The judgment emphasizes the importance of proving the execution of a Will as per the requirements of the Succession Act and the Evidence Act, and the need to remove all legitimate suspicions surrounding the Will.

JUDGMENT

1. Present first appeal under Sec. 96 of C.P.C. has been filed against the judgment and decree dtd. 27/8/1998 passed by Fifth Additional District Judge Gwalior, District Gwalior (M.P.) in Civil Suit No.13A/1994 whereby, the civil suit filed by the respondent-plaintiff for declaration, partition and permanent injunction has been decreed.

2. For the sake of convenience, hereinafter, the respondent no.1 will be referred to as the plaintiff, respondent no.2- as defendant no.1 and respondents no. 3 to 14 as defendants no.2 to 13.

3. The relevant facts to decide the appeal are that the plaintiff filed a suit for declaration, partition and permanent injunction in respect to suit house bearing no.25/433 situated at Loko-shed, Tansen Road, Gwalior (M.P.) against the appellant, and other defendants on the allegations. It is alleged in the plaint that deceased Shyamlal was the owner of the suit house. Deceased Shyamlal's daughters are plaintiff and defendant no.1. Shyamlal died on 30/10/1993, therefore, plaintiff- Smt. Sarojbala Tiwari and defendant no.1- Sushila Sharma being the daughter of deceased became successors. Plaintiff - Smt. Sarojbala Tiwari and defendant no.1- Sushila Sharma have equal share i.e. 1/2 each. Deceased Shyamlal did not execute any Will or sale-deed in respect to the suit house. Appellant/defendant no.14 has been receiving the rent from the tenants unlawfully and making obstructions in use of the house. The rent of total accommodation is near about Rs.3490.00 per month. When the plaintiff told the defendant no.1 for partition, she refused for it. In these circumstances, the plaint has been filed for partition and permanent injunction.

4. The defendant no.1 and defendant no.14 filed their separate written statements. The defendant no.14 denied the claim of plaintiff in his written statement and alleged that he was brought up by deceased Shyamlal who had love and affection with him like a son. Deceased Shyamlal in his life time, executed a Will dtd. 27/07/1993 by which 1/3rd share in the house was given to the defendant no.14 on the basis of Will. After the death of Shyamlal, defendant no.14 became co-owner with the plaintiff and defendant no.1 have 1/3rd share in the suit house. It is further pleaded in the written statement that the names of tenants those have been arrayed as defendants no.2 to 13 are not tenants and only eight tenants are in the suit house. The figure of rent as mentioned in the plaint is wrong. The plaintiff suit being false and frivolous deserves to be dismissed with cost.

5. The defendant no.1- Sushila Sharma in her written statement admitted that the suit house was owned by late Shyamlal who was the father of plaintiff and herself. She has further admitted in her plaint that she alongwith plaintiff have equal share i.e. 1/2 each in the suit house. However, she denied having received the rent from the tenants. The defendant no.1- Smt. Sushila has also pleaded that the defendant no.14 is unnecessary party in the suit.

6. The learned trial Court on the pleadings of the parties framed six issues which reads as under;

(i) Whether, the suit house is of the coownership of plaintiff and defendant no.1?

(ii) Whether, tenants defendants no.2 to 13 are tenant in the suit house from whom defendant no.1 has been receiving rent to the tune of Rs.3490.00 per month as such plaintiff is entitled to get half share of the rent from the defendant no.1?

(iii) Whether, the plaintiff is entitled to get house in dispute partitioned half share i.e. 1/2 by mets and bounds?

(iv) Whether, deceased Shyamlal in his life time executed Will on 27/7/1993 to the extent of 1/3 share in favour of Appellant/Defendant no.14?

(v) Whether, Suit has been filed with the collusion of plaintiff and defendant no.1 therefore is not maintainable?

(vi) Relief and cost?

7. After recording of evidence of the parties and hearing them, the learned trial Court decreed the suit by the impugned judgment and decree.

8. Learned counsel for