devolved on the two plaintiffs and on defendants 2 to 5 equally. Accordingly the two plaintiffs became entitled to 3/8th share in House No. K-11/15 and1/3rd share in House No. K-11/14. This is how the plaintiffs claimed partition of their share in the disputed property. It may be mentioned here that out of the share of Ratan Lal defendants 2 to 5 also got 3/8th and 1/3rd share in House Nos. K-11/15 and K-11/14 respectively.