DHARM SHILA DEVI Vs. RAMESH CHANDRA TEWARI

JUDGEMENT

(1.) RESPONDENTS No. 1 and 2 instituted a suit seeking declaration that the properties, being the subject matter of the suit, are joint family properties and also partition by metes and bounds of such properties amongst the co -sharers to the extent of their share. Bhagmani Tewari was defendant no. 7 in the said suit. She contested the suit and contended that one of the properties, being the subject matter of the suit, is a self -acquired property of her husband, late Shri Rajpati Tewari.

(2.) This contention was not accepted by the trial court, who by the decree dated 15th April, 1997 declared that the said property too is a joint family property and directed partition thereof in metes and bounds in accordance with the share of the parties to the suit as had been declared by the decree. Bhagmani Tewari, thereupon sold the said property to Raghubansh Singh on 2nd September, 1997. While doing so, she held out that she, on receipt of the said property by way of gift from her husband, became the sole owner thereof. Thereupon, on 2nd December, 1997, an appeal was preferred against the said decree dated 15th of April, 1997. This appeal was preferred by Bhagmani Tewari as appellant No. 1 and also by Raghubansh Singh as appellant no. 2. Inasmuch as the appeal was preferred after expiry of the time to file appeal, an application for condonation of delay in preferring the appeal was also filed. The delay in preferring the appeal was condoned by a judgment and order dated 10th of September, 1998. On that date, the application filed by Raghubansh Singh, being I.A. No. 7343 of 1997, seeking leave to prefer an appeal against the decree dated 15th of April, 1997 was taken up for consideration and the same was rejected. Against the said order dated 10th of September, 1998 rejecting the said application seeking leave to prefer an appeal, as was filed by Raghubansh Singh, the present appeal has been filed. Having regard to the fact that the original appellant purchased the property subsequent to the decree, it cannot be said that there was any reason for the original appellant to be aggrieved by the decree and as such the prayer of the original appellant for leave to prefer appeal was thoroughly misconceived.

(3.) HOWEVER , the question is. when it was brought to the notice of the Court that the subject matter of the appeal is only that property, which has been purchased by the original appellant and which has been decreed in the manner as above, whether it was necessary for the court to exercise discretion to grant leave to the original appellant to pursue the appeal?