( 1 ) THIS appeal has been filed by plaintiff against the judgment and decree dated 22-4-1996 passed in Civil Suit No. 5-A/95 by First Additional District Judge, seoni.

( 2 ) THE suit of plaintiff is for declaration that he is having share in the suit house and defendants No. 2 to 8 have no right, title or interest therein; the plaintiff further prayed that he is entitled for partition, separate possession and compensation for use of the suit property by defendants 2 to 8. The family tree of plaintiff and defendants is as under :

( 3 ) THE suit house is constructed on plot no. 95/2 and Plot No. 96/3, a map thereof (Contd. on Col 2) is annexed to the plaint. On the ground-floor of this house defendants 2 to 8 are residing, on first floor the plaintiff and on the second floor defendant No. 1 resides. Kapoor Chand chaurasiya purchased this house from one babulal Lakhera on 19-11-1951. Kapoor chand died issueless on 11-4-1988. Plaintiff Sunderlal and defendant No. 1 Tejilal are the nephews of Kapoor Chand. his third nephew was Chhiddilal who had since died. Defendants No. 2, 3, 5 to 8 are the sons and daughters of chhiddilal and defendant No. 4 is his widow. One Hukum Chand was the elder brother of Kapoor Chand who died in the year 1956-57. Chhiddilal is son of hukum Chand. Mool Chand was younger brother of Kapoor Chand who died in the year 1934 whose sons are plaintiff Sunder lal and defendant No. 1 Teji Lal. Name of wife of Kapoor Chand is Smt. Budhha Bai who died on 21-12-1981. Earlier to the death of Kapoor Chand, on 9-11-1987 chhiddilal died. All these facts are undisputed. Similarly it is also not disputed that on 5-9-1980 late Kapoor Chand executed a will which was registered on 6-9-1980.

( 4 ) ON the death of Kapoor Chand defendant Nos. 2 and 3 namely Mukesh Kumar chaurasiya and Rakesh Kumar Chaurasiya instituted proceedings for mutation in Nazul office in which the present plaintiff on 8-8- 1988 filed objections and challenged their right, title and interest in the suit house. Plaintiff himself on 6-8-1988 submitted an application in Nazul Office for his mutation in which objections were filed by defendants nos. 2 and 3. The Nazul Officer, after examining both the applications vide its order dated 13-3-1991 directed to mutate the names of plaintiff and defendants. An appeal which was preferred before the collector was pending till the suit was decided.

( 5 ) ACCORDING to plaintiff, Kapoor Chand was the sole and exclusive owner of the suit property, his three nephews whose names are described hereinabove lived with him. As mentioned hereinabove, a Will was executed by Kapoor Chand on 5-9-1980 by which he bequeathed the suit house in three equal shares to his three nephews namely plaintiff-Sunderlal, defendant No. 1 Teji Lal and deceased Chhiddilal. On 9-11-1987 chhiddilal passed away and after his death, kapoor Chand breathed his last on 11-4-1988. The wife of Kapoor Chand Budhha Bai died during the lifetime of Kapoor Chand on 21-12-1981. According to plaintiff, as chhiddi Lai died during the lifetime of kapoor Chand, his share which was bequeathed to him by Kapoor Chand in his will lapsed and that share formed a part of the residue of Kapoor Chand's estate to be inherited by his heirs on his death. Thus, according to the plaintiff, defendant No. 1 and he succeeded to 1/3rd share each of the suit house as per the Will and remaining l/3rd portion which was bequeathed to chhiddilal was also devolved on plaintiff and defendant No. 1 because Chhiddilal died during the lifetime of Kapoor chand and therefore no right would devolve on defendants 2 to 8.

( 6 ) THE defendants 2, 3, 4, 6 to 8 filed their joint written statement and pleaded that the suit property was not the self-acquired property of Kapoor Chand. It was denied that he was sole and exclusive owner of the suit property. They further denied that they were living on account of implied consent of Kapoor Chand. These defendants, however, admitted the e