RUKMANI DEVI (SINCE DECEASED) Vs. PREM LATA

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 15.5.2012, passed by the learned Additional District Judge (Fast Track Court), Kullu, in Civil Appeal No.28 of 2011, affirming the judgment and decree dated 14.10.2011, passed by the learned Civil Judge (Sr. Division), Manali, District Kullu, H.P., in Civil Suit No.43 of 2008.

(2.) Briefly stating the facts giving rise to the present appeal are that the plaintiff/appellant (hereinafter to be called as 'the plaintiff') filed a suit for declaration to the effect that the land comprised in Khata Khatoni No.55/105, Khasra Nos. 1202, 1218, land measuring 1­18­41 hectare and Khata Khatoni No.56/106 to 56/114, Khasra No.1126, 1174, 1176, 1178, 1179, 1220, 1250, 1251, 1291, 1300, 1413, 1501, 1182, 1183, 1184, 1188, 1189,1217,1269,1451,1452,1348,1180,1219, 1252,1253, 1263, 1268, 1297,1232,1334,1496,1292,1293,1415,1152,1127,1175,1177, 1260,1261,1301,1325, 1333, 1497 and 1226 total land measuring 4­57­81 hectares as per jamabandi for the year 2000­01, to the extent of 1/4th share situated at Phati Soyal, Kothi Barshai and two houses wherein the plaintiff is residing, as per site plan (hereinafter to be called as 'suit property'). The plaintiff has alleged that she had solemnized marriage in the year, 1957 with Atma Ram(deceased) and at that time Atma Ram had given two bighas of Ropa and five bighas and 10 biswas of Bathal land to her as 'Istridhan', which is adjoining to the the house and is in exclusive possession of the plaintiff since then.

(3.) As per the applicant, thereafter, he had developed love and affection with respondent/defendant No.1 (hereinafter called the 'defendant No.1), who is daughter of Tulsi, the God­sister of the plaintiff. Tulsi, lateron settled in the house of Atma Ram, however, she could not bear any child from the loins of her husband, Atma Ram. As per the plaintiff defendant No.1 was the daughter of Tulsi from her previous husband. In the month of March,2008, Atma Ram fell ill and had grown very weak and was mentally infirm and treatment was given to him in Manali hospital. Defendant No.1 used to take Atma Ram under the pretext of treatment to Manali and used to take his signatures on many papers. Plaintiff averred that he never executed any Will. After his death, the last rites of Atma Ram were performed by the plaintiff. The defendants never rendered any services to Atma Ram during his life time. After about 15 days of the death of Atma Ram to utter shock and surprise of plaintiff, the defendant No.1 and her husband started saying that they have got the Will of Atma Ram. The defendant No.1 procured Will in her favour fraudulently under the pretext of treatment of her husband. On 3.7.2008, plaintiff again was shocked to know that the defendant had got herself entered as nominee of Atma Ram in the bank accounts in connivance with the bank officials. Hence, the suit for declaration to declare the Will Ext.DW5/B, null and void and decreeing the suit for permanent prohibitory injunction restraining the defendants from interfering into the ownership and possession of plaintiff over the suit property in any manner and defendant No.1 be directed through a decree of mandatory injunction to hand over the entire amount withdrawn by her from the banks.