- (1.) THE Original Suit No. 41 of 1977 was filed by the respondent No. 1. against the appellants and other respondents for partition of his 1/16th share over house No. 22, Dilkusha, New Katra, Allahabad.
(2.) THE case of the plaintiffs can be understood properly by the following pedigree. (See pedigree on next page) It is alleged that the house in dispute was purchased by sale-deed dated 1-3-1936 from Allahabad Improvement Trust for Rs. 1200/- by Hanuman Prasad, grandfather of the plaintiff from his ancestral as well as own funds in the name of his wife Smt. Yashoda Devi, grandmother of the plaintiff; that Smt. Yashoda Devi was only benamidar and she had no founds of her own to purchase the house; that Smt. Yashoda Devi was under the control of his son Sheo Prasad who fraudulently got a gift-deed executed from her in his favour of the house in dispute on 5-2-1945. Smt. Yashoda Devi died some time after in the year 1945; that the appellants claim the property on the basis of the gift-deed. However, Smt. Yashoda Devi was only Benamidar and has no right to execute the gift-deed of the house; that, therefore, the plaintiff has 1/16th share in the same. The appellants only contested the case. The other defendants-respondents admitted the plaintiff's case. The appellants however did not dispute the above pedigree, but they claimed that the house in dispute was acquired by Smt. Yashoda Devi from her stridhan and she was absolute owner of the same; that it was not acquired from the ancestral funds or by the earnings of Hanuman Prasad; that Devi Prasad another son of Hanuman Prasad died in October, 1936 and his wife shifted to maika. Sheo Prasad son of Smt. Yashoda Devi was looking after her and the property was gifted by Smt. Yashoda Devi in favour of Sheo Prasad with her own free-will; that, therefore, appellants became absolute owner of the property; that the plaintiff has no share in the same.
(3.) IT is further pleaded that the plaintiff is residing in the house as a licensee and the suit is barred by limitation and also by the principle of estoppel and acquiescence. The trial Court recorded the oral as well as documentary evidence and recorded a finding that Smt. Yashoda Devi was Benamidar of the house. It was purchased by Hanuman Prasad from his own funds; that, therefore, Smt. Yashoda Devi has no right to gift the property to her son Sheo Prasad. The gift-deed is void and the plaintiff has 1/16th share in the house in dispute. The suit was, accordingly, decreed.;