- (1.) The above appeal has been filed by one of the defendants of original suit No. 9 of 1981 against the original judgment and decree dated 14.8.1991 passed by the District Judge, Fatehpur for declaration whereby the suit has been decreed in respect of property as described in Schedule-A and partly decreed in respect of property described in schedule-B. The background facts may be stated in brief: (i) Plaintiff/respondent Nos. 1 to 5 herein instituted suit No. 9 of 1981 in respect of two houses shown in Schedule-A and Schedule-B attached to the plaint for declaration that these house are not liable to be attached and sold in recovery proceeding against defendant No. 2 Hira Lal. Hira Lal and his wife Smt. Vedmati are the respondent Nos. 6 and 7 in the present appeal. It was pleaded that Shri Pansari Lal was the original owner in possession of the aforesaid two houses, Pansari Lal had two sons Basdeo Prasad and Sukhdeo Prasad. A small pedigree which has been submitted by the learned Standing Counsel is reproduced below: (ii) It was stated that defendant No. 2 Hira Lal, S/o Sukhdeo Prasad had no right in any of the houses as Pansari Lal by his Will dated 11.1.1971 bequeathed the properties to the plaintiffs. The houses were wrongly attached by the State of U.P. against the dues of Hira Lal. (iii) The suit was contested by the State of U.P. and Hira Lal by filing separate written statements. The State of U.P. came out with the case that Pansari Lal had no interest in any of the house in suit and they belong to Hira Lal exclusively. Hira Lal had obtained a loan of Rs. 7,000/- on 6.2.1964 and Rs. 5,000/- on 15.11.1965 from the Industries Department of the State Govt. against the surety of one house by mortgaging it on 4.11.1965 described in Schedule-A. It was further pleaded that Hira Lal stood surety for one Surya Kumar Mishra and had mortgaged the house described in Schedule-B.
(2.) The Trial Court on the basis of the pleadings of the parties framed as many as 9 issues, reproduced below: 1. Was Pansari Lal owner in possession of the two houses in suit? 2. Did Pansari Lal execute any deed of Will on 11.1.1971 in respect of the house of schedule-I of the plaint as a result of which the plaintiffs and defendant No. 3 became the sole owners of house of Schedule No. 1 3. Whether the house of Schedule No. 2 fell to the share of Sukhdeo Prasad as a result of partition by Pansari Lal and after the death of Sukhdeo Prasad, plaintiff Nos. 3, 4 and 5 and defendant No. 2 have become the exclusive owners of this house in equal shares as is alleged in the plaint? 4. Were there houses in suit not liable to be given by way of security by defendant No. 2 and were they not liable to be attached and sold in connection with the debts contacted by Hira Lal? 5. Whether the suit is barred by limitation? 6. Is the suit barred also by the provisions of Order XXI, Rule 58(2) of the Civil Procedure Code in view of the fact that objections have been dismissed right up to the appellate stage? 7. Is the suit undervalued and the Court fee paid is insufficient? 8. Was the house of schedule No. 1 built in favour or Smt. Ved Vati and the house of Schedule No. 2 in favour of the rest of the plaintiffs. If so, its effect? 9. To what relief, if any, are, the plaintiffs entitled.
(3.) The parties led evidence oral and documentary. Hira Lal and his wife who were defendant Nos. 2 and 3 absented themselves and did not take part in the further proceeding of the suit. Four witnesses namely Gorelal, Ramesh Kumar, Rameshwar and Sunderlal were examined by the plaintiffs. The State of U.P. did not examine any witness. The Trial Court came to the conclusion that Pansari Lal had executed a Will dated 11.1.1971 and the said Will has been proved by Ramesh Kumar, P.W. 3. It ultimately concluded that in view of the aforesaid Will, Hira Lal, the loanee has 1/4th share in the house described in Schedule-B and has no share in the house described Schedule-A, consequently decreed the suit in part.;