JAGDISH SINGH Vs. DHANNA BAI

JUDGEMENT

(1.) HEARD Sri K. K. Dubey, learned Counsel for the appellants and sri Harish Chandra Mishra on the point of admission of the second appeal for hearing and I have also perused the judgments of the courts below and other documents filed by the parties. From perusal of the documents shows that the appellants instituted O. S. No. 430 of 1986 for cancellation of the Will dated 17. 4. 1986 executed by Pancham Singh in favour of defendant smt. Dhanna Bai. It has been alleged in the plaint that plaintiffs are sons and widow of Pancham Singh. That Pancham Singh inherited the property situated at Nandpura and Orchcha. That Pancham is used to visit Jhansi in order to look after the property situated in Jhansi and he engaged the defendant Smt. Dhanna Bai for domestic purposes for clearing of the house etc. That Pancham singh was suffering from cancer and he was weak and frail and mentally not sound. He remained hospitalized for treatment. As the defendant was looking after Pancham Singh. Hence taking the absence of appellant she got executed a will in her favour on 17. 4. 1986 and this Will was also registered. But as pancham Singh was not in fit state of mind and there was no necessity to execute a Will in favour of the defendant when there were his legal heirs. Hence this Will was fabricated. And on the strength of Will she occupied the property of Nandpura, Jhansi. She was not the legally wedded wife of Pancham singh. Because his wife Smt. Kausa Bai was alive at the time of execution of will. That no marriage took place of the defendant with Pancham Singh after divorce from earlier husband. The defendant contested the suit and filed written statement and denied from the allegations of the plaint. It has been admitted that Pancham Singh was suffering from cancer and he remained hospitalized in Germany hospital Jhansi. Further alleged that relation were strained in between Pancham Singh, his first wife and sons. Hence about 30-35 years earlier Pancham Singh deserted his first wife according to the custom and came in jhansi to live there. And she married with Pancham Singh according to custom of the community and her name was recorded in the revenue record as the wife of Pancham Singh. It is wrong to allege that she was the domestic servant of pancham Singh. The cremation was also performed by her. At the time of execution of Will plaintiff No. 3 was not alive. The property situated at Jhansi was purchased by Pancham Singh and this property was delivered to the defendant by Will. That the Will was properly executed. Both the parties produced oral as well as documentary evidence to prove the facts in issue and on the basis of evidence produced by the parties, the Trial Court dismissed the suit vide judgment and decree dated 10. 10. 2000 by the Additional Civil Judge, (S. D.) Jhansi. Against this judgment and decree of the Trial Court C. A. No. 97 of 2000 Jagdish Singh and another v. Dhanna Bai was instituted and this appeal was also dismissed with costs vide judgment and decree dated 30. 10. 2007.

(2.) IT has been argued by learned Counsel for the appellants that it is wrong to allege that Smt. Dhanna Bai was legally wedded wife of Pancham singh. That Smt. Dhanna Bai in her statement stated her self as wife of Sunnu. When she is alleging herself wife of Sunnxi then as to how she married with pancham Singh is not clear. That Annexure-17 is the copy of the statement of dhanna Bai. It has also been argued that it has not been proved that Dhanna bai divorced her earlier husband Sunnu. No evidence have also been produced and also have not been proved that Pancham Singh divorced his first wife Smt. Kausa Bai so as to marry with Dhanna Bai. He stated that there are variation and contradiction in the statement of Dhanna Bai and other circumstance regarding the period of marriage with Pancham Singh. That Dhanna Bai is not legally wedded wife and she was only domestic servant. Hence, there was no question of executing the Will by Pancham Singh in favour of Dhanna Bai of the property situated in Jhansi. That this Will was fabricated and forged as a result of playing fraud. That at the time of execution of the Will Pancham singh was suffering from cancer and taking the benefit of illness this Will was fabricated. That there was no necessity to Pancham Singh to execute the Will because his son and wife was alive. It has also been argued that at the time of execution of the Will wife of Pancham Singh i. e. Smt. Kausa Bai was alive. But in the Will it has been stated that his wife had died. That Smt. Kausa bai is as defendants No. 3 in the suit. That no custom has been proved regarding chhutam Chhutta in the community and learned Counsel also cited certain judgments in this connection.

(3.) LEARNED Counsel for the respondent opposed the argument of appellants' counsel and he further argued that no substantial question of law is involved in this case. The Will was duly proved by the evidence according to the evidence Act. That Smt. Dhanna Bai was the wife of Pancham Singh and after divorce to earlier husband she remarried with Pancham Singh. That Pancham singh divorced according to custom prevalent in the community to his earlier wife and he remarried with the respondent. That overwhelming documents have been produced to show that Dhanna Bai is the legally wedded wife of pancham Singh. That the Will is registered and admissible in evidence. That the property in dispute for which the Will was executed was acquired by pancham Singh and by the Will ancestral property was delivered to the appellants. That the Will was executed out of love and affection.