KASTURCHAND CHHOTMAL Vs. KAPURCHAND KEWALCHAND

JUDGEMENT

(1.) THIS is defendant's appeal against the judgment and decree passed by the learned Second Additional District Judge, Raipur. in civil suit No. 4-A of 1966, allowing respondent's claim for possession of the land described in Schedule 'c' of the plaint and. for partition and separate possession of one-half share in the property as shown in Schedule 'a' of the plaint, together with mesne profits.

(2.) CHHOTMAL Dassani and Kewalchand Dassani were brothers. These two brothers separated in the year 1912, and a registered partition deed was executed on 4-10-1912. Chhotmal Dassani had no issue. He, therefore, adopted the appellant Kasturchand, who was the eldest son of Kewalchand. The respondent Kapurchand is the younger son of Kewalchand. The parties are governed by the Banaras School of Hindu Law. After the partition, the branches of Kewalchand and Chhotmal became separate in all respects. Chhotmal executed a document dated 9-6-1952, styled as "vyavastha Patra". He died a few days thereafter, leaving his widow Sonibai and adopted son (the appellant ). These facts are not disputed.

(3.) CHHOTMAL, at the time of his death, left 81. 71 acres of land in village Rawanguda, district Raipur and two houses, one in the village Rawanguda and another in village Pipariya. as mentioned in Schedule 'a' of the plaint. Chhotmal had executed a Patta dated 20-2-1948. in the name of his wife, Soni Bai, in occupancy rights with respect to 29. 60 acres of land situated in village Rawanguda. district Raipur. The said land is shown in Schedule 'b' of the plaint. The case of the respondent (plaintiff) was that the property described in Schedule 'a' was the self-acquired property of Chhotmal. He executed a will dated 9-6-1952. styled as 'vvavasta Patra' according to which the property mentioned in Schedule 'a' was bequeathed in equal shares to the respondent and the appellant. The bequest was to take effect after the death of Chhotmal as well as the death of his widow. Sonibai, if she surviyed. As Chhotmal died in June. 1952, leaving his widow. Soni Bai. she entered into possession of the said property. Accordingly, she remained in possession of the said property till her death which took place on 30-6-1961. Thus, under the said will, executed by Chhotmal Dassani, the respondent claimed one-half share in the property shown in Schedule 'a'. In the alternative, the respondent claimed 36. 00 acres of land out of 81. 71 acres of land shown in Schedule 'a' on the ground that Mst. Soni Bai had made a gift of that land under a registered gift deed dated 25-1-1961. It was averred that Soni Bai. being the widow of late Chhotmal Dassani, succeeded to the property of her husband and her right, title and interest having become absolute, on the coming into force of the Hindu Succession Act. 1956, she was competent to make a gift of her share in those lands. It was further averred that Mst. Soni Bai, by virtue of the above gift-deed, also gifted 19. 06 acres of land shown in Schedule 'c' out of the land shown in Schedule 'b' which she was separately holding under Bhumiswami rights. The respondent, therefore, claimed one-half share in the agricultural land and the two houses shown in Schedule 'a' or in the alternative, 36 acres of land out of the land shown in Schedule 'a', plus 19. 06 acres of land as shown in Schedule 'c'. total 55. 06 acres, and mesne profits.