BELASIA BAI SIYA Vs. PRADEEP KUMAR

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 08-01-1996 passed by the 2nd Additional Judge to the court of District Judge, Rajnandgaon in Civil Appeal no. 6-A/1993 reversing the judgment and decree dated 29-04-1993 passed by the 1st Additional Civil Judge Class ii, Rajnandgaon in Civil Suit No. 80-A/1991, the appellants/defendants have preferred this appeal.

(2.) FOLLOWING substantial questions of law have been framed in this appeal:-

(3.) ADMITTEDLY, Ramdeo and Ramprasad were brothers. Mst. Kalibai, widow of Ramprasad was the owner of the lands admeasuring area 8. 07 acres comprised in various khasra as detailed in para 2 of the plaint and situated in Village Charbhatta, P. H. No. 86, Revenue Circle khujji, Tahsil and District Rajnandgaon (henceforth "the suit lands" ). Ramprasad had predeceased Mst. Kalibai who also died issueless on 28-04-1980. The appellants/defendants i. e. Belasia Bai and Kusum Bai are the widow and daughter of Bhajanlal who was the son of Ramdeo. Respondent No. 2-Gitabai is the widow of shivprasad and respondent No. 1-Pradeep Kumar is her son. After the death of Shivprasad, Gitabai went with pradeep Kumar to live with Mst. Kalibai. After sometime belasia Bai, the appellant/defendant No. 1 also came to live with Mst. Kalibai along with her daughter kusumbai. However, after some time, she started living with the sister of Mst. Kalibai. The respondents/plaintiffs instituted Civil Suit No. 80-A/1992 for a declaration that the respondent/plaintiff no. 1-Pradeep Kumar is the sole owner of the suit lands since Mst. Kalibai had, on 17-05-1978 executed a registered Will whereby she had bequeathed her entire moveable and immovable property to Pradeep Kumar after her death. This Will was scribed by one Lalit Kumar and execution of Will by Mst. Kalibai was attested by shivnath P. W. 2, Mahesh, Dukalu Ram and Dhirpal. After the death of Mst. Kalibai on 28-04-1980, the respondent/plaintiff No. 2 moved an application for mutation of the name of respondent/plaintiff No. 1-Pradeep Kumar over the suit lands. The Additional tahsildar by order dated 30-06-1984 while disbelieving the execution of Will by Mst. Kalibai on 17-05-1978, declined and ordered mutation in favour of appellants/defendants. An appeal preferred by the respondent/plaintiff before the Sub Divisional Officer, rajnandgaon and second appeal before the Additional commissioner, Raipur and revision thereafter before the board of Revenue, failed. As a result, the respondents/plaintiffs instituted civil suit for declaration of title over the suit lands. The appellants/defendants resisted the suit on the ground that Will dated 17-05-1978 had been got executed from mst. Kalibai by fraud. It was further pleaded that three years prior to her death on 28-04-1980 Mst. Kalibai had become very weak due to prolonged illness and was unable to move about on her own and understand the contents of the Will. She had, in her lifetime declared in a baithka that after her death, respondent no. 2-Gitabai and appellant/defendant No. 1-Belasia Bai would jointly own the suit lands. A counter claim for partition and + share of the suit property was also made in para 14 (B) of the written statement which was filed on 02-12-1987 besides claiming a declaration that the Will dated 17-05-1978 executed by Mst. Kalibai being void was not binding on them.