MAHAPRASAD Vs. BADI BAI

JUDGEMENT

(1.) This appeal is by the plaintiff, which was admitted by a Bench of this Court on following substantial question of law:--

(2.) The defendants No. 1 and 2 filed the written statement in which inter alia the claim set-up by the plaintiff was denied. It was pleaded that plaintiff is in possession of one-third share of the suit land i.e. the share of his wife. It was further pleaded that no order of mutation was made in favour of the plaintiff. The plaintiff got his name mutated in the revenue records fraudulently, which was subsequently set aside vide order dated 25-9-2005 and the defendants No. 1 and 2 as well as plaintiff's wife's name was directed to be recorded in respect of one-third share each in the suit land.

(3.) The trial Court vide judgment and decree dated 30-4-2010 inter alia held that though the plaintiff has based his claim on the basis of Will dated 27-2-1961 (Ex. P/20), yet in evidence, in paragraph 19, it has been averred that he had purchased the suit land from Sevak and on that basis he got his name mutated in the revenue records. It was further held that the plaintiff has not examined any attesting witnesses to prove the Will. Accordingly, the trial Court came to the conclusion that the execution of the Will has not been proved in accordance with section 68 of the Indian Evidence Act, 1872 as well as section 63(c) of the Indian Succession Act, 1925. The aforesaid decree was affirmed in appeal.