SHANKUTALA BAI Vs. RAJENDRA KUMAR AND OTHERS

JUDGEMENT

(1.) This is an appeal preferred under Section 96 of C.P.C., by the plaintiff/appellant against dismissal of Civil Suit No.3A/09 vide order dated 10 th February, 2011, which was submitted by her seeking declaration of title and permanent injunction against the respondents/defendants in respect of an ancestral property.

(2.) Briefly narrated the facts of the case are that plaintiff and respondents No. 2 to 4 are the daughters of late Shri Chronji Lal Agrawal whereas respondent No.1 is son of respondent No.2. The father of plaintiff and respondents No. 2 to 4 died on 28/4/07, after death of Smt. Kasturi Bai (his wife), in the year 1995. The father of plaintiff left behind him an ancestral house bearing No.828/20, situated in Dal Bazar Gwalior, which is the disputed property of the civil suit. The plaintiff claimed her 1/4 th share in the said property. It is alleged that the son of respondent No.1 by playing fraud with her executed a Will in his favour and restrained the plaintiff from enjoying the fruits of the property. He also started demolition as well as construction which compelled the appellant to file a suit in the civil court. Before the court she pleaded that the disputed property is ancestral one, which originally belonged to Kashiram and therefore her father was not legally authorised to execute a Will in favour of respondent No.1 on 9/1/1985. She, therefore, prayed to declare the said Will as null and avoid. By making further amendment in the plaint, she also disputed the alleged gift-deeds dated 7/2/95, 13/2/03 and 7/6/06 and prayed to the court to declare the same as ineffective. Alongwith the suit, an application under Order 39 Rule 1 and 2 was also moved for seeking temporary injunction against the respondents.

(3.) The defendants by filing written statements denied the claim of the plaintiff/appellant. It was submitted that the plaintiff prior to filing of the suit was having the knowledge about execution of the Will in favour of respondent No.1 and as per the Will, the distribution of the property amongst the parties was made. Pursuant thereto, the plaintiff also accepted her share and mutated her name. Therefore, the plea taken by her that she has no knowledge about the Will from before and came to know about the said fact only on 19/10/09 is absolutely wrong. On the other hand, she was expected to file the suit within a period of three years from the date of execution of the Will, which being not filed, is barred by time. The respondents also pleaded that the constructions were made as per the title and ownership over the property gifted vide registered deeds. Apart from this, the submission of the plaintiff that Chironji Lal had no right or title to execute the Will was denied in the light of the registered Will dated 13/3/1926 executed by Kashiram during his lifetime. Thus, according to the defendants, the plaintiff has no right to raise claim over the property and Chironji Lal alone had acquired rights and title over the property. Lastly, it was contended that the plaintiff filed the suit for declaration and permanent injunction while the relief prayed for shows that she also sought relief for partition. Since, no suit for partition was filed and no ad valorem court-fee was paid, therefore, on that count, the suit is not maintainable.