KALAWATI Vs. SONPAL (DECEASED)

JUDGEMENT

(1.) Two properties are in dispute. One of the properties is a house situate over plot No. 996 in Mohalla Maharanapratap Nagar, Etah. The sale deed dated 30.4.1949 of the land of the said house is in the name of Smt. Kalawati. The other property which has been referred as second house is in the name of Munni minor daughter through her mother Smt. Kalawati as per sale deed dated 1.9.1961/22.9.1961.

(2.) The parties to the litigation are the heirs and legal representatives of late Khargi. On one side is Sonpal son of Khargi from his first wife and on the other side is Smt. Kalawati the second wife of Khargi and his daughter Smt. Munni from his second wife.

(3.) After the death of his father, the plaintiff Sonpal instituted an original suit No. 44 of 1974 against his step mother Smt. Kalawati and step sister Munni, claiming 1/3rd share in both the houses and for partition and possession of his share thereof, alleging that both the properties are 'benami' in the name of Smt. Kalawati and Munni. The real owner was his father and therefore, on his death he is entitled to 1/3rd share. The Court of first instance held that the first property is the exclusive property of Smt. Kalawati and is not 'benami'. The second property is the joint property of Smt. Kalawati and Khargi both and is 'benami' in the name of Munni. As Khargi had half share in it therefore, Sonpal has inherited 1/3rd share i.e. to the extent of 1/6th in the scond proprty. Against the judgment, order and decree so passed by the Court of first instance both the parties went in appeal. The lower appellate Court dismissed the appeal of Smt. Kalawati and Smt. Munni Devi but allowed the appeal preferred by Sonpal. The lower appellate Court held that both the properties are 'benami' in the name of Smt. Kalawati and Munni. The real owner was Khargi and, therefore, a decree in favour of Sonpal for partition of 1/3rd share was passed. Aggrieved by the judgment and order of the lower appellate Court and partly of the Court of first instance Smt. Kalawati and Smt. Munni have preferred this second appeal.