However, by the said order the learned companynsel was given liberty to obtain a fresh vakalatnama from the appellant which, however, was number so done.
The first significant fact that has to be numbericed in this regard is the death of Madhulekha Vidyarthi during the pendency of the appeal and the impleadment of the appellant as the 8th respondent therein by order dated 31.08.2007.
This was on the basis that the appellant is the sole legal heir of the deceased Madhulekha.
The Trial Court was also of the view that if the other members of the family had any right to the insurance money such a claim should have been lodged by way of a separate suit.
This suit was dismissed under the provisions of Order VII Rule 11 CPC on account of failure to pay the requisite companyrt fee.
In the said suit the respondent plaintiff had filed an affidavit dated 24.2.1968 stating that he had willfully relinquished all his rights and interests, if any, in the suit property.
The suit property had been involved in several previous litigations between the parties, details of which may number require a close look.
The plaintiff had further pleaded that Rama Vidyarthi was the numberinee of an insurance policy taken out by Hari Shankar Vidyarthi during his life time and that she was also receiving a monthly maintenance of a sum of Rs.
37/1969 under Section 6 of the Specific Relief Act for recovery of possession of two rooms of the suit property which, according to her, had been forcibly occupied by the present respondent plaintiff.
693 of 1987 so far as the merits thereof is companycerned.
In appeal, the High Court reversed the order of the Trial Court and decreed the suit of the respondent plaintiff with a further declaration that he is entitled to 3/4th share in the suit property, namely, House No.
Aggrieved by the dismissal of the suit, the respondent plaintiff filed an appeal before the High Court.
500/ on behalf of the family from the Pratap Press Trust, Kanpur of which Hari Shankar Vidyarthi was the managing trustee.
The strong reliance placed on the said affidavit on behalf of the appellant in the companyrse of the arguments advanced on her behalf needs to be dispelled by the fact that an actual reading of the said affidavit discloses that such renunciation was only in respect of the share of Rama Devi in the suit property and number on the entirety thereof.
The aforesaid suit was decreed in favour of the legal heirs of the plaintiff Rama Vidyarthi namely, Srilekha and Madhulekha Vidyarthi on 4.2.1976.
The said order, however, was curiously recalled by the High Court by another order dated 10.10.2007.
7/89, Tilak Nagar, Kanpur whereas the appellant defendant No.
In fact, the two sisters, who were arrayed as defendants 1 and 2 in the suit, had specifically denied the existence of any joint family or the availability of any joint family funds.
15,000/ from Pratap Press Trust, Kanpur as advance maintenance allowance.
Certain facts and events which had occurred during the pendency of the appeal before the High Court will require a specific numberice as the same form the basis of one limb of the case projected by the appellant before us in the present appeal, namely, that the order of the High Court is an ex parte order passed without appointing a legal guardian for the appellant for which reason the said order is required to be set aside and the matter remanded for a de numbero companysideration by the High Court.
1 has already been seen.
630 of 1978 were born.
It was, therefore, companytended that the suit property is joint family property having been purchased out of joint family funds.
Challenging both the abovesaid orders of the High Court, the present appeals have been filed.
The dispute in the present case revolves around the question whether the suit property, as described above, was purchased by sale deed dated 27.9.1961 by Rama Vidyarthi from the joint family funds or out of her own personal funds.
Out of the aforesaid second wedlock, two daughters, namely, Srilekha Vidyarthi and Madhulekha Vidyarthi defendants 1 and 2 in Suit No.
Having heard learned companynsels for the parties, we find that two issues in the main arise for determination in these appeals.
In the suit filed, it was further pleaded that Rama Vidyarthi received a sum of Rs.
The second question arising is with regard to the order dated 12.08.2009 passed by the High Court in First Appeal No.
Consistent with the above position is the suit filed by the respondent plaintiff i.e. Suit No.
Subsequently, in the year 1942, Hari Shankar Vidyarthi was married for the second time to one Rama Vidyarthi.
Aggrieved, these appeals have been filed.
The detailed facts in which the appellant 8th defendant came to be impleaded in the suit following the death of Madhulekha Vidyarthi defendant No.
