(1.) THIS appeal arises oat of a suit for partition and possession of the property described in para 2 of the plaint and for declaration that Defendant No. 1 had no claim in to the property which was acquired separately by the father of the plaintiff after partition. The following pedigree table will help in understanding the facts of the case: -
(2.) IMAGE Prem Nath died leaving one son Hirdey Nath by his deceased wife Iqbal Rani and a widow Mst. Chanda Rani and two minor children Piara Lal and Raj Kumari, Piara Lal minor is the plaintiff in the suit. He has brought a suit for paitition and possession through his next friend Pt. Balbhadar Koul against his brother Hirdey Nath Defendant No. 1 his uncle Mohan Lal Defendant No. 4 and his son Som Nath Defendant No. 5 and has also impleaded his sister Raj Kumari as Defendant No. 2 and Mst. Chanda Rani his mother as Defendant No. 3. The plaintiffs case is that his father Pt. Prem Nath separated from his son Hirdey Nath Defendant No. 1 in the year 1989 and lived joint with the plaintiff, his mother and his sister, till his death. Mohan Lal, his uncle, separated from his father in Samvat 1996 and executed a document by which some of the ancestral property was partitioned and some of it remained joint. It is alleged in the plaint that as Hirdey Nath had separated from his father in the year 1989 he had no claim over any property which Prem Nath had acquired subsequent to the partition and a declaration was sought that Hirdey Nath Defendant No. 2 had no claim to the property which was acquired by the plaintiffs father after partition.
(3.) HIRDEY Nath Defendant resisted the suit on the grounds that he has not separated from his father ; that the widow of Defendant No. 3 and the daughter Raj Kumari Defendant No. 2 were not entitled to any share in the ancestral property ; that the plaintiff had not included some of the ancestral property in the list mentioned in the plaint, and therefore, his suit was not maintainable. It was further averred that his father, Prem Nath, had gifted some portion of the land to Defendant No. 3 his wife out of the ancestral property which he could not do and the gift made in favour of Defendant No. 3 was invalid. Defendant No. 2 claimed maintenance and her marriage expense while Defendant No. 3 claimed her share in the property left by her husband and stated that the gift of land made by her husband was in lieu of some ornaments which her husband had sold and utilised the amount on his illness. Mohan Lal and his son claimed one -half of the ancestral property left by the common ancestor Har Narayan and also claimed a portion of the rent of the land which had been realised by Prem Nath the father of the plaintiff. The following material issues were struck by the trial Court; -