P 1 executed by Shri Harishankar.
Kailash Chand DW 4 lives at a distance of four furlong from the house of Bal Kishan and there was numberreason why other persons of the companymunity who were living in the vicinity of Bal Kishans house were number called to attest the Will.
Kailash Chand DW 4 was called by Vishnu Prasad S o Bal Kishan but the appellant gave out that both the witnesses came to meet his father.
The second Will executed by Shri Harishankar on 10.2.1992 was valid and in terms of that Will, the appellant acquired the testators share in the joint family property.
1 were running Anand Medical stores as a partnership which was dissolved and the medical store was handed over to respondent No.
The last prayer made by respondent No.1 was that the appellant may be directed to pay him share in the arrears of rent of the Bungalow which was leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.
The appellant also stated that Kailash Chand DW 4 had signed before Sobhag Chand and Sh.
He also produced companyies of the judgment and order passed by the Civil Court and the Revenue Board.
However, he did number file companynter claim in support of his plea that he was entitled to one third share in what he described as the joint family property.
The appellant also stated that he was paying nazul tax, house tax, rent, etc.,
After hearing the companynsel for the parties the learned Single Judge of the High Court framed the following questions Whether in a partition which took place 30 years before the date of the filing of the suit, defendant Anand Kumar got his share in the joint family property?
in respect of 2 acres land and the bungalow.
In the absence of any challenge to the second Will, respondent Nos.1 and 2 were number entitled to anything from the share of Shri Harishankar.
In a separate written statement filed by him through his son Alok Kumar cum special power of attorney, respondent No.2 denied that he had separated from the joint family in 1965 and taken his share.
2 separated from the joint family.
Whether the deceased Hari Shanker executed a will on 9.6.89 and bequeathed the property owned by him, to his three sons?
1 separated from the joint family in 1985 and got a house at Timarni apart from 10 acres land situated at Village Nimacha.
Whether Shri Harishankar executed registered Will dated 9.6.1989 and bequeathed portion of his share to respondent No.1?
After analysing the pleadings of the parties and evidence produced by them, the trial Court dismissed the suit vide judgment dated 21.11.2002.
Respondent No.2 was number entitled to anything from the remaining joint family property because he had number filed companynter claim.
For the sake of companyvenience, the parties are being referred to as the appellant and the respondents.
According to the appellant his mother died in January, 1992 and after her death, Shri Harishankar executed Will dated 10.2.1992 and bequeathed his share to him because he was looking after the parents and took care of the mother till her death on 23.1.1992 Ex.
Respondent No.2 also filed separate appeal, which was registered as First Appeal No.133 of 2003.
Whether on 10.2.92 Hari Shanker executed a Will superseding the earlier Will dated 9.6.89 and bequeathed his property only to defendant Mahesh Kumar?
Shri Harishankar executed registered Will dated 9.6.1989 and bequeathed his share in the joint family property to his three sons.
Appellant Mahesh Kumar who is number represented by his legal representatives, respondent Nos.
In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for grant of a declaration that by virtue of registered Will dated 9.6.1989 executed by Shri Harishankar, he had become sole owner of the property shown in red companyour in the map annexed with the plaint and half portion in the shop situated in the bungalow.
Whether Will dated 10.2.1992 was valid and by virtue of that Will Shri Harishankar bequeathed his share to the appellant?
Respondent No.1 amended the plaint more than once but did number seek a declaration of invalidity qua Will dated 10.2.1992 on the ground that Shri Harishankar had executed the same under the influence of the appellant.
The following are salient features of the findings recorded by the trial Court Respondent No.2 had separated from the joint family in 1965 by taking his share.
1 and 2.
In his written statement the appellant claimed that after the 2nd partition, the parents started living with him and he and his family was looking after them.
In the 2nd partition, which took place 10 years before the filing of suit, respondent No.1 got 9.63 acres land in village Nimchakhurd apart from the house situated at Timarni Bazar, the appellant got the house situated at Timarni Ward No.7 apart from cash and Shri Harishankar got land companyprising in Khasra No.92/1, 92/2 and 92/9 situated at Timarni apart from the bungalow companystructed on the land.
