2015 Supreme(Raj) 1145
RAJASTHAN HIGH COURT
Arun Bhansali, J.
Harish Chandra & Ors. - Appellant
Versus
Vidhya Rani & Anr. - Respondent
S.B. Civil First Appeal No. 13 of 1985.
Decided On : 5-01-2015
Advocates:
For the Appellant:M.R. Singhvi Senior Advocate assisted by, Bhavit Sharma, Advocate.
For the Respondent:R.K. Thanvi Senior Advocate assisted by, Narendra Thanvi, Advocate.
Headnote:A. Hindu Law – partition of suit property challenged on the ground that it is not a HUF property- suit property was mortgaged by SB when he entered in service in1928-property was purchased in 1947 and sold in 1954- it is held that all the relevant transaction were in the name of SB and there is no evidence of a joint family fund in 1928- decision of trial court is reversed and hereby set aside.
B. Hindu Law – it is held that blending of ancestral property in personal property by the coparcener is not valid in law as he same amounts to conversion of ancestral property to personal property.
C. Limitation Act, 1963, Articles 69 and 70 – wife’s claim for return of jewelry given as Stridhan which is in possession of her mother-in-law and brother-in-law- Wife left her matrimoninal home soon after the death of her husband on 07.08.1962-partiotion suit filed in 1973 which is after four years of death of her father-in-law- it is held that no proof of jewellary being in the possession of the Defendants- decision of trial court is not justified and hereby is set aside.
D. Succession Act, 1925, Sections 2(h) and 63 –will presented is considered as a holograph as it is in the writing of the testator-it is held that in case of a will, evidence is to be considered differently to ascertain proper attestation and execution of will.
E. Evidence Act, 1872 Section 45 and 73-the report of private expert was focused only on the signature of the will and not on the handwriting- as the case is of holograph handwriting must be examined- it is held that the lower court erred in its judgment- petition is hereby allowed with directions to obtain report of Forensic Science Lab for handwriting.
F. Succession Act, 1925, Section 63 – will discarded by the lower court on ground of being suspiscious- it is held that not mentioning of joint properties and depriving widow-ed daughter-in-law and his son cannot be held as suspicious.
JUDGMENT :
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 along with interest @ 1% per month w.e.f. 03.08.1969, a sum of Rs. 744/- along with 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 de
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