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Dwarka Prasad and ors. Vs. Mt. Jasoda Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All958; 147Ind.Cas.999
AppellantDwarka Prasad and ors.
RespondentMt. Jasoda Kunwar and ors.
Excerpt:
- .....a declaration that mt. jasoda kunwar had no interest in the property of her late husband, because sital prasad died joint with the other members of the family. the immediate cause of the suit was the execution by mt. jasoda kunwar of a deed of relinquishment, dated 26th november 1927, in favour of her daughters. (sic) of the pleas taken in defence was that the suit was barred by section 42, specific relief act.2. the learned subordinate judge held inter alia that the suit was so barred. when the facts were disclosed to us, the learned counsel for the appellants admitted that at the date of the suit the plaintiffs were out of possession. this is in accordance with the statement of the plaintiff no. 1, dwarka prasad, who at p. 12 stated:for two years i have been collecting half the rents.....
Judgment:

Mukerji, Ag. C.J.

1. This appeal is very easily disposed of on the ground that it is barred under Section 42, Specific Relief Act. At p. 3 of the printed record there is a pedigree. The claim related to the property of Sital Prasad whose widow Mt. Jasoda Kunwar was defendant 1. The plaintiffs, who represented two of the four branches into which Bani Prasad's family descended, asked for a declaration that Mt. Jasoda Kunwar had no interest in the property of her late husband, because Sital Prasad died joint with the other members of the family. The immediate cause of the suit was the execution by Mt. Jasoda Kunwar of a deed of relinquishment, dated 26th November 1927, in favour of her daughters. (sic) of the pleas taken in defence was that the suit was barred by Section 42, Specific Relief Act.

2. The learned Subordinate Judge held inter alia that the suit was so barred. When the facts were disclosed to us, the learned Counsel for the appellants admitted that at the date of the suit the plaintiffs were out of possession. This is in accordance with the statement of the plaintiff No. 1, Dwarka Prasad, who at p. 12 stated:

For two years I have been collecting half the rents for my own share and Badri's share, and, Madan Mohan has been collecting the other half of the rents for himself and Brij Kali.

3. Brij Kali (vide the pedigree at p. (sic) is one of the daughters of Jasoda Kunwar, and Madan Mohan is one of the defendants, being a descendant of Beni Prasad through one of his sons Ram Saran Singh. It is thus clear that Dwarka Prasad and Badri Prasad, who between them represented the entire body of plaintiffs, are in possession of one-half of the property and Madan Mohan and Brij Kali are in possession of the other half. This other half includes Sital's one-quarter share.

4. As the plaintiffs were out of pos-session at the date of the suit, they had no right to ask for a pure declaratory decree. The suit was accordingly rightly dismissed. Without entering into the merits of the case, we hold that the appeal is not maintain able and we dismiss it with costs.


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