BASANTILAL Vs. SHUSHEELADEVI

JUDGEMENT

(1.) COMPARATIVE status of the parties: <FRM>JUDGEMENT_438_MPHT2_2007Html1.htm</FRM> For sake of convenience, the parties will be referred to as per their status in the original suit.

(2.) THE instant first appeal has been filed by defendant No. 1 Basantilal (since dead now through L. Rs.) impugning the judgment and preliminary decree dated 22-12-94 passed in favour of plaintiffs by Second Additional district Judge, Guna in Civil Suit No. 4-A/94.

(3.) THE facts in brief are, that the aforementioned suit was filed on 1st august, 1986 by the plaintiffs Smt. Susheela Devi, Anita and Meena. Anita and meena being minors, suit was filed on behalf of them by plaintiff No. 1 Susheela devi being their mother as guardian. Undisputably, the plaintiffs are the widow and daughters of deceased Gendalal Sahu, who was the brother of deceased defendant No. 1 Basantilal. Kanchanbai was the mother of Gendalal and basantilal and Marobai is the daughter of Kanchanbai. Kanchanbai was defendant No. 2 in original suit. By mistake, she could not be arrayed as respondent in this appeal. When during arguments, the attention of appellant was drawn, by way of amendment, she has been arrayed as above. It has been alleged in the suit that the disputed house which is situated in Ashok Nagar town, the rough sketch of the same has been enclosed with the plaint, plaintiffs are having 1/3rd share. This house was ancestral property of Puran @ Punna, who was the father of Basantilal and Gendalal. Puran was original resident of in village Magrana Tehsil, Guna. He was well to do person of the village, having his own house and agricultural land. On account of a dispute with some persons of the village, he left the village after disposing of his property and settled at ashok Nagar, where he purchased a plot out of the receipts of the afore-mentioned ancestral property and constructed a kachha house there on (hereinafter referred to as disputed house ). Plaintiffs are also residing in this disputed house. In the year 1980, the husband of plaintiff Susheela Devi died. After some time when she went to her parental home for rakhi festival then defendant No. 1 Basantilal, behind her back, got executed one Will dated 13th july, 1982 of the disputed house in his favour from Puran. At that time Puran was sick and suffering from paralysis also. He was about 85 years of age and was not mentally sound. It has also been alleged that her necklace of two tolas gold was also kept by defendant Basantilal. When plaintiff Shusheelabai returned from her parental home, she came to know about the Will. She obtained certified copy and filed this suit for declaration of her 1/3rd share in the disputed house, for partition of the same and claimed the possession of her share as per the partition. Relief of permanent injunction has also been claimed, that till disposal of the suit, defendant No. 1 Basantilal be restrained from dispossessing them from the disputed house and he be directed to return her necklace.