KESHAR Vs. GOMANI

JUDGEMENT

(1.) -Brief facts of the case are that plaintiffs Smt. Gomani and Jetha Lal filed a suit against the defendants-Smt. Keshar and six others for possession of house in dispute and recovery of ornaments and utensils. It appears from the facts of the case that some property of Dalji Khatik is situated at Sagwara in the State of Rajasthan. Smt. Dhannu is wife of Dalji and they had two daugthers. Smt. Gomani-plaintiff No.1 and Smt. Keshar defendant No. 1. According to the plaintiffs, Smt. Gomani and her son Jetha, Smt. Dhannu widow of Dalji executed Will in favour of the plaintiffs on 1.8.1972 and it was got registered on 17.8.1972. Smt. Dhannu expired on 15.6.1973. After the death of Smt. Dhannu, the plaintiffs obtained the probate for the Will dated 1.8.1972. The probate certificate was issued on 31.5.1975, copy of which is placed on record as Ex. 2. The plaintiffs alleged that at the time of last rites of Smt. Dhannu at burial ground, the ornaments which Smt. Dhannu was wearing and mentioned in para No.3 of the plaint were given to defendant No.6 by defendant Nos. 2 to 5. These ornaments have not been returned to the plaintiffs who are entitled to receive these ornaments from defendant No.6 as Smt. Dhannu gave all his properties to the plaintiffs by the Will mentioned above. The plaintiffs further alleged that on 29.6.1973, the defendant Nos. 1 to 6 dispossessed the plaintiffs from the house in dispute, upon which the plaintiffs left the village and went to Dungarpur where they were residing. It is alleged that the house-hold goods were lying in the house. They also, by virtue of Will dated 1.8.1972, came in the ownership of the plaintiffs. According to the plaintiffs, the defendant Nos. 1 to 6 put the defendant No.7 in possession of the house, who also has no right to remain in possession, therefore, the plaintiffs filed the suit for recovery of the possession of the house and for recovery of the goods mentioned in the suit. The suit was filed on 28.1.1976.

(2.) The defendants submitted written statement and stated that the proper Court fee was not paid for the probate certificate and the probate was obtained illegally and unauthorisedly. The defendants submitted that no ornaments were removed from the body of the deceased Smt. Dhannu and after denying the facts as alleged by the plaintiffs, the defendants submitted that in fact, Smt. Dhannu executed a Will in favour of plaintiff No. 1 Smt. Gomani and in favour of Smt. Keshar and the possession of the house was handed over to plaintiff No. 1 and defendant No. 2 at that time. According to the defendants, the said Will is in possession of the plaintiff Smt. Gomani. In addition to above, the defendants submitted that the Will dated 1.8.1972 is forged one and the defendant No. 1 was in possession of half of the house and she already gifted the hosue to 'Ranch' (of the village Sagwara). Rejoinder was filed by the plaintiffs denying the allegations of the defendants.

(3.) The Trial Court framed as many as seven issues. The issues are whether Smt. Dhannu had no son and she executed a Will in favour of the plaintiffs on 1.8.1972, whether the ornaments mentioned above were removed by defendant Nos. 2 to 5 and were handed over to defendant No. 6 and whether defendant Nos. 1 to 6 forcibly dispossessed the plaintiffs from the house in dispute and whether the defendants Nos. 1 to 6 gave the house to defendant No.7 for residing and what is the effect of the gift-deed executed by defendant Smt. Keshar. The Trial Court decided issue No. 1 in favour of the plaintiffs and held that in view of the Will Ex. 1, the plaintiffs became the owner of the property. While decided issue No. 2, the Trial Court held that the ornaments which were on the body of deceased Smt. Dhannu at the time of last rites of Smt. Dhannu, belongs to the plaintiffs and they are entitled to recover those goods from the defendants. Issues No. 3 and 4 were also decided in favour of the plaintiffs and the Trial Court held that the first Will set up by the defendants was cancelled by Smt. Dhannu and she executed subsequent Will dated 1.8.1972 which is the last Will of the deceased. The Trial Court decreed the suit of the plaintiffs holding that the plaintiffs are the owner of the property and are entitled to take possession back from the defendants. The Trial Court also cancelled the gift-deed executed by defendant No. 1 Smt. Keshar.