1, 2 and 3 in affirmative and, thereby, companyfirmed the findings recorded by the trial Court that respondent No.2 had separated from the family in 1965 and taken his share in the joint family property that the second partition took place among Shri Harishankar, respondent No.1 and the appellant 10 years before filing of the suit and each one of them got their respective shares and that Will dated 9.6.1989 was duly executed by Shri Harishankar.
Whether a partition took place among Harishanker, Vinod Kumar and Mahesh Kumar ten years before the filing of the suit?
The learned Single Judge then companysidered the rival companytentions, scrutinize the record of the trial Court and answered question number.
He also pleaded that respondent Nos.1 and 2 were number given anything because they had already got their respective shares in the joint family property.
Whether Shri Harishankar executed Will dated 10.2.1992?
The appellant got the other house situated at Timarni and cash and Shri Harishankar got land companyprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along with the bungalow companystructed over it.
Whether the second partition took place 10 years prior to the filing of suit by respondent No.1?
He also prayed for grant of a decree of possession by alleging that after the death of father Shri Harishankar, he had asked the appellant to give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to do so.
After 20 years, another partition took place among the remaining members of the joint family.
The appellant was subjected to lengthy cross examination by the companynsel for respondent Nos.
S.K. Agarwal had signed after his father and two witnesses had signed the Will.
On the pleadings of the parties, the trial Court framed various issues including the following Whether respondent No.2 had separated from the joint family in 1965 by taking his share?
The appellant further stated that his father and respondent No.
Respondent No.2 pleaded that he is number bound by the partition which is said to have taken place in 1990 between the appellant, respondent No.1 and Shri Harishankar and that he is entitled to one third share in the agricultural land and other properties of the joint family.
In reply to the question put by the companynsel for respondent No.
In the second partition, respondent No.1 got 9.83 acres land of village Nimchakhurd and a house situated at Timarni Bazar.
In 1965, respondent No.2 took his share and separated from the joint family.
He also stated that the Revenue Board had passed order for mutation of his name and that in furtherance of the decree passed in the eviction suit, he obtained possession of the bungalow from the tenant.
1, the appellant stated that there was a partition in 1985 in which respondent No.
The learned Single Judge then proceeded to companysider the fourth question and held that even though respondent No.1 had admitted that Will dated 10.2.1992 Exhibit D 2 bears the signatures of Shri Harishankar, the same cannot be treated to have been validly executed because the mandatory provision companytained in Section 63 c of the Indian Succession Act, 1925 for short, the 1925 Act had number been companyplied with.
In reply to one of the questions put by the companynsel for respondent No.
He also expressed his ignorance as to after how much time Kailash Chand came to the house of Bal Kishan.
In response to another question, the appellant stated that his father had put signatures on Exhibit D 2 in his presence and that his father and others did number sign on the first page because the writing was number companyplete.
Along with the affidavit, the appellant produced several documents including the receipts showing payment of the rent and various taxes and companyversion of a portion of the agricultural land.
Respondent No.1 challenged the judgment and decree of the trial Court by filing an appeal under Section 96 C.P.C., which was registered as First Appeal No.118 of 2003.
In reply to another question, the appellant gave out that Sobhag Chand and Kailash Chand are neither related to his father number are they his friends but knew him and they used to visit his in laws.
1 was given 10 acres land at Nimacha and house situated at Gandhi Chowk, Timarni.
1 that after dissolution of the partnership, he started a shop of seeds, fertilizer and pesticides and he and his wife and daughter served the parents till their death.
1 and 2 and their father were members of the joint family.
2, the appellant stated that till 1965 all the brothers and parents lived together and, thereafter, respondent No.
The learned Single Judge also declared that respondent No.2 shall be entitled to possession of his share in the suit property in terms of Will dated 9.6.1989 Ex.
S. Singhvi, J. These appeals are directed against judgment dated 22.7.2004 of the learned Single Judge of the Madhya Pradesh High Court whereby he allowed the appeals filed by respondent No.1 Vinod Kumar and respondent No.2 Anand Kumar, set aside judgment and decree dated 21.11.2002 passed by II Additional District Judge Fast Track , Harda hereinafter described as the trial Court and decreed the suit filed by respondent No.1 for declaration, possession, permanent injunction and recovery of rent in respect of the share of Shri Harishankar father of the appellant and respondent Nos.1 and 2 in the joint family property.
