HARKESH SINGH Vs. MTHARDEVI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for recovery of possession of property. The plaintiff's case was that he and his uncle, Shib Sahai, were members of a joint Hindu family even after the death of the plaintiff's grandfather, Kunwar Singh, and that the entire property in dispute in the case was either ancestral property which devolved upon them from Kunwar Singh or was such as had been acquired in the name of Shib Sahai out of the income of suit property. The plaintiff alleged that up to 1919, when Shib Sahai died, the family was joint and he is entitled to the estate by the right of survivorship. In the alternative the plaintiff claimed that even if he was not entitled to any share by right of survivorship, he had a half share in the entire estate which was joint and undivided. The plaintiff's name is recorded over half shares in some properties over which he is admittedly in possession. That property is accordingly not included in his claim. The plaintiff, in order to explain the delay in the institution of the suit, alleged that he had been insane off and on from the year 1916, and that certain revenue Court proceedings had been taken by taking advantage of his insanity. The claim was contested by the two widows of the sons of Shib Sahai, as well as by a daughter's son, Joti Prasad. They denied that the family was joint up to 1919 and pleaded that it was in fact separate and the plaintiff had no right of survivorship. They also pleaded that under a will executed by Kunwar Singh, dated 26 September 1878, certain properties had been bequeathed exclusively to Shib Sahai in which the plaintiff had no share. They also pleaded that there was a family arrangement effecting a partition of the family property which was accepted by the plaintiff, who is not entitled to challenge it after so many years. It was also pleaded that the properties acquired in the name of Shib Sahai were the self-acquired properties belonging exclusively to him in which the plaintiff had no interest.

(2.) The learned Subordinate Judge has held that the family was not joint and the plaintiff is not entitled to a right of survivorship. He has, however, held that the entire property mentioned in the will of Kunwar Singh, is ancestral but that all other properties were not ancestral. He has held that the plaintiff accepted the arrangement made" by the will of 1878 and was not entitled to challenge it after so many years. He has further held that the effect of the various litigations was that the family became divided in about 1903. Lastly, he held that the plaintiff has been out of possession for more than 12 years over the properties and that Shib Sahai's possession has been adverse. As regards the technical plea, that the claim was barred by Section 233K, U. P. Land Revenue Act in respect of certain properties which have been partitioned by the revenue Court, he held that section has no application.

(3.) The plaintiff has appealed and challenged the findings of the Court below. The learned Advocate, on behalf of the respondents, has not challenged the findings of the Court below that the property mentioned in the will of Kunwar Singh is surely ancestral property.