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2002 DIGILAW 767 (PAT)

Anuragi Devi v. Haribansh Narain Singh

2002-07-18

ASHOK KUMAR VERMA

body2002
Judgment Ashok Kumar Verma, J. 1. This miscellaneous appeal has been filed by plaintiff No. 1, Anuragi Devi, against the order, dated 17.7.1999, passed by Subordinate Judge, VII, Vaishali at Hajipur, in Partition Suit No. 126 of 1998, whereby the learned Subordinate Judge has ordered for the appointment of receiver. The prayer for appointment of the receiver had been made by plaintiff No. 2 Haribansh Narain Singh, who is respondent first party in the present appeal. Partition Suit No. 126 of 1998 had been filed by Anuragi Devi and Haribansh Narain Singh for partition of the property in suit. 2. It was argued by the learned lawyer for the appellant that the petition for appointment of receiver had been filed by Haribansh Narain Singh the plaintiffs No. 2 whereas in the partition suit the appellant Anuragi Devi has also been named as a plaintiff along with Haribansh Narayan Singh. It was submitted by the learned lawyer for the appellant that according to Haribansh Narain Singh himself so long Anuragi Devi is alive Haribansh Narain Singh has no right in her property. The contention of the learned lawyer for the appellant was that the will has not been probated and Haribansh Narain Singh has no right to seek partition on the basis of that will. 3. The contention of the learned lawyer for respondent No. 1 Haribansh Narain Singh was that the Court below has appointed receiver to preserve the property in suit. 4. According to the plaintiffs of the suit, Nokhelal Singh had two sons Ram Sagar Singh and Shiv Sagar Singh and Anuragi Devi is wife of Ram Sagar Singh and he had no male child and he died on 4-2-1992 leaving behind his wife. Shiv Sagar Singh had four sons Dhananjay Singh, Sita Ram Singh, Hriday Narayan Singh and Haribansh Narain Singh. Ram Sagar Singh had executed a registered will on 14.11.1979 in favour of Haribansh Narain Singh who is plaintiff No. 2 and it was stated in the will that after the death of Ram Sagar Singh if Anuragi Devi (plaintiff No. 1) is alive, she will be the owner of the property during her life time and Anuragi Devi has half share in the property of Ram Sagar Singh and after her death that will go to plaintiff No. 2 Haribansh Narain Singh. 5. According to the written statement of defendant Nos. 5. According to the written statement of defendant Nos. 2 and 3, Ram Sagar Singh had died leaving behind his wife and four daughters who are alive. According to these defendants, plaintiff No. 2, Haribansh Narain Singh, had obtained the thumb impression of plaintiff No. 1 Anuragi Devi on blank paper and had also obtained her thumb impression on the vakalatnama by playing fraud on her and plaintiff No. 2 Haribansh Narain Singh has filed the suit with bad intention. As Ram Sagar Singh had died leaving behind his wife and four daughters who are also his heirs and so Anuragi Devi is not entitled to half share in the property. The plaintiff No. 2 Haribansh Narain Singh is not entitled to the share of Anuragi Devi after her death. 6. The petition for appointment of receiver had been filed by Haribansh Narain Singh. It has been stated in the petition that Late Ram Sagar Singh had executed a registered deed of will in favour of Haribansh Narain Singh in respect of his entire property and it was provided in the will that if Anuragi Devi remains alive after his death she will be the owner of the property during her life time. Admittedly, Anuragi Devi is alive and the present miscellaneous appeal has been filed by her. According to the appellant the alleged will said to be executed by Ram Sagar Singh in favour of Haribansh Narain Singh plaintiff No. 2 is forged, fabricated, collusive, inoperative and manufactured document. Ram Sagar Singh died in the year 1992 leaving behind his wife and four daughters and after his death the appellant along with her four daughters inherited the property of Ram Sagar Singh, In the petition which had been filed in the Court below by Haribansh Narain Singh (plaintiff No. 2) for appointment of receiver it has been stated that the plaintiff Anuragi Devi has executed deed of Atainama on 18.1.1999 in favour of Manoj Kumar Singh. 7. According to the appellant, Anuragi Devi, she is entitled to 1/5th share in the property left by Ram Sagar Singh and so she has rightly executed the deed of gift in favour of her grandson (nati) Manoj Kumar Singh. 8. The facts clearly show that Late Ram Sagar Singh had died leaving behind his wife and daughters. 9. 7. According to the appellant, Anuragi Devi, she is entitled to 1/5th share in the property left by Ram Sagar Singh and so she has rightly executed the deed of gift in favour of her grandson (nati) Manoj Kumar Singh. 8. The facts clearly show that Late Ram Sagar Singh had died leaving behind his wife and daughters. 9. In the facts and circumstances of the case and in view of the fact that the partition suit was filed in the names of Anuragi Devi and Haribansh Narain Singh whereas the petition for appointment of receiver had been filed by Haribansh Narain Singh alone, the impugned order, dated 17.7.1999, passed by the Subordinate Judge, VII, Vaishali at Hajipur, is not tenable in law. Therefore, this miscellaneous appeal is allowed and the impugned order, dated 17.7.1999, passed by the learned Subordinate Judge is set aside.