KEDAR HALWAI Vs. SACHITANAND HALWAI

JUDGEMENT

(1.) The original defendant-plaintiff namely Smt. Piyari Devi and Smt. Sumitra Devi had filed this First Appeal against the judgment dated 29.4.1988 and the decree signed on 5.5.1988 by Sri Surendra Prasad Thakur, the learned Subordinate Judge II, Munger in title suit no. 39 of 1978 decreeing the plaintiff-respondent no. one?s suit for partition to the extent of half share in the suit property.

(2.) It may be mentioned here that original appellant no. 1, Smt. Piyari Devi was the mother of appellant no. 2, Smt. Sumitra Devi. Plaintiff-respondent no. 1, Sachitanand Halwai is the husband of original appellant no. 2, Sumitra Devi. Both the appellants named above died during the pendency of the appeal. Earlier, appellant no. 1, Piyari Devi died. Therefore, her name was expunged on the ground that the only daughter is Sumitra Devi who is already on record. Subsequently, Sumitra Devi also died on 21.2.2005. Thereafter, Kedar Halwai filed a substitution application for being substituted in place of Sumitra Devi on the ground that he is the husband of Sumitra Devi. It appears that by terms of order dated 4th July, 2005, the Registrar General passed order in the following terms on the substitution application:- ?Subject to objection, if any, to be raised in future on behalf of respondent no. 1, let the heirs stated in I.A. No. 1906 of 2005 be substituted.? The respondent no. 1 thereafter filed objection petition on 11.1.2007 alleging that he is the husband of Sumitra Devi and Kedar Halwai falsely and mala fidely showing himself as husband of Sumitra Devi filed the substitution application, therefore, prayed for rejecting the substitution application. It was directed that the said substitution application shall be considered at the time of hearing of this appeal. I heard the parties on this application also.

(3.) The plaintiff-respondent no. 1, Sachitanand Halwai filed the aforesaid partition suit claiming half share in the suit building. According to the case of the plaintiff-respondent, the defendant no. 1, Piyari Devi and her husband late Ramdhani Sao through a registered gift deed dated 15.10.1971 gifted the suit building in the name of Sumitra Devi and the plaintiff, Sachitanand i.e. husband of Sumitra Devi. The further case is that after gift, both of them came in joint possession of the house and thereafter, the defendant no. 2 Sumitra Devi sold her half share in the suit house in favour of her mother, Piyari Devi through a registered sale deed. The plaintiff demanded partition of his half share but the defendant no. 1 refuse to partition. Therefore, the suit for partition was filed.