- (1.) The unsuccessful defendant has come up in appeal against the judgement and decree of the first appellate Court affirming on appeal those of the trial judge, whereby the suit of the plaintiff for possession by way of partition of the suit property was decreed.
(2.) The facts :- Smt Brahmwati widow of Sham Phul Singh the real brother of the defendant-appellant filed a suit for possession of 1/2 share of the house in dispute by way of partition. It was claimed that the house in dispute belonged to Madho Prasad who had two sons, namely, Sham Phul singh and the defendants. Smt. Brahmwati claimed herself to be the widow of Sham Phul Singh. She sought separation of 1/2 share of the house in dispute by way of partition. The trial judge decreed of the trial Judge decreed the suit holding that the house in dispute was a joint property of the parties to the lis. The defendant dissatisfied with the judgment and decree of the trial judge assailed the same in the first appellate Court. During the pendency or the appeal, the plaintiff died. A dispute arose as to who are the legal representatives of the deceased Sudarshana Kumari claimed herself to be the sole legal representative of the deceased. She set up her title on the basis of a will executed by the plaintiff in her favour. The defendant-appellant also claimed that he was the legal representative of the deceased being her husband's real brother. The first appellate Court asked the trial Court to hold an inquiry as to who were the legal representatives of the deceased plaintiff. The trial Court after permitting the claimants to establish their plea bound that the will executed by the plaintiff in favour of Sudarshana Kumari was valid and that she was the sole heir and legal representative of the deceased. Before the first appellate Court, the defendant again challenged the validity of the will executed by the plaintiff in favour of Sudarshana Kumari. The first appellate Court, on appraisal of entire evidence, came to a conclusion that the will executed by the plaintiff in favour of sudarshana Kumari was valid.
(3.) Undisputably, the property in dispute belonged to Madho Parsad. He had two sons, namely, Sham Phul Singh and Ram Phul Singh. Sham Phul Singh was succeeded to by his widow Smt. Brahmwati. She had 1/2 share in the property in dispute, No fault can be found with the conclusion arrived at by the Courts below that the plaintiff and defendant had 1/2 share each in the property in dispute. The finding recorded by the first appellate Court that the will executed by the plaintiff in favour of Sudarshana Kumari is valid. Having gone through the evidence produced on the record, I find no infirmity in the conclusion arrived at by the first appellate Court that the will executed by the plaintiff in favour of Sudarshana Kumari is valid.;