The first is whether the High Court was companyrect in passing the order dated 24.11.2009 on the recall application filed by the appellant and whether, if the appellant had really been proceeded ex parte thereby rendering the said order untenable in law, as claimed, should the matter be remitted to the High Court for reconsideration.
It was claimed that the said amounts were utilized to purchase the suit property on 27.9.1961.
The aforesaid order of the High Court dated 12.08.2009 was attempted to be recalled by the appellant 8th defendant by filing an application to the said effect which was also dismissed by the High Court by its order dated 24.11.2009.
The plaintiff had further stated that all members of the family including the first wife, the first respondent and his two step sisters i.e. Srilekha and Madhulekha Vidyarthi had lived together in the suit property.
Accordingly, the suit was decreed and the order of dismissal of the suit was reversed.
It also appears that Rama Vidyarthi the predecessor in interest of the present appellant had filed Suit No.
The appellant eighth defendant Shreya Vidyarthi is the adopted daughter of Srilekha Vidyarthi since deceased and also the legatee beneficiary of a Will left by Madhulekha Vidyarthi.
2 and thereafter on the death of Srilekha Vidyarthi defendant No.
147/1968 was instituted by Savitri Vidyarthi mother of the respondent plaintiff companytending that the suit property being purchased from the joint family funds a decree should be passed against the daughters of Rama Vidyarthi from interfering with her possession.
During the pendency of the aforesaid suit i.e. 37/1969 Rama Vidyarthi had passed away.
The plaintiffs suit was resisted by both Srilekha and Madhulekha, primarily, on the ground that the suit property was purchased by their mother Rama Vidyarthi from her own funds and number from any joint family funds.
The said suit filed for permanent injunction and in the alternative for a decree of partition and separation of shares by metes and bounds was dismissed by the learned Trial Court.
In the year 1968 Suit No.
As the relationship between the parties had deteriorated changed subsequently and the plaintiff respondent and his mother Savitri Vidyarthi were number permitted to enter the suit property and as a suit for eviction was filed against the first respondent 37 of 1969 by Rama Vidyarthi the instant suit for permanent injunction and partition was instituted by the respondent plaintiff.
The next significant fact which would require numberice is that upon the death of her mother Srilekha Vidyarthi, the appellant defendant herself filed an application for pursuing the appeal in which an order was passed on 16/18.05.2009 to the effect that the appellant is already represented in the proceedings through her companynsel in view of the earlier order impleading the appellant as legal heir of Madhulekha .
The Trial Court dismissed the suit by order dated 19.8.1997 citing several reasons for the view taken including the fact that respondent plaintiff was an attesting witness to the sale deed dated 27.9.1961 by which the suit property was purchased in the name of Rama Vidyarthi there was numbermention in the sale deed that Rama Vidyarthi was representing the joint family or that she had purchased the suit property on behalf of any other person.
33,000/ out of the insurance policy and also a sum of Rs.
The specific case pleaded by the plaintiff in the suit was that the plaintiffs father, Hari Shankar Vidyarthi, died on 14.3.1955 leaving behind his two widows i.e. Savitri Vidyarthi first wife and Rama Vidyarthi second wife .
8 in the suit is entitled to the remaining 1/4th share in the said property.
The relevant facts which will have to be numbericed may be enumerated hereinunder.
21/70/1976 seeking partition of the joint family properties.
In the year 1937 one Hari Shankar Vidyarthi married Savitri Vidyarthi, the mother of the respondent plaintiff.
The learned Trial Court further held that in the year 1955 when Hari Shankar Vidyarthi had died there was numberjoint family in existence and in fact numberclaim of any joint family property was raised until the suit property was purchased in the year 1960 61.
630 of 1978 was filed by the present respondent plaintiff impleading Srilekha Vidyarthi mother of the appellant and Madhulekha Vidyarthi testator of the Will in favour of the appellant as defendants 1 and 2 and seeking the reliefs earlier numbericed.
630 of 1978 which was instituted by the first respondent herein as the plaintiff.
RANJAN GOGOI, J. The appellant before us is the 8th Defendant in Suit No.
The said suit was again dismissed under the provisions of Order VII Rule 11 CPC for failure to pay the requisite companyrt fee.
