SITA RAM Vs. GAURI SHANKAR

JUDGEMENT

(1.) THIS is a plaintiffs' second appeal in a suit for possession over a room shown by letters A, B, C, D on the upper floor of a house situate at Gorakhpur, by ejectment of first defendant from that room. The plaintiffs' case was that his father Ram Saran purchased a house under a deed of sale dated 18th August, 1925 and constructed a double storeyed building in its place, that Ram Saran had two wives and that the plaintiff-appellant Sita Ram and the defendant-respondent Gauri Shankar, are the sons of his second wife; that Gauri Shanker's relations with Ram Saran were not cordial and they just managed to somehow live together. Gauri Shankar was married in the year 1944-45. His wife was turbulent of nature and always quarelled with her mother-in-law, and Gauri Shankar was accordingly separated in the year 1956 and started living with his in-laws in another mohalla and then shifted to Basti and again came back to live at Gorakhpur but in a different mohalla. The plaintiff-appellant, however, always lived with his father Ram Saran and served him well. The father bequeathed the said house of which the room in suit formed part, by a Will dated 23rd January, 1961 to the plaintiff-appellant. The father died thereafter on the 9th December 1969. The plaintiff-appellant performed his last rites and on the date after the tenth day of the funeral obsequies of the father, the defendant Gauri Shankar came to the house and occupied the room in suit after throw ing away the plaintiffs' goods. A report was lodged with the City Magistrate but the defendant did not vacate the room, hence the suit. Defendant Gauri Shanker pleaded that the house in suit was joint family property, having been purchased by Ram Saran's father Bhagwat, though in the name of Ram Saran out of joint family funds. Bhagwat had 30 bighas of agricultural land in three villages and had sufficient income therefrom to provide the money for the purchase of the house. Bhagwat was also a goldsmith by occupation and earned income therefrom. It was he who built double storeyed building. Bhagwat and Ram Saran both died in a state of jointness. It was further pleaded that Ram Saran had no right to bequeath the property by Will and the Will was obtained by the exercise of undue influence by the plaintiff, taking advantage of the fact that the defendant Gauri Shanker used to live away. The due execution of the Will was also denied and it was said that it was wrong and fictitious and did not affect the defendants' rights. It was alleged that the defendant used to live in the house in question whenever he came to Gorakhpur or was posted there and it was wrong to say that he had shifted to his in-laws house or elsewhere. Apart from the issues relating to the technical pleas of under valuation, deficiency in court fees and want of jurisdiction of the Court to try the suit, the first issue on which the parties went to trial was whether the house in suit was ancestral and joint property of the parties or the self acquired pro- property of the parties' father ? and the second issue was whether the father of the parties bequeathed the property in suit in favour of the plaintiff and had executed a deed of Will and if so whether it was valid ? Another issue was whether the defendant had entered into possession of the property on 19th December, 1969 as alleged by the plaintiff and if so, its effect ? The Trial Court decided the issue in favour of the plaintiff and decreed the suit. On appeal the lower appellate Court held, on a consideration of the evidence on the record, that the house of which the room in suit formed part was joint family property, that the Will was procured by the exercise of undue influence and was of no avail to the plaintiff and further that the defendant had been in possession of the room in question since before. With these findings the lower appellate Court dismissed the suit. The first question which arises in this appeal is whether the property was joint family property. Having been taken through the judgment of the lower appellate Court I agree for the reasons given therein that the house of which the room in suit forms part was joint family property. The neces sary nucleus was there and it cannot be said that the mere fact that the house was purchased in the name of Ram Saran, by the father, when the grand father Bhagwat was still alive and looking after the affairs of the family and managing them, was sufficient for holding that the property was the self acquired property of Ram Saran. In all the facts and circum stances of the case it has to be presumed that it must have been acquired from joint family funds. The next question about the due execution of the Will does not, in my opinion, arise in the case, inasmuch as Ram Saran did not leave him survi ving at his death on 9th December, 1969, any female relative specified in Class I of the Schedule, or a male relative specified in that class who claims through such a female relative, and, therefore, the proviso to Section 6 of the Hindu Succession Act does not come into play and the house of which the room in suit forms part, devolved by survivorship upon the surviving members of the coparcenary and not in accordance with the Hindu Succes sion Act, that is, not by testamentary or intestate succession under the Act. That being so Ram Saran could not have made a valid testamentary disposi tion of the house which was joint family property, or his interest therein. The appeal fails and is dismissed with costs.