GANPATU Vs. HIMA AND OTHERS

JUDGEMENT

(1.) The appellant was plaintiff in Civil Suit No.65/90 which was dismissed by learned Sub Judge Ist Class, Court No.III, Mandi on 30.9.1992. The learned District Judge, Mandi in Civil Appeal No.114/1992 on 22.1.1998 has affirmed judgment, decree dated 30.9.1992.

(2.) The facts in brief are that appellant had filed a suit for declaration to the effect that Will dated 9.8.1980 executed by Kishan in favour of Naiku predecessor-in-interest of respondents No.1 and 2 is void having no legal effect on her rights. The further case of the appellant is that Will dated 9.8.1980 is the result of fraud, undue influence and mis-representation, Kishan Singh was an old man about 89 years of age at the time of his death. Kishan Singh was an illiterate village rustic person. On account of his old age and illiteracy; he was not in a position to understand what is good and bad for him. Naiku used to reside with Kishan Singh and he was under her influence. Kishan Singh died leaving behind land more specifically described in the plaint. Kishan Singh was the father of appellant and father-in-law of Naiku. The appellant has claimed relief of joint possession along with Naiku in the suit land.

(3.) The suit was contested by Naiku and Hima daughter of Naiku by filing written statement, in which preliminary objections of limitation, maintainability and appellant is out of possession were taken. On merits, it was pleaded that Kishan Singh had died in the year 1985 and he validly executed Will dated 9.8.1980 in favour of Naiku, Kishan Singh was quite hale and hearty at the time of the execution of Will. It has been denied that Kishan Singh had executed the Will on account of fraud and mis-representation as alleged. On the pleadings of the parties, the following issues were framed:-