SURJA Vs. SUBHASH

JUDGEMENT

(1.) In this regular second appeal, the defendants assail the correctness of the judgment passed by the First Appellate Court, which in turn has reversed the judgment passed by the trial Court.

(2.) In order to comprehend the issues involved in the present case, the relevant facts, in brief, are required to be noticed.

(3.) Late Sh. Jawahar was owner of the property. In the year 1959, he gifted 91 kanal and 7 marlas of land by a registered gift deed in favour of his daughter Smt. Maya Devi. Subsequently, Smt. Maya Devi married to Sh. Chandgi son of Sh. Devat. As many as four children were born namely Sh. Subhash (son), Smt. Mohinder, Smt. Raj Bala and Smt. Anguri (daughters). Sh. Chandgi exclusively claimed the property on the basis of a Will dtd. 24/2/1970, allegedly executed by Smt. Maya Devi. Thereafter, Sh. Chandgi sold 84 kanal and 8 marlas land vide sale deed dtd. 17/5/1975, in favour of Sh. Surja (defendant) (41 kanal and 7 marlas) and Sh. Krishna (defendant) (33 kanal and 1 marla). Remaining land measuring 16 kanal was exchanged with Sh. Krishna (defendant). All the four children of Sh. Chandgi filed civil suit through next friend Sh. Man Singh, claiming that the Will of Smt. Maya Devi claimed by Sh. Chandgi is forged. Sh. Chandgi admitted the claim of the plaintiffs. Sh. Surja and Sh. Krishna failed to prove the Will. Hence, the civil suit was decreed on 27/7/1978. This decree was upheld by the High Court. Subsequently, Smt. Mohinder, daughter of Sh. Chandgi sold 1/5th share to the defendants. Sh. Subhash (minor through Sh. Man Singh) filed suit for pre-emption, which was decreed in favour of Sh. Subhash. Thus, Sh. Subhash became owner of 2/5th share.