NOZI Vs. MOHANLAL

JUDGEMENT

(1.) THIS is a first appeal by Nozi and her sons Lichmichand and Ganeshmal against the dismissal of their suit by the Civil and Additional Sessions Judge, Merta.

(2.) THE case of the plaintiffs appellants was that one Shivnarain deceased was the maternal-uncle of Mst. Nozi. She used to look after him in, his old age, and consequently he was pleased with her. To show that pleasure, he gifted a house belonging to him to Mst. Nozi and her sons who are the three plaintiffs in the suit. The gift deed was written on 27-4-1944, and registered on 29-4-1944. Shivnarain continued to live in the house in dispute with the consent of the plaintiffs till he died in December, 1944. Defendant Mohanlal had come to Jaswantgarh, where Shivnarain used to live and where the house is situate, some months before shivnarain's death when Shivnarain was ill, and had stayed with Shivnarain for sometime. Thereafter, he had gone away leaving his wife with Shivnarain. The defendant cams again to Jaswantgarh after the death of Shivnarain, and began to live in the house. The plaintiffs asked him to vacate the house. He agreed to do so after sometime, and also agreed to pay Rs. 5/- as rent. Later, however, the defendant refused to vacate the house. Consequently notice was given to the defendant on 31-5-1946. As the defendant did not vacate the house even thereafter, this suit was filed in march, 1949. The plaintiff's prayed for possession of the house which was valued at Rs. 5000/-, and also for a sum of Rs. 190/-for use and occupation of the house at the rate of Rs 5/- per month.

(3.) THE suit was resisted by the defendant. His case was that he was the adopted son of Shivnarain and that there was no gift deed by Shivnarain in favour of the plaintiffs. He also said that he and his wife were looking after Shivnarain and nob mst. Nozi. He denied that he had ever agreed to pay Rs. 5/- p. m. as rent to the plaintiffs for the house, and said that he was in possession of it in his own right as the adopted son of Shivnarain. He further alleged that the gift deed was invalid as shivnarain never handed over possession of the house to the plaintiffs; nor did he hand over the title deeds relating to the house to them. He also pleaded that there was a joint Hindu family consisting of Shivnarain's brother Jagan-nath's widow. Shivnarain himself, his other brother Asaram, and the defendant who was the adopted son of Shivnarain, and as such Shivnarain could not make a gift of this house which was the property of the joint family.