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1 - 10 of 15 (0.27 seconds)Gurupad Khandappa Magdum vs Hirabai Khandappa Magdum And Ors on 27 April, 1978
26. Shri Battas then finally relied on Gurpupad Khandappa Magdum v. Hirabai Khandappa Magdum and Ors., AIR 1978 S.C. 1239, and drew my attention as to how the shares of the heirs in the property of a deceased co-percener are to be ascertained. There is no quarrel about the proposition of law, as held by the Hon'ble Supreme Court in this citation. In the earlier portion of this judgment I have already held that at the time of the execution of the will (Exhibit P1) Sawan Singh had the subsisting interest in the property to make a testamentary disposition in favour of his sons. That will could only challenged by his widow or by his daughter. Both these persons were made as defendants and they did not contest the suit nor the will. Neither the widow nor the daughter have claimed any interest in the suit property for themselves.
Section 35 in The Indian Evidence Act, 1872 [Entire Act]
Section 77 in The Indian Evidence Act, 1872 [Entire Act]
Teg Singh And Others vs Charan Singh And Another on 23 March, 1977
20. A perusal of the above case law would clearly strengthen my observation that the declaratory decree no doubt enures for the benefit of all the reversioners but its effect would be with the death of the last male holder and till the day of his death, he would be in a position to make a testamentary disposition. The only challenge which could be given to the will could come from the quarters of Smt. Sant Kaur or Smt. Gurdial Kaur, but both of them opted to remain absent from the suit itself making a clean path for the plaintiffs to get a decree for the entire suit land.
The Amending Act, 1897
The Hindu Succession Act, 1956
Section 6 in The Indian Evidence Act, 1872 [Entire Act]
Section 7 in The Indian Evidence Act, 1872 [Entire Act]
Mahant Dhangir And Another vs Madan Mohan And Others on 28 October, 1987
21. Even otherwise, the first Appellate Court in the present case ought to have invoked the provisions of Order 41 Rule 33 of the Code of Civil Procedure. Admittedly, Gurdial Kaur and Sant Kaur were made by the plaintiffs as defendants 9 and 10. No doubt, the plaintiffs did not make a specific prayer in their suit that decree for possession should also be passed in favour of defendants No. 9 and 10 generally with them. But Order 41 Rule 33 C.P.C. gives ample power to the Appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further ordetr either decree or order as the case may require, and this power could be exercised by the first Appellate Court notwithstanding that the defendants filed the appeal against the judgment and decree of the trial Court. It has been held in Mahant Dhangir and Anr. v. Madan Mohan and Ors., AIR 1988 Supreme Court 54 that in order to invoke the provisions of Order 41 Rule 33 and 22, C.P.C. the Appellate Court should see that parties before the lower Court should be there before it. The question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal.