Point of Law: Suit for partition - Partial partition not permissible - Admission of parties - Will duly established and cannot be held to be forge or fabricated one.

JUDGMENT :

SANJAY S. AGRAWAL, J.

1. Challenge to this Appeal preferred by the Plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short ‘the Code of 1908’) is the judgment and decree dated 31.08.2006 passed in Civil Suit No. 44-A/2004 whereby the learned trial Court has dismissed his claim for partition and separate possession. The parties to this Appeal shall be referred hereinafter as per their description before the court below.

2. The facts which are essential to be stated for adjudication of this Appeal are that a suit for partition and separate possession has been made by the Plaintiff Shivnarayan Gupta submitting inter-alia that the properties described in Plaint Schedule ‘A’ situated at village Aarang and Baihar of District Raipur and village Sarekel of District Mahasamund are the Joint Hindu Family properties and they were being managed by his father Manrakhan Lal Gupta. According to the Plaintiff, his father, in the year 1982-83, entrusted and recorded lands in the name of himself, his wife Anusuiya Bai, his sons and their wives and also gave houses to them for better management of the family and it was not intended to be a partition. In pursuance of the said family arrangement, the properties described in Plaint Schedule ‘B’ were recorded in revenue papers in father's name and upon his sad demise on 07.11.1999, the entire ancestral properties were devolved upon him and his legal heirs.

3. Further case of the Plaintiff is that his brother Kamalnarayan Gupta, Defendant No. 3, with whom his father used to live, has created a forged and fabricated Will, said to have been executed by father in his favour on 24.12.1998 and succeeded thereafter to get the mutation order from Revenue Authorities and, thus, trying to set up his individual interest thereon. The Plaintiff has, therefore, been constrained to file the suit in the instant nature claiming 1/5th share over the properties described in Plaint Schedule ‘A’ and/or claiming alternatively 1/6th share over the Plaint Schedule ‘B’ properties, which is recorded in the name of his father.

4. The aforesaid claim of the Plaintiff has been accepted by Defendants No. 1 and 2 namely Vyasnarayan and Jainarayan, the Plaintiff's brothers, while his another brother Kamalnarayan (Defendant No. 3) and mother Smt. Anusuiya Bai (Defendant No. 4) have contested the claim by submitting inter-alia that the properties in question as described in Plaint Schedule ‘A’ have already been partitioned in the years 1978-79 during the lifetime of said Manrakhan Lal Gupta and Revenue papers were thereafter mutated in 1982-83, in which Plaint Schedule ‘B’ properties came in the name of father Manrakhan Lal Gupta. It is contested further on the ground that the alleged deed of Will dated 24.12.1998 was duly executed by father Manarakhan Lal Gupta and based upon it, the Revenue papers were recorded in his (Kamalnarayan) name as per the order dated 31.10.2001 passed by the Tahsildar, Aarang.

5. Smt. Kusum Gupta (Defendant No. 4A), who is the sister of the Plaintiff, contested the claim on the ground that the properties in question have already been partitioned during the lifetime of father and in pursuance thereof, the Revenue papers were also mutated in their names in 1982-83. According to her, the Plaintiff, while instituting the suit, has not disclosed the particulars of the house, i.e. House No. 13/10, situated at Naramadapara, Station Road, Raipur owned by her father and pleaded further that being a daughter, she acquired equal interest of 1/6th share over the properties left by her father.

6. In support, the Plaintiff has examined himself and his aunt (bua) namely Smt. Kamli Bai, the attesting witness of the alleged Will, while Defendant No. 3 Kamalnarayan has examined himself, mother Smt. Anusuiya Bai and the attesting witness Kiran Saheb (brother of his wife) and the scribe (Shobharam) of the alleged Will.

7. After considering the evidence led by the parties, it has been held by the trial