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It was further contended that the plaintiff was admittedly not in possession of the suit properties and suit of the plaintiff, inasmuch as for declaration simplicitor, without claiming the consequent relief of possession and was not maintainable. Reliance was placed on Venkataraja & Ors. Vs. Vidyane Doureradjaperumal (D) Thr. Lrs and others 2013(3) RCR(Civil) 176, Jeeto Vs. Santa Singh 2006(2) RCR(Civil) 547, Mehar Chand Das Vs. Lal Babu Siddique & Ors. 2007(2) RCR(Civil) 628, Vinay Krishna Vs. Keshav Chandra and another 1993 AIR (SC) 957, Basti Ram & Anr. Vs. Nahar Singh (since deceased through LRs) and others 2011(5) RCR(Civil) 888 and Devi Lal Vs. Shokaran & Anr. 2011(2) PLR 787.

It has to be considered, whether Kanta Devi had become the absolute owner of the property which had come to her through a Will executed by her husband and whether the suit for declaration simplicitor was maintainable.

The execution of the Will was not disputed before me. Therefore, it is not necessary to go into that question. The counsel for the appellants had pointed out that the plea raised by them was that the execution of the Will was not denied and their plea was that the Will did not affect their rights.

The next submission of the appellant was that the suit was not maintainable as the plaintiff was not in possession of the property and the suit for declaration simplicitor was not maintainable. The argument has no force. What has to be seen is whether the suit for possession was maintainable during the lifetime of Smt. Kanta Devi. Could a suit for possession be filed by the son when the mother was alive. The answer is emphatically in the negative. The plaintiff, during the lifetime of his mother could not seek possession as under the Will, she had a life interest. The suit was maintainable in the form it was presented. During the lifetime of his mother the plaintiff could only seek declaration regarding the release-deed. It is another matter that Kanta Devi died during trial. The Courts have the power to grant the relief which the plaintiff is found entitled to in the event there is a change in the circumstances during trial.