KAURI Vs. GARIBU

JUDGEMENT

(1.) PLAINTIFF-appellants have preferred present second appeal under Section 100 of the Code of Civil Procedure, challenging the judgment and decree dated 22.11.1988 passed by learned First Appellate Court i.e. Additional District Judge, Ropar, in Civil Appeal No.104/19.11.1987 titled 'Garibu vs. Smt. Kauri and others', thereby allowing the appeal and dismissing the suit filed by the plaintiff- appellants.

(2.) BRIEF facts of the present case, inter alia, are that Prabhu and Jagta were two brothers; after the death of Jagta, Kasturi filed a civil suit for joint possession against her own uncle Prabhu on the allegations that she was the daughter of Jagta and was entitled to succeed to his half of the share along with Prabhu; suit was contested by Prabhu, claiming therein that Kasturi was not the daughter of Jagta and he, being the brother of Jagta, was entitled to succeed to his estate. Suit was decreed by the trial Court. Learned trial Court has found that Kasturi is daughter of Jagta and consequently had inherited entire estate of her father Jagta and has half of the share with Prabhu in the property in question. First appeal filed by Prabhu against the judgment and decree passed by learned trial Court was dismissed. Prabhu thereafter approached this Court by way of filing regular second appeal; during the pendency of second appeal before this Court, Prabhu had expired on 27.5.1980. No application for substitution of legal heirs of Prabhu was moved before this Court, therefore, appeal stood abated and was dismissed as such; application for setting aside the abatement was filed by the plaintiff- appellants herein on the ground that they were the daughters of said Prabhu. In the meantime, Kasturi had also died, therefore, Garibu, defendant-respondent had filed an application for seeking substitution of his name in place of Kasturi as her legal heir on the basis of registered 'Will' executed by his wife Kasturi on 30.5.1973. Plaintiff-appellants have withdrawn their application under Order 22 A 3 CPC. As a consequence thereof, the application of the present appellants was dismissed and appeal remained dismissed as abated. Thereafter, plaintiffs have filed present suit saying that since Kasturi had inherited property from her father Jagta, therefore, after the death of Kasturi, plaintiffs, being daughters of Kasturi's real uncle Prabhu, are the only legal heirs to inherit the estate of Kasturi as per Section 15(2)(a) of the Hindu Succession Act. On the other hand, Garibu (respondent herein) preferred his written statement saying that plaintiffs are not the daughters of Prabhu and they should be put to the strict proof thereof. It has further been pleaded by Garibu, defendant-respondent, that he is the husband of Kasturi and Kasturi had executed a 'Will' in his favour on 30.5.1973, therefore, he is entitled to inherit the estate left by Kasturi.

(3.) FEELING aggrieved from the judgment and decree passed by First Appellate Court, plaintiff-appellants have approached this Court by way of present appeal.