Non-observance of conditions does not make decree void, only voidable at minor's instance. Will must be proved. Court fees and valuation issues resolved in favor of plaintiffs. Counter claim maintainable.

SUDHIR AGARWAL, J.

1. This is a defendant's appeal under section 96 of Code of Civil Procedure, (hereinafter referred to as CPC) has come up against judgment dated 21.12.2004 and decree dated 3.1.2005, passed by Sri U.S. Tomar, Special Judge (E.C. Act), Moradabad, decreeing Suit No. 975 of 1993 for partition and permanent injunction, holding that plaintiff-respondents have 4/6 share and defendant-respondent, Smt. Beena has share which may be separated and preliminary decree may be prepared. Court has also decreed counter claim of defendant 2.

2. Plaintiff-respondents (Ist set) and plaintiff-respondent-7 (IInd set) instituted O.S. No. 975 of 1993, seeking division of property situated at Mohallah Malviya Nagar, Moradabad to the extent of 4/6 share of plaintiffs and deliver possession thereupon to them. They also sought for a permanent injunction restraining defendant 1, Baldev Raj Ahuja or any of his agents neither to sell any property described in the Schedule "A" attached with the plaint nor raise any construction on the portion of their share. The property described in the schedule is plot no. 32 situated at Mohallah Malviya Nagar, District Moradabad, which includes basement and boundary wall.

3. Plaint case set up is that plaintiffs 1, 2, 4 and 3/1 to 3/4 had a common predecessor namely late Gulshan Kumar and Sri Tulsi Das, father of defendants were closely related and owner of several other properties besides plot no. 32 detailed in Schedule A. After death of Tulsi Das, his entire property was succeeded by his wife son and daughter. Parties entered into an oral family settlement which became part of decree dated 21.03.1978 in Original Suit No. 40 of 1978, Smt. Hukmi Bai and Others vs. Baldeo Raj Ahuja. Smt. Hukmi Bai, mother of plaintiffs 1, 2 and 4, defendants and wife of Tulsi Das, died in 1981. Her share also came to be succeeded by her legal heirs and according to property shown in Schedule A, plaintiff No. 1 succeeded on 7/12 share; plaintiffs 2, 3 and 4 and defendants No. 1 and 2 succeeded to 1/12 share each. Though plaintiffs had total share of 10/12 but in order to avoid any dispute they claim only 4/6 share and seek division by means of law. Several times defendants were requested to have smooth and consented partition of disputed property but they did not agree.

4. Defendant 2 contested suit by filing his own written statement and stated that at the time of institution of Original Suit No. 40 of 1978, signatures of defendants 2 and 3 were obtained on blank paper. It is only after reading the plaint of suit in question he came to know of having not received any property from common ancestors. Claim of plaintiffs- appellants is based on demarcation made by plaintiffs though there is no documents, showing demarcation of partition amongst co-sharers. Counter claim was made by defendant 2 that entire property is to be taken as one and divided amongst co-shearers with share each.

5. Defendant 1 also filed a separate written statement in which he admitted that owner of plot no. 32 and other properties was late Tulsi Das Ahuja.

6. Trial Court formulated 11 issues and subsequently added 6 more issues and these 17 issues are as under:-

1. Whether Smt. Hukmi Bai, mother of plaintiff no. 1 and both the parties, became co- owners of disputed property mentioned at Schedule "A" of the plaint, by virtue of oral family compromise and decree passed by Court of Civil Judge, Moradabad in Suit No. 40 of 1978?

2. Whether plaintiffs have 4/6 share in the property described in Schedule "A" of plaint?

3. Whether disputed property Plot No. 32 Malviyanagar Moradabad was received by Smt. Hukmi Bai only pursuant to family compromise and decree in Suit No. 40/78 passed by Court of Civil Judge?

4. Whether plaintiffs and defendant-2 had any ownership right over the disputed property?

5. Whether boundaries of disputed property Plot No. 32, Malviyanagar, Moradabad is wrongly mentioned in the plaint and its effect?

6. Whether suit of plaintiffs is b