MADHOPURI Vs. BANSHIDHAR

JUDGEMENT

(1.) A . suit for possession of the property belonging to one Smt. Sunder Bai was filed by the respondents on May 2, 1980 in forma pauperis which after inquiry was registered on July 17,1981. On August 5, 1983 the respondents were permitted to proceed with the suit in forma pauperis. Various applications were filled in those proceedings by the plaintiffs respondents for appointment of receiver on the ground that the property was being damaged by the appellant -defendants. By the order under appeal, the learned Judge allowed the prayer and appointed receiver for the property.

(2.) SUIT was filed by the respondents as Trustees of 'Smt. Sunder Bai Public Charitable Trust' (here in after to be referred as 'the Trust'). It was averred in the plaint that on December 2, 1978 Smt. Sunder Bai treated a Trust through a Will. Sunder Bai died on February 24, 1979. The grievance of the Trustees was that the appellants were damaging the property and were intending to erect construction on the open land. The defendants claimed the property through a registered Will dated June 26, 1971 executed in favour of Madhopuri and Bhanupuri appellants, being nephews (brother's son) of Smt. Sunder Bai. Appellant Yashwant Puri claims to be in possession in his right as being nephew (Son of Jeth - -elder brother of husband) of Smt. Sunder Bai. Five applications for appointment of receiver were filed by the respondents -Trustees on various dates. The last application being dated April 18,1983 which was decided by the order under appeal.

(3.) MR . H.M. Parekh, learned counsel for the appellants submitted that there was a registered Will executed on June 29, 1971 by Smt. Sunder Bai in favour of appellants Madhopuri and Bhanupuri who happened to be her nephews while Yashwant Puri being the son of the elder brother of Smt. Sunder Bai's husband belongs to her family and was in possession of the house in that right. That, the Will dated December 2, 1978 was not a registered one and there was no reason for Smt. Sunder Bai to cancel the will in favour of her nephews who served her till her last and create a charitable Trust. That the last rites of Smt. Sunder Bai after her death were performed by Madhopuri and Bhanupuri in the same house which they could have done only if they were in possession of the house.