Prakash Krishna, J. - (1.) The above appeal under section 96 of CPC 1908 has been filed against final decree dated 23.4.1982 passed by the 1st Additional District Judge, Mainpuri in partition suit no.68 of 1972. The decree under appeal provides that a final decree in terms of the Commissioner's report which shall form part of the decree, be prepared. Heirs of defendant no. 2, are in appeal.
(2.) The background facts may be noticed in brief; Kunwar Moti Singh Lal Singh was the common ancestor of the parties. He acquired huge movable and immovable properties during his life time. He died on 21.7.1965, leaving behind him his widow Smt. Janki Bai (Defendant no.3), two sons one Kr.Harnam Singh Moti Singh (Defendant no. 1) and another Kr.Ganga Singh Moti Singh (Defendant no.2) and two sons and one daughter of pre-deceased daughter Smt.Prem Kunwar. For sake of convenience, pedigree, which is not in dispute is reproduced below: JUDGEMENT_248_LAWS(ALL)12_2012.jpg
(3.) After death of Kunwar Moti Singh Lal, a dispute arose amongst his sons and heirs of pre-deceased daughter Smt.Prem Kunwar. Kr. Ganga Singh Moti Singh, defendant no. 2, whose heirs are the (appellants herein) filed a Petition No. 327 of 1968 (Ganga Singh v. Harnam Singh & others) in the original side of Bombay High Court for probate on the basis of a Will allegedly executed by deceased Kunwar Moti Singh Lal Singh. On contest, it was converted into two testamentary suits one being Suit No. 32 of 1968 (Ganga Singh v. Harnam Singh) and the another being Suit No. 15 of 1969 (Ganga Singh v. Smt. Prem Singh & others) . The suits were consolidated and were ultimately compromised by the parties. Under the said compromise, the respective shares of the parties in the property left by deceased Moti Singh Lal Singh was agreed upon. For the sake of convenience, the relevant portion of the said compromise which is dated 29.4.1970 is reproduced below: "3. It is agreed that the share in the properties left by the said Moti Sigh shall be as follows: That in a rupee of 16 annas Harnam Singh Moti Singh do have a 6 annas share therein; that Pushpendra Singh Shiv Singh Kama, Mahendra Singh Shivi Singh Kama and Mrs.Nanda Kumar Pratap Singh do between them equally have a four annas share therein: that Ganga Singh Moti Singh do have a two annas share therein; and that each of Ganga Singh Moti Singh four sons namely, Bhupendra Singh, Digvijay Singh, Kishore Singh and Ishwar Singh do have a one annas share therein.";