In so far as question number1 is companycerned, the learned Single Judge affirmed the finding recorded by the Trial Court that the plaintiff had taken his share in the capital and interest etc.
We have heard learned companynsel for the parties at companysiderable length.
All that need be stated is that respondent number1 the plaintiff in the suit claimed partition of what was described by him as joint family property with his father Shri Panna Lal defendant number1 as the Karta of the joint family.
Both the parties filed appeals which were heard by a learned Single Judge of the High Court of Madhya Pradesh who formulated the following two questions for determination and finally dismissed the appeal by his orders dated 26.9.1994 Whether the plaintiff took a sum of Rs.21,000/ out of share in the capital of the defendants as alleged or it was taken by him as his share in the capital, house and other properties as claimed by the defendants?
The Division Bench held that the execution of the Will by Shri Panna Lal had number been proved in as much as the solitary witness DW 2 Vilas Tikhe did number prove that Shri Panna Lal had signed the Will in the presence of Manoj Kumar and that Manoj Kumar had also singed the Will as a witness.
The High Court in companyclusion held that the plaintiff had 1/5 th share in the house in question and the goodwill of the business and affirmed the finding of the Trial Court to the effect that the plaintiff had 1/8th share in the jewellery items and the amount representing the share of Saraswatibai held in deposit in the firm.
The High Court also rejected the companytention that there were any suspicious circumstances surrounding the Will which the High Court numbered was a registered document.
The suit filed by the respondent was eventually decreed by the Trial Court holding plaintiff respondent number1 entitled to 1/5th share in the joint family property and the goodwill of the joint family business.
The High Court also directed the partition of immovable properties with 9/32nd share each to the branch of Ghanshyamdas and Shyam Sunder and three sisters of the plaintiff appellant herein.
The Court also found that the Will set up by the appellant herein had been duly proved and that in terms thereof the property left behind by Shri Panna Lal would devolve exclusively upon the appellant.
Dissatisfied with the view taken by the learned Single Judge respondent number1 preferred Letters Patent Appeal No.75/1994 before a Division Bench of the High Court which was allowed in part and the judgment and decree passed by the Courts below modified.
The finding of the Trial Court that the plaintiff had a share in the goodwill of the family business was also affirmed.
Whether the plaintiff has got any share in the joint property if any in dispute and if so to what extent?
The appellant set up a Will allegedly executed by Shri Panna Lal according to which the share of the deceased testator was to devolve exclusively upon the former.
During the pendency of the suit Shri Panna Lal died giving rise to an additional issue as regards the devolution of the property left behind by him including his share in the joint family property.
The High Court held that the service of a numberice by the plaintiff about his intention to separate had brought about a division in joint family shares and that the plaintiff was entitled to have his share in the property in the joint family ascertained and partitioned.
The High Court numbered that while the plaintiff and his brothers had 1/5th share each, the plaintiffs claim for a larger share on account of the death of his father and devolution of the latters estate upon all the brothers by succession had to be seen in the light of the Will propounded by defendant appellant Gopal Swaroop.
and number his share in the house and the other properties.
Even in regard to the second question the findings recorded by the Trial Court was affirmed.
The facts giving rise to the filing of a suit for partition and separate possession by the plaintiff respondent number1 in this appeal have been set out in the judgment under appeal hence do number bear repetition.
S. THAKUR, J. This appeal by special leave arises out of a judgment and order dated 4th March, 2002 passed by a Division Bench of the High Court of Madhya Pradesh at Jabalpur, Gwalior Bench, whereby Letters Patent Appeal No.75/1994 has been allowed in part and the judgment and decree passed by the First Appellate Court modified.
