LAWS(MPH)-1997-7-62

RAMESH VERMA Vs. LAJESH SAXENA

Decided On July 31, 1997
RAMESH VERMA Appellant
V/S
LAJESH SAXENA Respondents

JUDGEMENT

(1.) These three first appeals (F.A. No. 29, 30 and 31 of 1991) arise out of Judgment and decree dated 31-1-91 passed by the Fifth Additional Judge to the Court of District Judge, Gwalior. As all the appeals arise out of the same judgment they have been heard together and are being disposed of by this common judgment.

(2.) Smt. Lajesh Saxena filed a suit for partition and separate possession of her 1/8 share in the property in dispute. She also prayed for mesne profits according to her share in the usufruct of her property. The admitted pedigree is as follows :

(3.) Defendants no. 1 and 2, namely, Ramesh Verma and Smt. Prabhavati, filed a joint written statement contesting the plaintiff's claim. They alleged that the plaintiff had no right in the disputed property as such she had also no right to get any share separated. The allegation that Jagan Verma executed any sale in favour of Smt. Prabhavati is incorrect. It was collusive allegation. In reality the property was mortgaged. The plaintiff is the daughter-in-law of Prabhavati. There was no question of execution of any sale-deed. A case was pending in the Court in that regard. Jaydevi had executed a will in favour of defendant no. 3 and 4 on 7-12-69 and as such the claim that the plaintiff got any right after the death of Jaydevi is incorrect. The plaintiff had no right to claim mesne profits from the Karta of the family. It was a joint Hindu family and joint family consisted of widow, two minor sons and a minor daughter. Arrangements for the education and maintenance of these children had to be made which may cost about Rs. 2,00,000/-. There was a charge over joint family property with respect to loan incurred in connection with the plaintiff's marriage. So long as it was not paid up the plaintiff had no right to claim partition in case she is found to have any share. As defendants' father died in 1967 and at that time there was joint Hindu family he had 1/6 share only and thus the plaintiff could get 1/10 share out of 1/6 share i.e. a total share of 1/60. That share too could not be partitioned so long as the other members of the joint family did not demand partition. Defendant no. 3 and 4 in their separate written statement more or less supported the factual averments made by aforesaid defendants no. 1 and 2. They alleged that the plaintiff had knowledge of the will executed by Jaydevi in their favour on 7-12-69. The plaintiff had separated from the joint family. she had no right in the co-parcenery property. The plaintiff was also liable to the liabilities which exist with respect to the property in dispute. Defendant Sanjeev Kumar supported the plaintiff's claim and alleged that he is the son of Smt. Prabhavati's daughter Smt. Lajesh Saxena, the plaintiff. Smt. Prabhavati executed a will in his favour on 22-5-1984 which was the last will and as such he also became co-owner.