MOHAN SARUP SINGH Vs. RAJESHWAR SARUP

JUDGEMENT

(1.) PLAINTIFF feeling dissatisfied with the judgment and decree of the lower appellate Court have filed this regular second appeal.

(2.) PLAINTIFFS filed a suit for separate possession by partition of the property as detailed in the head note of the plaint. According to the plaintiffs their father Anand Sarup Singh had two wives, namely Smt. Bhagwanti and Smt. Kamla Devi. From Bhagwanti he was blessed with Rajeshwar Sarup Singh and Smt. Amrit Kaur, sons and Daughter respectively-defendant 1 and 2. From his wife Kamla Devi he was blessed with the plaintiffs, namely, Mohan Sarup Singh, Bibi Harbans Kaur and Surjit Kaur. Present controversy revolves around as to whether the properties left by the deceased are to be distributed as per his last will or that the parties succeed as per provisions of Hindu Succession Act.

(3.) DEFENDANTS 1 and 2 filed a joint written statement. Various averments made in the plaint have been replied/controverted. According to the answering defendants their father held very senior posts in the executive and performed the judicial functions as well. Finally he retired as Deputy Commissioner in the erstwhile Patiala State. Dealing with the various properties as enumerated in the plaint it has been stated that houses described as B and C are ancestral properties of the parties but the property described as D having an open Varanda with two rooms was built by Anand Sarup Singh and so was his self acquired property and according to the answering respondent property described as C also known as Ram Kuti was the main residential house of the ancestors of the parties which infact was duly partitioned during the life lime of Anand Sarup Singh. Since long the plaintiff-Mohan Singh has been living in the eastern portion of the building while the replying defendant No. 1 has been in occupation of the western portion of Ram Kuti and the court yard that separates the two portions of Ram Kuti has been used by Mohan Sarup Singh and replying defendant No. 1 jointly because the main gate of Ram Kuti open in the court yard. Defendants specifically denied that the house or the land left by Shri Ram Singh yielded any income. Infact, it is Shri Anand Sarup Singh who on account of his high offices purchased agricultural land in village Pishore Bhai Ke described as A in the plaint. He also constructed properties described as F and E, from his savings. Replying to the averments made by the plaintiffs in para No. 8 of the plaint it has been stated that land measuring about 300 bighas in village Pishore Bhai Ke was transferred by a regular gift deed executed by Anand Sarup Singh in the year 1952-53. Anand Sarup Singh made three transfers of the said land in favour of replying defendant No. 1 (Rajeshwar Sarup Singh) - 103 bighas and some biswas, Smt. Bhagwanti, mother of the plaintiffs-97 bighas and some biswas and Shri Anand Sarup Singh retained no portion of the said land himself. On the other hand agricultural land measuring 109 bighas 18 biswas purchased by him stood in his name. Since the property was transferred by way of gift sometime in the year 1954, the plaintiffs have no right to challenge the same now. However, the defendants stated that deceased made a will on 16. 12. 1977 in the presence of two attesting witnesses, which was later on presented before the Sub Registrar and was registered by the Sub Registrar on 15. 3. 1978. So, the rights of the parties flow from the last testament of the deceased.