RADHA BAI Vs. USHA SAXENA & ORS

JUDGEMENT

(1.) This first appeal under Section 96 CPC has been filed against the judgment and decree dated 20.11.81 passed by District Judge, Kota in Civil Suit No. 34/1974 whereby the court below has dismissed the suit filed by plaintiff appellant.

(2.) The brief facts of the case giving rise to this appeal are that Radha Bai, the mother of the present appellant instituted a suit for possession over the disputed property on 24.7.1974 with the contention that she claims inheritance of the property after the death of Herdevi her brother's widow in 1965. The respondent defendants have possession over the property hence a suit for possession has been filed. Radha Devi died on 8.1.1975 and appellants have proceeded the suit in the capacity of their legal representatives. The defendants contested the suit on various grounds including that on the strength of Ex.A/1 which is the compromise deed between the parties, the plaintiff appellants are estopped from brining the suit. The court below has dismissed the suit on the ground that property has been divided through family settlement Ex.A/1 and appellants are estopped from brining the suit.

(3.) On the pleadings of the parties, 11 issues have been framed. Issues No. 4, 5 and 9 have been mainly objected in this appeal and contention of the appellants is that admittedly, the property initially belongs to Shyam Bihari who was the brother of the original plaintiff Radha Devi. After the death of Shyam Bihari, his wife Hardevi has succeeded the property but she also died on 14.12.1965 and thereafter Radha Bai was the only heir of Hardevi and she succeeded her property but Ex. A/1 has been executed on 5.1.66 between the appellants and the defendant by playing fraud on Radha Bai when property was owned and inherited only by Radha Bai it could not be partitioned. Ex.A/1 document is not bonafide and fair and as per the provisions of Section 17 of the Registration Act, it should have been compulsorily registered otherwise also this document has been executed to negative the law of Stamp Act and Registration Act and void under Section 23 of the Contract Act. The property of Hindu female member cannot be blend with joint family property and could not be divided between the mother of appellants and other respondents. Ex. A/1 was without consideration. It was not the memorandum of partition and registration was essential, hence possession of the disputed property be allowed to the plaintiff along with mesne profits.