MUNNI LAL Vs. MTPHULA

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for recovery of possession of property by avoidance of at mortgage-deed executed by the plaintiff's sons and a decree passed thereon and the consequent purchase followed by mutation of names in favour of the mortgagee. The plaintiff's case as set forth in the plaint was that the original owner of this property was Paras Ram, who under an oral will had bequeathed a one third share in the estate to his wife, Mt. Phula; that her name has remained entered as heir; that subsequently there was a private partition between the sons in 1905 under which she got her property separated; that this has been followed by partition proceedings in the revenue Court under which a separate mahal was constituted; that in spite of all these facts the defendant 1 took a mortgage from her sons, Udai Ram and Ram Chander, of the plaintiff's share,which was in no way binding on her. The contesting defendant denied that there was any bequest in favour of the widow or that she had got any property on partition. He pleaded that her name was entered in the revenue papers for the sake of her consolation and she had no proprietary interest. The learned Subordinate Judge has come to the conclusion that the will set up by the plaintiff was proved and she entered into possession under the directions of her deceased husband. He has further held that there was a private partition between the said sons at which she got a definite share, and lastly he held that the revenue Court proceedings were a bar to the defence. He has decreed the plaintiff's claim for proprietary possession of the property.

(2.) We are not satisfied that the finding of the learned Subordinate Judge as regards the oral will should be accepted. It is said that five or six days before his death, Paras Ram had made an oral will directing that his two sons and his widow should have equal shares in his estate. The only evidence in support of it is the statement of a witness, Dip Chand, who is a servant of the plaintiff and gets about Rs. 80 a year from the plaintiff's family. He is also a sarbarahkar of the plaintiff and makes collections on her behalf and it looks likely that he is the pairokar in this case. The solitary statement of this witness cannot be accepted, especially as, according to his own statement, he must have been only about 14 years of age when this oral will was made. It is impossible to believe that he would recollect all the particulars after such a long time. No mention of any oral will as apparently made in the partition proceedings in 1905 and 1909; and we cannot find any trace of any assertion of it earlier than this litigation. We must, therefore, reject this oral evidence entirely and hold that the plaintiff has failed to prove that there was any such will. We may note that the plaintiff herself who would have been the best witness in the case, has not chosen to go into the witness-box.

(3.) Even if the will set up by the plaintiff were to be accepted, it would obviously be invalid, inasmuch as it is not disputed that the property was a joint family property and at the time when he is said to have made the will, his two sons were minors. He, therefore, had no power to make a will with regard to such joint property when there were minors.