- (1.) This first appeal under Section 96 CPC is directed against judgment and decree dated 31.10.1984 passed by Additional District Judge, Udaipur, whereby, in a suit for partition filed by plaintiffs Smt. Vidhya Rani and Dinesh Chandra a preliminary decree has been passed and plaintiffs have been held entitled to 5/12th share in suit house situated at 88 Bhopalpura, Udaipur, 14 1/2 Tola of gold articles and 1/4th share in rest of the articles indicated in Schedule -B, 1/4th share in a sum of Rs. 30,000/ - deposited with London Store alongwith interest @ 1% per month w.e.f. 03.08.1969, a sum of Rs.744/ - alongwith interest @ 1% per month from 28.08.1977 till date of decree and future interest @ 6% per annum and has further decreed the suit regarding the jewellery and other articles indicated in Schedule -A.
(2.) The facts in brief may be noticed thus : plaintiffs Smt. Vidhya Rani and Dinesh Chandra, who are wife and son of late Shri Satish Chandra filed a suit on 20.09.1977 against Harish Chandra, Smt. Chandra Kunwar and Smt. Sudha Rani ­ brother -in -law, mother -in -law and sister -in -law respectively of plaintiff Smt. Vidhya Rani with the averments that plaintiff Smt. Vidhya Rani is daughter -in -law of Shivnandan Ji Bhatt and plaintiff No. 2 Dinesh Chandra is grand son of said Shivnandan Ji Bhatt, Shivnandan Ji Bhatt was son of Shri Bhawani Shanker Ji; Satish Chandra ­ husband of Smt. Vidhya Rani and father of Dinesh Chandra died on 07.08.1962 and Shivnandan Ji Bhatt died on 03.08.1969; at the time of death of Shivnandan Ji Bhatt hosue on Plot No.88 was constructed, which was constructed during the life time of Smt. Vidhya Rani's husband, in which, the plaintiffs have 5/16th share as the said house was ancestral property of the plaintiffs and was property of joint family of the parties; besides the said bungalow, at the time of death of Shivnandand Ji Bhatt in the Bank and with London Store a sum of Rs. 30,000/ - was in deposit, which also being plaintiffs' ancestral property, the plaintiffs have 5/16th share; at the time of marriage of Vidhya Rani she was given jewellery by Shivnandand Ji Bhatt and her father, which was indicated in Schedule -A and was with defendants Harish Chandra and Chandra Kanwar, which they were entitled to receive; the jewellery, goods and utensils left by Shivnandan Ji Bhatt and Satish Chandra at the time of their marriage were with defendant No. 2 Chandra Kanwar, which were indicated in Schedule -B and as the jewellery, utensils and goods were ancestral and joint family property, the plaintiffs have 5/16th share; the plaintiffs gave notice dated 10.10.1973 to the defendants, to which, a wrong reply was given by defendant No. 1 Harish Chandra and the claim about Will executed by Shivnandan Ji Bhatt was incorrect as he had not executed any Will and, even if, any Will is proved by the defendants, still Shivnandand Ji Bhatt had no right to bequeath property of her husband's share and, therefore, the so called Will does not affect the rights of the plaintiffs; Shivnandan Ji Bhatt had ancestral house at Jodiyon Ki Oal, Udaipur, two shops in the market, agricultural land and houses in village Khartana, agricultural lands in villages Ladani and Changedi, which all were ancestral properties, which were sold by Shivnandand Ji Bhatt and the amount was used for purchase of plot and construction of house and was blended with the personal property and in this manner Shivnandan Ji Bhatt made all his property as ancestral property; plaintiff's husband was government servant with Rajasthan Revenue Board since 01.05.1952 and used to give his salary to Shivnandan Ji Bhatt and Shivnandan Ji Bhatt, plaintiffs and defendants were members of joint family and the properties were never partitioned between them; the cause of action arose on 10.10.1973; ultimately, it was prayed that properties be partitioned by metes and bounds and decree of possession be passed regarding 5/16th share.
(3.) A written statement was filed by defendant Nos. 1 and 2 ­ Harish Chandra and Chandra Kanwar denying the averments made in the plaint; it was contended that the house was constructed by Shivnandan Ji Bhatt from his personal income after death of Bhawani Shanker, the property was not ancestral and the house was constructed in 1954 i.e. from 01.09.1954 and the house was not joint family property; no amount was deposited with the Bank as Shivnandan Ji Bhatt had no bank account; a sum of Rs. 30,000/ - was deposited with London Store, which was received by him on retirement towards Gratuity and Provident Fund and was his self acquired and not ancestral and, therefore, the plaintiffs have no share in the said sum and the house; it was denied that the jewellery given by Shivnandan Ji Bhatt and plaintiff's father were with defendants; plaintiff's husband Satish Chandra was serving at Jaipur at the time of death of his first wife and when he (Satish Chandra) died, he was serving at Ajmer and his entire property was there only and nothing belonging to plaintiffs has been received by the defendants and is not in their possession; the goods indicated in Schedule -B were received by the defendants, however, none of the goods belonged to Satish Chandra; the goods were not ancestral and it was claimed that Shivnandan Ji Bhatt had executed Will regarding his self acquired property before his death and, therefore, his property was with the defendants and under the Will plaintiffs were not given anything; the fact about execution of Will by Shivnandan Ji Bhatt was clearly indicated in reply to the notice from plaintiffs and even before reply to the notice by letter in the year 1970 the status of Will was indicated to plaintiffs and the Will was the last operative Will of Shivnandan Ji Bhatt and in view of the Will the plaintiffs have no right in the self acquired property of Shivnandan Ji Bhatt; after the house was constructed in the year 1954 -55 for second marriage of Satish Chandra, the house situated at Jadiyon Ki Oal was sold by Shivnandan Ji Bhatt alongwith his brother Harinandan on 07.05.1956 and 50% of the same came to his share; the so called shop had already gone out from the share of Bhawani Shanker to his brother Champa Lal in the year 1938, which was sold by his legal representatives on 12.05.1958; in village Changedi ­ Bhawani Shanker had no land or house, even at village Ladani they had no property; the agricultural land at village Khartana was personal property and, therefore, the same is owned by him; the land was sold in the year 1956; the allegations regarding blending were denied; the contribution made by Satish Chandra to Shivnandan Ji Bhatt was denied and right to claim partition was also denied; in additional plea, it was stated that the jewellery gifted to plaintiff ­ Vidhya Rani at the time of her marriage was with her only; ultimately, it was prayed that the suit be dismissed.;