Decided on January 22,1955



Khan, J. - (1.) THE plaintiffs filed a suit No. 9 of 1949 in the Court of District Judge, Guna for the recovery of property in dispute on the ground that it was a joint family property, and in the alternative it was stated that if the property was not joint, then they were heirs to the last full owner (Parshadilal) and as such entitled to succeed him. The suit was, however, dismissed on 29 -8 -1949 by the learned District Judge, Guna. Aggrieved by this decision, this is plaintiffs' first appeal.
(2.) THAT plaintiffs' suit shortly stated is that Chaturbhuj had three sons: Ramchand, Thakurdas (plaintiff) and Parshadilal. Ram Chand died issueless. Thakur Das (plaintiff) had one son Parmanand and Parmanand had two sons, Tulsiram and Vallabh Das, both of whom are minors. In this case Thakur Das, his son Parmanand and his two grandsons are the plaintiffs. Parshadilal had no son and in consequence he adopted Laxminarain, who is in possession of Parshadilal's property and is a defendant in the case. The following sketch will show the relation in which the parties stand to each other: It is stated in the plaint that Chatur Bhuj and his three sons lived jointly with him. That after his death they continued to be joint, but sometime afterwards, Thakur Das (plaintiff) and his family began to live separately from his two brothers, Ram Chand and Parshadilal and that there was a cessar of commonsality as well. But their property including the firm known as "Chaturbhuj Ramchand" continued to be joint and Parshadilal used to look after the property. Out of this property, two houses remained in the possession of Thakur Das (plaintiff) and from time to time, Thakur Das used to draw upon the family funds. Parshadilal made him pass receipts for larger sums than he actually received and by force and fraud made Thakurdas write that he had received his share of the property. But in fact till the death of Parshadilal, the property remained undivided, it is stated that for some time past, in order that he may be helped in his work, Parshadilal had kept Laxminarain (defendant) with him. But Laxmi Narain prevailed upon Parshadilal and made him write a document dated 31 -12 -1945, purporting to be a will by which the entire property was bequeathed to Laxmi Narain. Parshadilal at the time of making the bequest was not in his senses. The value of the property is assessed to be about ten lakhs. The defendant resists the claim on the ground that he is the adopted son of Parshadilal, that the family became divided long ago, that by deeds dated 23 -6 -1916 and 3 -8 -1931, executed by Thakurdas received his share, that in the above deeds the plaintiff Thakurdas has himself admitted the defendant to be the adopted son of Parshadilal, that the will was executed when Parshadilal was in possession of his full senses.
(3.) THE trial Court framed as many as sixteen issues and held that Parshadilal and Thakurdas became separated long ago, that the defendant is the adopted son of Parshadilal, that the will dated 31 -12 -1945 was duly executed in favour of the adopted son and in consequence dismissed the plaintiffs' suit.;

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