S.U. Khan, J. - (1.) HEARD learned Counsel for the parties.
(2.) THE main question involved in this writ petition is regarding interpretation of will dated 16.02.1965 copy of which is Annexure 1 to writ petition. The will is admitted to both the parties. Petitioner as well as Respondent No. 3 Smt. Kamla Devi are sisters and daughters of late Sri. Musai Lal. Sri. Musai Lal left behind two houses. At the time of his death (4.4.1968) his wife Smt. Jagdei i.e. mother of Petitioner and Respondent No. 3 was alive. The couple had no son. Details of the properties belonging to the testator are given at the foot of the will. In Clause 2 of the will it is mentioned that after the death of the testator the entire movable and immovable properties would remain in possession of the wife of the testator till her life and she would be entitled to utilise the profit thereof, however, she would not have any right to transfer the same. Thereafter, in Clause 3 of the will it is mentioned that after the death of wife of the testator, the house situate in Katra Baji Rai, city Mirzapur would exclusively be owned and possessed by elder daughter of the testator i.e. Petitioner Smt. Keshav Devi and like the testator she would be having entire right of ownership and transfer. In Clause 4 of the will it is mentioned that after death of wife of testator, the house situate in Mukari Bazar, Mirzapur would exclusively be owned and possessed by the younger daughter (Smt. Kamla Devi Respondent No. 3) and like the testator she would be having total right of ownership and transfer. In Clause 5 it was provided that after the death of the testator movable properties and the running business would be owned and possessed by both the daughters. After the death of the wife of the testator). At the foot of the plaint the above two houses were mentioned as the only immovable properties belonging to the testator. Smt. Jagdei died on 03.09.1986. However, before her death she had admittedly executed a will dated 07.06.1984 dividing the house at Katra Baji Rai between her two daughters. After the death of Jagdei Petitioner filed application for mutation before Municipal Board in respect of the house situate at Katra Bajirai, Mirazapur. Respondent No. 3 objected to that and claimed that she was a co -sharer therein. Petitioner's application was allowed. Appeal was filed against the said order which was allowed on 03.09.1990 by C.J.M., Mirzapur copy of the said order is Annexure 6 to the writ petition which has been challenged through it.
(3.) THE other house situate at Mukari Bazar which under the will was to go to Respondent No. 3 was auctioned on 26.03.1977 for realisation of sales tax dues. At this juncture copy of order dated 11.2.2011 on which date arguments were heard and judgment was reserved is quoted below: Writ petition is restored. For orders see order of date passed on the restoration application. Heard learned Counsel for the parties on the merit of the writ petition. judgment reserved. Learned Counsel for the parties through written argument shall bring on record the date of auction of one of the houses left behind by the father of original Petitioner and original Respondent No. 3. Learned Counsel for both the parties state that the house in dispute is in the tenancy of Municipal Board in which it is running a school. Learned Counsel for legal representatives of Respondent No. 3 states that in the remaining portion business is being run by legal representatives of Respondent No. 3. However, learned Counsel for the Petitioner states that only in one room of which legal representatives of Respondent No. 3 have forcibly taken possession they are running business of manufacturing of mattress(Dari). Both the parties admit execution of will dated 16.02.1965 executed by the father of original Petitioner and Respondent No. 3 as well as will dated 07.06.1984 executed by mother of original Petitioner and Respondent No. 3. The only dispute between the parties is regarding interpretation of the will of 1965 and the right of mother to execute the will of 1984. The other house which belonged to the father of Petitioner and Respondent No. 3 was auctioned in realisation of sales tax arrears in 1983. This fact is also admitted to learned Counsel for both the parties.;