BRIJESH KUMAR Vs. DISTRICT JUDGE AZAMGARH

JUDGEMENT

(1.) HEARD Sri Kunal Ravi Singh and Shri Sharad Malviya, the learned counsel for respondent.

(2.) THE plaintiff Smt. Rambachchi Devi instituted a suit for maintenance and partition in respect of certain movable and immovable properties against the defendants, who were the children of her husband from the first wife. It was alleged that the defendant No. 1 was not maintaining her, and therefore, the suit was instituted for the reliefs claimed by her. THE defendants contested the claim and submitted that the plaintiff had only a limited right under a Will dated 15.5.1967, executed by the husband of the plaintiff, and therefore, she was not entitled either for maintenance or for partition of the properties. THE trial court, after considering the material evidence on record, dismissed the suit for maintenance, but decreed the suit for partition of the houses holding that the plaintiff was entitled to 1/16th share. THE said decree became final and was not challenged by the defendants. Consequently, the plaintiff filed an application for the preparation of a final decree. During the pendency of the execution proceedings, the plaintiff died. THE petitioner, being the adopted son of the plaintiff, by virtue of a registered adoption deed, filed an application under Order XXII, Rule 3 of the Code of Civil Procedure for substitution. This application was opposed by the defendants on the ground that the plaintiff had a limited right in the property in dispute in her life time under the Will, and upon her death, the property devolved upon the defendants, and therefore, the petitioner was not entitled to be substituted. THE executing court rejected the application for substitution, against which, the petitioner filed a revision which was also dismissed. THE petitioner, being aggrieved by the said order, has filed the present writ petition.

(3.) UPON considering the matter, this Court is of the opinion that the impugned orders cannot be sustained and the submission of the learned counsel for the defendants does not hold any merit. At the outset, from a perusal of the decree of the trial court, the Court finds that the property devolved upon the plaintiff under the Will was not prayed for in the suit filed for partition. A finding has been given by the trial court that the property involved in the suit was different from the property involved under the Will. A finding has been given that the property involved under the Will had been left out by the plaintiff, and on that ground, the trial court declined to grant a decree for maintenance. In the light of this finding, the finding of the executing court that the plaintiff had a limited right in the property in question is against the material evidence and the said finding is based on surmises and conjectures. The court below, without examining as to whether the property in the Will was the same as the property claimed in the suit, has rejected the substitution application.