GOPAL LAL Vs. PHULCHAND

JUDGEMENT

(1.) THIS revision application is directed against an order of the Civil Judge, Jaipur District, dated the 5th July 1951, by which Gopal Lal's application for substitution of his name in place of Sohanlal was dismissed.

(2.) IN a previous suit for partition between Phulchand on the one side and Sohanlal, Gopal Lal, Rajmal and Mst. Gulab Bai on the other a decree was given by Mahakma Khas, Jaipur, acting as the Highest Court of Appeal at that time, on the 1st of August 1942, in which, among other things, a house was held to be a separate and self-acquired property of Sohanlal, and it was also held not to be partible among the parties to that suit. After the decision in that case Sohanlal instituted a suit on the 5th of December 1944 in the court of Civil Judge, Jaipur City, for possession of a portion of that house against Phulchand, Rajmal, Mst. Gulab Bai and Mst. Sujan Bai. During the pendency of this suit Sohanlal, the plaintiff, died on the 13th of May 1947, and Gopal Lal filed an application for substitution of his name in place of Sohanlal on the 30th of May 1947 on the basis of a will executed by Sohanlal on the 2nd of June 1940. Phulchand opposed the application of Gopal Lal on two grounds among others, namely: - (1) that Gopal Lal was barred by the principle of res judicata to take his stand on the will left by Sohanlal. (2) that he was estopped by sec. 115 of the Evidence Act to take his stand on the will.