MOHAN LAL AGARWAL Vs. GOPAL RAM GUPTA

JUDGEMENT

(1.) This second appeal has been directed against judgment and decree dtd. 14/11/2003 passed by Additional Civil Judge (Senior Division) No.1, Bharatpur whereby appellant-plaintiff's suit for possession was dismissed and counter claim of respondentdefendant was decreed, declaring the will dtd. 22/7/1988 made in favour of plaintiff as null and void and the judgment and decree has been affirmed in first appeal, vide judgment dtd. 18/11/2009.

(2.) The facts of case as culled out from record are that the appellant-plaintiff and deceased respondent-defendant are brothers and dispute between them is about the house situated at Basangate, Bharatpur. The house was purchased through a registered sale deed dtd. 11/10/1961 in the name of mother Smt. Somoti Devi. Since after purchasing of house, defendant was residing there as deceased defendant was doing practice as an Advocate at Bharatpur. Mother Smt. Somoti Devi appointed the deceased defendant (being her son) as her power of attorney holder vide registered power of attorney dtd. 15/3/1962 and authorized him to maintained, used and dealt with tenants in house as power of attorney holder. Later on power of attorney was revoked and cancelled on 16/12/1989. Mother executed a registered will dtd. 22/7/1988 in favour of appellant-plaintiff and bequeathed the house in question in his favour. Mother has passed away on 19/6/1990, thereafter, appellant-plaintiff instituted a civil suit for declaration, possession and permanent injunction on 7/1/1992 alleging inter alia that his mother Smt. Somoti Devi was sole owner of house in question and her ownership rights have been devolved upon appellant-plaintiff by virtue of her will, therefore, appellant-plaintiff be declared as sole owner of house in question. It has been averred that power of attorney of defendant had already been cancelled and thereafter his possession over the house is illegal. It was claimed that appellant-plaintiff is entitled to obtain possession of house in question from defendants. Appellant-plaintiff also claimed accounts and arrears of rent received by the defendant from tenants from January, 1987 up to the date of filing of suit and mesne profits at the rate of Rs.500.00 per month from January, 1992 onwards till delivery of possession.

(3.) Original defendant submitted written statement on 10/7/1992. It has been contended therein that house in question was purchased out of funds of hindu joint family by their father Shri. Munna Lal in the name of mother. It has been contended that as defendant had completed his graduation in law in the year 1961, his father was desirous that deceased defendant should start practice as an Advocate at Bharatpur and therefore for the purpose of residence and office for defendant, the house in question was purchased. After purchase of property, same was got renovated and entire expenses were incurred out of income from the business of firms of joint hindu family. Thus, it was contended that the mother was not real owner of the property in question. It is contended that since purchase of property in question, respondent is using and maintaining the property. Father and mother, during their life time always lived at Kaman and never lived in house in question at Bharatpur. The house in question, since inception is laying in exclusive use and possession of defendant. Defendant also challenged the will of plaintiff dtd. 22/7/1988 and filed counter claim seeking declaration that will dtd. 22/7/1988 be declared as ineffective, null and void.