JIWAN DASS AND ANOTHER Vs. CHAMAN LAL

JUDGEMENT

(1.) THE factual matrix giving rise to this appeal is that the Plaintiff filed a suit for declaration and possession of the property in dispute to the extent of one -third share The Plaintiff and the Defendants were real brothers. Their father Shankar Dass executed a will dated 16.8.1960, registered on 9 -12 -1960, bequeathing the property in dispute on his death to his widow. It was provided in that will that on her death, the land in dispute would be taken by the brothers in equal shares, on payment of two year's produce to the sister equally. Shankar Dass died in December, 1963, and his widow Smt. Ram Ditti Bai died in 1698. Smt. Ram Ditti Bai executed a will in favour of the Defendants depriving the Plaintiff of his one -third share. The Plaintiff challenged the validity of the will by Smt. Ram Ditti Bai as not binding on him.

(2.) THE Defendants accepted the execution of the will by Shankar Dass. It was inter alia, alleged that Smt Ram Ditti Bai was the absolute owner of the property in dispute under the will of Shankar Dass, alternatively she became absolute owner in view of Section 14(1) of the Hindu Succession Act, 1956. The Defendants further claimed that Shankar Dass had during his lifetime gifted some land to the Defendants in equal shares vide gift deed dated 2 -11 -1961, and had handed over possession also. It was averred that their father had 5/6th share in House No. 7 -242 and 1/6th share in the house belonging to Devi Dass, who had sold his share to the Defendants in equal shares and the remaining 5/6 share the house was gifted by Shankar Dass to the Defendants in equal shares. The Defendants further averred that the Plaintiff admitted the Defendants' claim as sole owners of the house in dispute vide an agreement dated 16 -8 -19 0 and the will executed by Smt. Ram Ditti Bai on 27 -3 1965, registered on 31.3.1965, was a perfectly valid and legal will, as she had absolute power to alienate the property. On the pleadings of the parties, the following issues were framed:

(3.) WHETHER the suit is not maintainable in the present form ? O.P.D.