GUN PARKASH Vs. BHOLA NATH

JUDGEMENT

(1.) PARTIES in this appeal are being referred to as 'defendants' and 'plaintiff',1 The plaintiff filed a suit for declaration and injunction as a consequential relief against the defendants. In order to properly appreciate the background of this case, it is necessary to draw the pedegree table which is to the following effect : <FRM>JUDGEMENT_46_TLHPH0_1996.htm</FRM>

(2.) THIS appeal is filed by the defendants against the decree passed by the lower appeallate Court, Facts regarding which the parties are not at variance are that Kanha and Jai Dev were real brothers and were the sons pf Dhari. So far Jai Dev is concerned, he had no issue and was survived by his widow Smt. Shyama. On the other hand, Kanha had only one son, named, Yadupati and Bhola Nath plaintiff is the son of Yadupati. In the present case, the estate of Smt. Shyama is the subject matter of dispute. Parties are further not at variance regarding the fact that Kanha and Jai Dev had effected partition of their joint holdings during their lifetime and thus, the jointness of status was severed during their life time. As a consequence of such partition, Smt, Shyama became absolute owner of the property after the death of Jai Dev. In this view of the matter, learned counsel for the respondent has very fairly stated at the Bar that so far the plea regarding the property being joint Hindu family coparcenery property is concerned, that does not survive and accordingly it is given up.

(3.) IN view of the facts stated in the preceding paragraph, the fact of the property being Joint Hindu Family Coparcenery property is not being noticed for the determination of this appeal. The case of the plaintiff further was that Jai Dev died about 19 years ago and he was survived by his widow Smt. Shyama who died on 30 1 1985 and alt her last rites were performed by the plaintiff. Further case of the plaintiff was that defendants started interfering in the peaceful possession of the plaintiff since 10 2 1985 over the suit property. Not only this, the defendants are further alleged to have been propagating that they are now owners of the suit property along with the plaintiff. According to the plaintiff Smt. Shyama was neither the owner of the suit property nor was she competent to make any Will. It was further pleaded by the plaintiff that in case Smt. Shyama was found to be competent to make the Will, then in such a case, she being ill for the last many years as also being not of disposing mind, was not competent to execute any Will. It was pleaded that Smt. Shyama was blind. Further plea of the plaintiff was to the effect that if the Will is duly proved to Have been executed while the executant was in sound disposing mind, then it was pleaded that the same is the result of undue influence and fraud and the same is void.