KAILASHNARAYAN SHARMA Vs. BHAGIRATH ALIAS NEKRAM

JUDGEMENT

(1.) THIS appeal by plaintiffs is directed against the judgment and decree dated 24/12/1999 in Civil Appeal No.15/1999 confirming the judgment and decree dated 11/4/1980 in Civil Suit No.13 - A/1972.

(2.) FACTS necessary for disposal of the appeal are in narrow compass. Undisputedly, the properties described/ detailed in scheduled A and B appended to the suit was of the ownership and possession of one Gangaram. After his death Gangaram was survived by his four sons, namely, Ramnath, Pitambar, Lakhpat and Pahlwan and they in turn succeeded to the properties left behind by Gangaram. No partition has been effected amongst the sons of Gangaram and all heirs jointly possessed the suit properties. It is also not in dispute that out of the four brothers, Lakhpat and Pitambar remained unmarried. Ramnath and Pitambar were living jointly. Since Lakhpat died, therefore, his share of the property devolved upon remaining three brothers, hence, his each brother had 1/3rd share in the property. Ramnath had two daughters, namely, Pacho and Kanthshri. Ramnath died in Samvat 1999 (year 1942). Both the daughters were married. Harvilas is the husband of Kanthshri and plaintiffs are sons of Kanthshri. Plaintiff filed suit on 3/4/1968 on the premise that Ramnath was in possession of 1/3rd of the estate left behind by Gangaram. Before his death Ramnath had made an oral Will to the effect that Pitambar and Pahalwan shall look after his share of property, do cultivation and harvest crops. 1/3rd income therefrom shall be given to his both daughters, after his death. As such, in revenue records the property, fallen to the share of Ramnath, was mutated in the name of Pitambar and Pahlwan. It is further alleged that on 16/5/1967 Pahalwan had executed two sale deeds in favour of defendants no.1 to 4 in respect of 1/3rd share of Ramnath as a result defendants no.1 to 4 came in possession over the agricultural land and the residential house. This led to filing of the instant suit.

(3.) DEFENDANTS filed written statement denying plaint allegations. It is submitted that there was no partition amongst the four sons of Late Gangaram. The suit property was jointly held by all four sons. It is further denied that there was an oral Will allegedly executed by Ramnath in favour of his two daughters, namely, Pacho and Kanthshri as claimed by plaintiffs. It is further submitted that plaintiffs claiming 1/3rd share of Ramnath in the suit through their mother Kanthshri have no legal right to sustain the claim. It is submitted that there was no partition amongst four brothers. After the death of Lakhpat, the entire estate left behind by Gangaram was jointly held by three brothers, namely, Ramnath, Pahalwan and Pitambar and they were doing cultivation on the agricultural land jointly. Ramnath died in 1942 and, therefore, as per the Hindu Law, Pahalwan and Pitambar succeeded to the estate left behind by Ramnath by survivorship and, therefore, Pitambar and Pahalwan had half share each in the entire share left behind by Gangaram.