ATUL SHRIVASTAVA Vs. SMT. CHANDRAKANTA AND OTHERS

JUDGEMENT

(1.) This second appeal has been filed by the appellant being aggrieved by judgment and decree dated 20th May, 2011 passed by the learned Court of District judge, Ashok nagar, in Civil Appeal No. 3-A/2011 whereby confirming the judgment and decree dated 19.11.10 passed by the Court of 1st Civil Judge, Class I, Ashok nagar, in Civil Suit No. 19-A/2009.

(2.) It is the case of the plaintiff/appellant that he is son of Shri Radharacharan Shrivastava. Radhacharan Shrivastava was son of Haricharan Shrivastava and Haricharan Shrivastava had two sons, namely Radhacharan Shrivastava and Kailash Narayan. Kailash Narayan was married to Smt. Chandrakanta, defendant No. 1, but they had no children, whereas plaintiff/appellant is son of Radhacharan. It is his case that his uncle Kailash Narayan had executed a Will in relation to the ancestral property on 9.12003 and handed over possession and ownership to the plaintiff pertaining to his ' share in the ancestral property. Since he was busy in business and his mother had died prior to death of Shri Kailash Narayan and thereafter he got busy in performing his own marriage and then he was blessed with a child who was suffering from certain ailments, he could not act upon such Will and when he discovered in the year 2008 that defendant No. 1 got mutation of the said land in her favour and sold it in favour of defendant No. 2, then he filed the suit. Learned counsel for the appellant submits that since he was only male successor of Late Kailash Narayan, therefore, he had executed a Will in favour of the plaintiff.

(3.) It is an admitted fact that Shri Kailash Narayan Shrivastava died on 14.2.2004 and thereafter for the reasons mentioned above he could not get the mutation in his favour and taking advantage of such facts, defendant No. 1 i.e. his aunt, sold the suit property in the name of defendant No. 2.