MUKANMAL Vs. SUMER KANWAR

JUDGEMENT

(1.) THIS appeal has been filed by Mukan Mal, one of the defendants in a suit brought by Mst. Sumer Kanwar, plaintiff respondent originally against Sobhagmal in suit brought by Mst. Sumer Kanwar, plaintiff respondent originally against Sobhagmal in the court of the Civil Judge, Jodhpur. Sobhagmal died pending the suit and Mukanmal and the two tenants of Sobhagmal, namely Harakchand and Chandra Kumar were substituted in his place.

(2.) THE plaintiff's case was that her husband Daulatraj was the brother's son of Sobhagmal and had also been adopted by him as his son. there was an ancestral house situated in Tripolia, Jodhpur belonging to Sobhagmal and his brother Ratanmal. Daulatraj died during the lifetime of Sobhagmal and on the 2nd of October, 1945, there was a family settlement between her on one side and Sobhagmal and his wife Anop-Kanwer on the other. A registered family settlement which is Ex. P. 1 on the record, was executed by the three parties on the 2nd of October. 1945, in accordance with which five portions of a house mentioned in para 2 of the plaint were given over to Sobhagmal and his wife for residence during their lifetime. It was stipulated that the plaintiff would not interfere with the possession of Sobhagmal and his wife of these portions during their lifetime but that they would not be entitled to let those portions out or to transfer them in any other manner, nor would they be entitled to create any encumbrance on these portions. After the death of Sobhagmal and his wife, the plaintiff would be the absolute owner of these portions. As regards the remaining portions of the house, it was stipulated that the plaintiff would be the absolute owner of those portions. It was stipulated that the plaintiff would pay an allowance of Rs. 27/- per mensem to Sobhagmal so long as he and wife were alive, but on the death of the either, the survivor would be paid an allowance of Rs. 20/- only during his or her lifetime, as the case may be. Further, it was agreed that the plaintiff would pay Rs. 500/- to Dashrathmal, to whom this amount was due from Sobhagmal. After the execution of the family settlement, the plaintiff paid Rs. 500/- to Dashrathmal as provided by the said deed and paid Rs. 100/- to Sobhagmal for the construction of a kitchen and up to the 1st of February, 1956, the plaintiff continued to pay Rs. 27/-as allowance to Sobhagmal and his wife in accordance with the terms of the deed. Sobhagmal's wife died in Kartik Smt. 2004 and Sobhagmal let out the four rooms out of the portion allotted to the plaintiff and realized rent therefrom. It was prayed that the possession of the said four rooms which have been given in para 4 of the plaint be awarded to the plaintiff after dispossession of the defendant. It was also prayed that the defendant Sobhagmal be made to render the account of the rent of the said four rooms which he had realized and that he be restrained from creating any charge upon those five portions of the house which had been given to him for residence under the above mentioned deed.