VIDHYA DEVI Vs. KANTICHANDRA

JUDGEMENT

(1.) The First Appeal under Sec. 96 of Code of Civil Procedure has been filed feeling aggrieved by the judgment and decree dtd. 3/7/1999 passed in Civil Suit No. 3-A/1989 by Second Additional District Judge, Neemuch whereby the suit of the plaintiff/appellants have been decreed.

(2.) The facts in nutshell reveal that the plaintiff before the trial Court filed a suit for declaration of title, possession as well as for grant of mesne profits, in respect of suit property i.e., House No. 537, situated at Ahinsa Path, Neemuch. It was pleaded by the plaintiff in his plaint that his father Ratanlal, who expired on 15/1/1983, at the age of 88 years, has purchased a House and during his life time, executed a Will on 3/7/1980 in respect of the house in question. As per the Will, the house was given to plaintiff Kantichandra as well as to Daulatram. As per the Will, no portion of the house was given to Gendalal. The plaintiff further pleaded that he was serving the Indian Railways and, therefore, he permitted his brother Gendalal to reside in the house which was subject matter of the Will. It was also stated by him that his father gave gold to Gendalal and after executing the Will, it was kept with one Shrinivas Jaju s/o Surajmal Jaju and after the death of Ratanlal when some ceremony (Pagadi Sanskar) took place on 26/1/1983 the Will was also brought to the notice of everyone present during the ceremony. The plaintiff further pleaded that after his re-tirement, as he was not having any house, he wanted to reside in the house in question and, therefore, gave a notice to Gendalal, however, Gendalal refused to vacate the house and in those circumstances the plaintiff was forced to file Civil Suit. In the present case, the plaintiff was claiming title on the basis of Will dtd. 3/7/1980.

(3.) A Written Statement was filed in the matter and the defendant Gendalal has admitted that plaintiff Kantichand is his brother. Gendalal also admitted that he was a Lawyer by profession and his mother expired on 8/7/1975. Gendalal came up with a plea that the house in question was the ancestral property and an oral partition took place during the life time of Ratanlal and the property which was in the name of Gendalal, was given to the legal heirs of Omkarlal. He has also stated that the house in question was purchased in 1924 in the name of Ratanlal as well as Omkarlal and by virtue of oral partition, he has given the property, which was in his name to the legal heirs of Omkarlal only to ensure that they do not claim any share to the house which was purchased in 1924 in the joint names.