MADANKUWAR AND ORS. Vs. SUSHILA AND ORS.

JUDGEMENT

(1.) The respondent, plaintiff, Smt. Sushila wife of Gyanchand Kataria, filed Special Civil Suit No. 129 of 1987 in the Court of Civil Judge [Senior Division], Chandrapur, for a declaration, partition and separate possession. In the suit, she stated that Jethmalji, who died in November, 1956, left behind his widow Smt. Heerabai, her step -son, Rekchandji. Smt. Heerabai died on 30th June, 1983, and was a member of Hindu Joint Family with Rekchand, possessing undivided immovable and movable properties. For the purpose of partition, Schedules -A and B were the properties, immovable and movable attached with the plaint. Rekchand died on 20th January, 1980, leaving behind his widow, Smt. Madankunwar and three daughters, namely Smt. Sharadkunwar, Smt. Shantakunwar and Smt. Sushila, the plaintiff. Rekchand had no son and, therefore, the defendant No. 4 Deepakkumar was adopted as a son, for which plaintiff, Sushila, had a reservation.

(2.) The defendants having filed their Written Statement and having disclosed about the family settlement, Memorandum of Family Arrangement etc., the plaintiff filed an application for amendment to the plaint, and amended the plaint by inserting paragraphs 4 -A to 5 -C, which were duly replied by amending the respective paragraphs in the Written Statement by amendment. In these amended paragraphs, the plaintiff having been confronted with the pleadings in the Written Statement about the family arrangement etc., denied that there was any partition on 9th January, 1983 or that the same could be admissible for want of registration. In the amended paragraphs, it was contended that Heerabai inherited half share in the property left by Jethmal with Rekchandji. It was only from one -half share of Rekchandji, the share of plaintiff was separated by family settlement; but one -half share of property of Heerabai remained intact. Therefore, the plaintiff was entitled to claim share from Heerabai's estate apart from Rekchandji's share. Heerabai had 3/5th share in the total property. Her share could not be diverted in the partition during her lifetime and her 3/5th share was intact and undivided at the time of her death and, therefore, the stand taken by the defendants that she had no share at all was false and baseless. It was then stated that a Lease -Deed dated 30th July, 1982 about the properties of her share in the joint family properties was registered by Heerabai in favour of Sushila and, therefore, the plaintiff was entitled to enjoy the fruits of the share of the properties of Heerabai against the Lease -Deed. The plaintiff then stated that due to the Will executed on 18th October, 1981 in her favour by Smt. Heerabai, she was entitled to half share in the joint family properties. The plaintiff then averred that Heerabai was not pulling on well with Rekchandji and his wife Smt. Madankunwar, and had demanded partition from him; but due to the death of Rekchandji, the partition was not effected. As to the Will that was brought forth by the defendant Nos. 1 to 4 in their favour, the plaintiff contended that the Will was never executed in their favour and was, thus, challenged as a fabricated document. As to the partition arrangement dated 9th January, 1983, it was stated by the plaintiff that the same was due to misrepresentation of facts to Heerabai and force brought on her. In fact, she had never intended any partition and that she had even no right in law to partition the estate. Her thumb impression was obtained by misrepresentation and she was not willing to execute the document. She had, therefore, sent notices to defendants and others and also given a copy thereof to Police Station, Chandrapur and husband of the plaintiff, i.e., Gyanchand, was consulted by Heerabai in the matter. The amended pleadings were duly replied by the defendants by denying adverse allegations. The parties filed many documents. The suit thereafter went for trial. The Trial Judge recorded the evidence and finally found that Heerabai had undivided half share in the suit properties, plaintiff as well as defendants both failed to prove their respective Will dated 18th October, 1981 and 26th May, 1983 and, thus, rejected both the Will. The Trial Court further found that the plaintiff could not inherit any share in the properties of Heerabai. The suit was not barred by limitation. The defendant No. 4, Deepak, was a duly adopted son of late Rekchand by defendant No. 1, Madankunwar as per consent of the relatives. The plaintiff was not entitled to any share in the property and consequently, the Trial Court dismissed the suit.

(3.) The plaintiff filed an appeal before the District Judge, Chandrapur, which was registered as Regular Civil Appeal No. 60 of 2012. The Lower Appellate Court allowed the appeal and decreed the suit by setting aside the Judgment of the Trial Court. It, however, rejected the Will dated 18th October, 1981, pressed into service by the plaintiff, and further held that she was entitled to partition and separate possession of 1/4th share in the suit properties described in Schedules -A, B and C, while defendants were entitled to partition and separate possession of 1/4th share in those properties. It this Judgment, which is under challenge in this Second Appeal. The respondent No. 1 has also filed a Cross -Objection No. 11 of 2016 to assail the findings.