GULLAN DEVI Vs. PUNA

JUDGEMENT

(1.) This Letters Patent appeal is filed by the defendant/appellant against the preliminary decree passed in a suit for partition in Civil Suit No.22 of 1971 by learned Single Judge of this Court, as he then was, on June 6, 1979.

(2.) Mst. Puna alias Puran Devi, widow of Shri Kirpa Ram-respondent 1 in the present appeal filed a civil suit against the present appellant and respondents 2 to 6 praying for a decree for partition of the suit property and claim possession by metes and bounds. Respondent 1 and the appellant are admittedly the daughters of one Rasila Singh and respondents 2 to 6 are the Successors of the pre-deceased daughter of Rasila Singh. It is not necessary to detail the property in dispute as none of the parties have disputed that the suit property was left by Rasila Singh. It was alleged by Respondent No. 1 that Rasila Singh executed a 'Will' in her favour on Jan. 30, 1965 and in favour of the appellant, which was cancelled by him on July 8, 1966, and thereafter till his death on July 15, 1969, the deceased did not execute any 'Will'. On his death, he left a house comprised in Khasra No. 140 situated at Mohalla Rehari, Jammu consisting of 11 rooms, to which respondent No. 1/plaintiff and appellant/defendant No. 1 are entitled to half and half share, which she claimed in the partition suit.

(3.) It is also not disputed that the parties being Hindu are governed by the principles of Hindu Law, it is alleged that the children of a pre-deceased daughter have no right or claim on the property left by her father in the suit. Except appellant and respondent 5, all other respondents were set ex parte. The main contest was between the appellant and respondent 1. Appellant pleaded that a 'Will' was executed by Rasila Singh in her favour on July 15, 1969 bequeathing his entire property in her favour to the exclusion of respondent 1. Whereas respondent 5 claimed a share in the property of the deceased on the basis that Rasila Singh was his maternal grandfather without specifying the law under which the same was claimed. The learned trial judge on the pleadings of the parties framed the following issues on Nov. 1, 1973, as he then was : -