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2015 (7) TMI 1310 - SC - Indian LawsGrant of the decree of partition of her share in the B suit schedule property - self acquired property of the deceased-first defendant - Whether the property bearing No.45, Sant Nagar, East of Kailash, New Delhi, has been constructed out of joint family funds or out of funds received by the first defendant from late Shri R.D. Singh, the husband of the plaintiff? - Held that:- The First Appellate Court was not right in making an observation in the impugned judgment that the plaintiff is only entitled for the refund of the said amount from the deceased first defendant even though there is substantive and positive evidence on record to the effect that the amount sent by the deceased husband of the plaintiff was utilised by the deceased first defendant for the purpose of construction of the building upon the suit schedule B property. The physical possession of the entire suit schedule B property could not have been given to the second defendant in the light of the undisputed fact that the physical possession of the second floor of the schedule B property is with the plaintiff. Further, the plaintiff is in the possession of the second floor in her independent right of her husbands share after they separated from the family. Therefore, the alleged gift deed executed by the deceased-first defendant in favour of the second defendant during the pendency of the proceedings with respect to the suit schedule B property is not legally correct as it is the joint family property and even otherwise the same cannot be acted upon by the parties - the courts below have failed to exercise their jurisdiction and power properly, thereby causing a grave miscarriage of justice to the rights of the plaintiff upon the B schedule property. The plaintiff must succeed for one more alternate reason viz. that the deceased-first defendant died during the pendency of the proceedings and therefore, Section 8 of the Hindu Succession Act, 1956, will come into operation in respect of the suit schedule B property even if it is considered that the said property is a self acquired property of the deceased-first defendant. The said property of the deceased-first defendant would devolve upon the deceased husband of the plaintiff along with the second defendant and the other daughters of the deceased-first defendant as they are the joint owners of the said property by virtue of being Class I legal heirs of the deceased-first defendant as per the schedule to the Hindu Succession Act, 1956, upon the death of the first defendant - the plaintiff is entitled for 1/4th share in the suit schedule B property. The impugned judgments and decree passed by the trial court and the First Appellate Court are hereby set aside, in so far as B schedule property is concerned - civil appeal allowed.
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