SHANTI DEVI Vs. PHOOLMATI

JUDGEMENT

(1.) Defendant number one Phoolmati was plaintiff before the trial Court and she had filed a suit for declaration of title and posses- sion over land measuring 16.28 hectares situated in village Thurua Tehsil and District Singrauli, (M.P.). The property in question is an- cestral property of late Suryavansh Pathak. Plaintiff Phoolmati and Shanti Devi are only daughters of Late Suryavansh Pathak. It is averred by the plaintiff that his father has owned share in the prop- erty of his father namely Ambika Prasad. After death of Suryavansh Pathak land was entered in the name of wife of Suryavansh Pathak namely Mst. Raniya Devi. She died on 21/1/1998. Tehsildar vide its order dated 29/7/1999 entered the name of defendant no.1 in the revenue records on the basis of Will dated 15/12/1997 of Mst. Ran- iya Devi. Plaintiff filed a revision against order of mutation, however, she was assured that she will be given share in ancestral property, therefore, she did not prosecuted revision case. Plaintiff got cause of action to file the civil suit when she was stopped from cultivating her share of land by defendant no.1. It was further averred by the plaintiff that Mst. Raniya Devi cannot execute a Will in respect of whole of ancestral property. She can do Will only in respect of her property that is 1/3rd of the ancestral property of the deceased Suryavansh Pathak. Will of Mst. Raniya Bai so for as it affects the share of plaintiff is null and void.

(2.) As per defendant's case, the suit property is self acquired property which was allotted by the seller Singrauli vide allotment or- der dated 30/3/96 to Mst. Raniya Bai. Plaintiff is not having posses- sion over any part of land in question. Defendant used to live with her mother Mst. Raniya Bai and take care of her and she was doing agriculture on it and is in possession of land in question.

(3.) Learned trial Court after considering that the deposition of witnesses and evidence available on record held that suit land was ancestral property of Late Suryavansh Pathak. Plaintiff is entitled to half share over the property of Suryavansh Pathak and also entitled to get possession. It was further held that Will dated 15/12/1997 is null and void. Learned trial Court further held that suit filed by the plaintiff is within limitation. Cause of action arose on 15/11/2012 and on 20/10/12 and suit was filed on 1/1/13. It was also held by the trial Court that defendant was unable to prove that this Court does not have jurisdiction to hear the suit. On basis of aforesaid findings, the suit of the plaintiff was decreed.