SANTOSHCHANDRA Vs. GYANSUNDARBAI

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs from the judgment and decree of the Court of Additional District Judge, Betul dismissing their suit for a declaration and injunction.

(2.) THE plaintiffs are the sons of Tekchand respondent No. 2. Tekchand was the adopted son of Jethmal. Mst. Jhunnobai, who was the original defendant No. 1 was the widow of Jethmal. Jhunnobai died during the pendency of the suit and on her death her daughter Mst. Gyansundarbai respondent No. 1 was brought on record as her legal representative. Mst. Tarabai, defendant-respondent No. 3 is the wife of Tekchand.

(3.) JETHMAL died in the year 1947. During his lifetime he had acquired 3 houses. Out of them one was sold by him. So far the facts are not in dispute. The case of the plaintiffs is that the relations between Tekchand and Smt. Jhunnobai being strained, Jethmal made a family arrangement in June, 1946. Under this arrangement he gave a sum of Rs. 12,000/- to Mst. Jhunnobai and she was also given right of residence in the family property. The rest of the property was allotted to Tekchand and the plaintiffs in lieu of their share in the property. Thus, according to the plaintiffs, after this arrangement was made Mst, Jhunnobai had no interest left in the family property. Jhunnobai, however, filed a suit for partition against Tekchand, namely Civil Suit No. 34-A of 1959. A preliminary decree was passed in her favour on 23-7-1962 and subsequently it was made final. It is not disputed that the said decree was executed and Jhunnobai and Tekchand were placed in possession of their shares under the decree. On 14-3-1963 the plaintiffs filed this suit for a declaration and injunction contending that they were not bound by the decree of partition in Civil Suit No. 34-A of 1959 as they were not parties thereto. During the pendency of the suit the plaintiffs made an application for deleting the relief of injunction when the question of Court-fees being inadequate was raised by the defendants. The trial Judge rejected the application and after dismissing the suit on merits, directed the plaintiffs to pay additional Court-fees of Rs. 1055/ -. Being aggrieved thereby the plaintiffs have filed this appeal.