LAWS(RAJ)-1975-9-6

SUNDERDEVI Vs. MANAKCHAND

Decided On September 03, 1975
SUNDERDEVI Appellant
V/S
MANAKCHAND Respondents

JUDGEMENT

(1.) THIS is a second appeal by the defendants in a suit for declaration under O. 21, R 63 CPC.

(2.) THE facts giving rise to this appeal are that the plaintiff respondent Manakchand (decree-holder) obtained a money decree against the defendant No. 3 Moolchand (judgment-debtor ) and attached half share in the property described in para no. 1 of the plaint alleging that the judgment-debtor Moolchand owned half-share in it. THE defendant appellant Mst. Sunderdevi, wife of Duli Chand and Mst. Chukabai wife of Moolchand (objector) moved an objection petition under O. 21, R. 58 CPC and asserted that the judgment-debtor Moolchand was entitled to only one fourth share in the property in dispute and the rest 3/4?h share was owned and possessed by them. THE objection petition was allowed by the executing court and 3/4th share in the property was released from attachment. THE decree holder Manakchand then instituted the present suit for declaration that the Judgment-debtor Mool Chand be declared owner of the half-share in the property. THE plaintiff alleged that the property initially belonged to the Joint Hindu Family of two brothers Hanutmal and Mangilal and after the former's death, the property by rule of survivorship devolved upon Mangilal. THE widow of Hanutmal Mst. Phephabai inherited no share in the property. After the death of Mangilal, the plaintiff alleged that the property devolved upon his two sons Mool Chand and Dulichand, each having half share in the property. THE defendant-appellants, that is, the objectors admitted that the property initially belonged to two brothers Hanutmal and Mangilal but they denied that on the death of Hanutmal the property devolved upon Mangilal. According to them, half-share in the property belonging to Hanutmal devolved upon Hanut-mal's widow Mst. Phephabai who remained in occupation of her husband's half-share in the property upto the date of her death which took place on Sawan Sudi 15, Smt. year 2019. As regards the remaining half-share the defendant appellants pleaded that after the death of Mangilal, his half share was inherited by his two sons Dulichand and Moolchand in equal shares. THE defendant-appellants farther pleaded that Mst. Phephabai gave her half share in the property by a registered will dated 2-9-53 to the defendant-objectors in equal shares. THEy further pleaded that Dulichand gifted his one-fourth share in the property to his wife Mst. Sunder Devi, defendant No 1, by a registered gift-deed dated 5-1-58. In these circumstances, it was pleaded that the defendant No. 1 Mst. Sunderdevi became the owner of the half-share, defendant No. 2 Chukabai of one-fourth share and defendant No. 3 Moolchand of one-fourth share. THE trial court after framing proper issues and after evidence dismissed the plaintiff's suit holding that the defendant No, 3 Moolchand had only one-fourth share in the property. THE learned District Judge, Ajmer, on appeal by the plaintiff decree-holder recorded the following findings : - (1) That there was nothing on the record to show that the property in dispute was a conparcenary property or joint family property of Hanutmal and Mangilal. Both Hanutmal and Mangilal were co-owners as they jointly purchased the property in dispute. (2) That on the death of Hanutmal, his half share in the property was inherited by his widow Mst. Pephabai as limited owner. (3) That the will Ex. A/4 was executed on 2 9-53 by Mst. Pephabai in favour of the defendant-objectors Mst. Sunder Devi and Mst. Chukabai. (4) That the will Ex A/4 when executed on 2 9-53 was a nullity, because in the year 1953 Mst. Pephabai was only a limited owner and she had at that time no authority to execute the will.

(3.) IN Halsbury's Laws of England, Vol. 34 (Hailuham Edition), para 291 at page 236, it is laid down : - "a will unless a contrary intention appears therein must be construed, with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator and as if the condition of things to which it refers in this respect is that existing immediately before his death. " IN this view of the matter, the decision of the learned District Judge cannot be upheld. 7. The appeal is, therefore, allowed, the judgment and decree of the learned District Judge are set aside and those of the trial court are restored. The appellants shall get costs from the plaintiff-respondent of all the three courts. .