JUDGEMENT
Mahendar Kumar Goyal,J. -
(1.)This first appeal has been preferred against the judgment and decree dated 7.9.2012 passed by learned Additional Sessions Judge (Fast Track) No. 2, Jaipur Metropolitan, Jaipur whereby, the civil suit filed by the appellant-plaintiff (for brevity-'the appellant') against the respondents-defendants (for brevity-'the respondents') for declaration and permanent injunction, has been dismissed.
(2.)The relevant facts in brief are that Shri Dhanpat Rai filed a suit no. 21/73 for partition of ancestral properties belonging to late Purindar Ram; the propositus. Late Jamuna Prasad, husband of the appellant and father of the respondents no. 1 to 6, was one of the defendants in the suit. Preliminary decree was passed on 24.1.1975. In the first appeal filed by Jamuna Prasad along with his brother Ganga Prasad against the preliminary decree, a compromise dated 5.5.1980 was arrived at between the parties agreeing therein that each branch comprising of descendants of three sons of late Pd. Purindar Ram shall be entitled for 1/3rd share each. In the first appeal, the application filed by the respondent no. 1 herein, Smt. Manju Shukla, seeking her impleadment as one of the respondents raising objection against the compromise, was rejected. The first appeal was disposed of by this Court vide its judgment dated 1.9.1986 in terms of compromise dated 5.5.1980. Shri Jamuna Prasad died on 7.1.1987 and his legal representatives were brought on record. During the course of preparation of final decree, the respondent no. 1 moved an application seeking a direction for the Commissioner to divide her 1/7th share out of the 1/3rd share of late Ganga Prasad and late Jamuna Prasad which came to be allowed by the learned trial court vide its order dated 13.7.1990 rejecting the plea of present appellant to have acquired ownership over all the properties left behind by Jamuna Prasad on the strength of will in her favour. This Court, vide its order dated 28.5.1991, set aside the order dated 13.7.1990 in the revision petitions filed there against. The Hon'ble Apex Court, vide its order dated 3.3.1992, while allowing the appeal filed by the respondent no. 1 against the order dated 28.05.1991, granted the appellant i.e. Smt. Shyama Devi liberty to file a separate suit claiming title in the property in dispute on the basis of the will. Thereafter, the present suit was filed with the averments that late Jamuna Prasad had executed a registered will dated 7.3.1986 in her favour whereby she was given absolute ownership over his entire properties. Thus, it was prayed that the appellant be declared to be sole successor and owner of all the properties falling in share of late Jamuna Prasad as described in Schedule 'Ka' alongwith the decree of permanent injunction.
(3.)The respondent no. 1 in her written statement submitted that the suit filed by Dhanpat Rai was for the division of self acquired property and not for ancestral property. It was denied that late Jamuna Prasad had ever executed any will dated 7.3.1986; rather, his signature on it was claimed to be forged. It was averred that at that time he was seriously ill and was not in a fit mental state to execute the will which was executed under the undue influence of respondent no. 2 Shri Deepak Tiwari and his wife Smt. Shashi Tiwari. It was stated that final decree in the suit no. 21/73 with regard to her 1/7th share having already been passed and she being in possession of property falling in her share as its absolute owner, the suit was not maintainable. It was, therefore, prayed that the suit filed by the appellant be dismissed.
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