ROSHAN LAL Vs. KARTAR CHAND

JUDGEMENT

(1.) The appellants are the plaintiffs, whereas, respondents are the defendants and they will be referred to as such in this judgment. In this appeal under Section 100, C.P.C. the plaintiffs are aggrieved by the decree and judgment dated 3-1-1994 passed by the District Judge, Hamirpur whereby the appeal of the defendant Kartar Chand was accepted and decree and judgment dated 7-11-1986 of the Senior Sub-Judge, Hamirpur was set aside. The Senior Sub-Judge, Hamirpur had decreed the suit of the plaintiffs and the plaintiffs were held entitled to succeed to the estate of Shri Sunder to the extent of -th share on the basis of Will dated 6-1-1969 Ex. P. 2 and accordingly they were declared owners in possession thereof. The adoption deed dated 15-6-1978 Ex. D.1 gift deed dated 15-6-1978 Ex. D.2 and Cancellation deed dated 28-4-1980 Ex. D.3 were declared null and void.

(2.) The brief facts of the case are that one Shri Hushnaki was the common ancestor of the parties who was owner in possession of land measuring 403 kanals 5 marlas, situate in Tika Naugran, Tehsil and District Hamirpur. On his death his five sons, namely, S/Shri Munshi, Sunder, Khazana, Thunia and Sant Ram inherited his estate in equal shares i.e. 1/5th share each. The plaintiffs are the successors of Khazana, Munshi and Sant Ram, whereas, the defendants are the successors of Thunia. Shri Sunder had died issueless and dispute between the parties is in respect of his estate. According to the plaintiffs, Shri Sunder had executed a Will dated 6-1-1969, Ex. P.2, whereby he had bequeathed his property in favour of the successors of his four brothers in equal shares i.e. 1/4th share each and accordingly they had claimed -th share of the property of Shri Sunder under the said Will and so far the remaining 1/4th of his property falling to the share of the defendants is concerned, their case was that they were inducted as tenants-at-will and they had acquired its proprietary rights. Therefore, the plaintiffs had sought declaration to the effect that they have become owners of the property of Shri Sunder to the exclusion of the defendants. Further case of the plaintiffs was that the adoption deed Ex. D.1 and gift deed Ex. D2 in favour of defendant Kartar Chand and Cancellation deed Ex. D.3 were the result of fraud, mis-representation and undue influence and not binding upon them.

(3.) Defendant Kartar Chand and other defendants filed separate written statements but the defence taken by them was common. They denied the case of the plaintiffs that they were in possession of any portion of the property of Shri Sunder as tenants-at-will, as claimed by them. Though, they have admitted that Shri Sunder had executed a Will dated 6-1-1969, Ex. P.2, but further pleaded that the said Will was cancelled by Cancellation deed dated 28-4-1980 Ex.D3. According to them, Shri Sunder had adopted defendant Kartar Chand as his son in 1961 and thereafter executed an adoption deed dated 15-6-1978, Ex. D.1, who had succeeded to his estate. It was further pleaded by them that Shri Sunder had also executed a gift deed dated 15-6-1978, Ex. D.2 in favour of defendant Kartar Chand whereby he had gifted whole of his property in favour of defendant Kartar Chand who has been in possession thereof. It was denied that any fraud, mis-representation or undue influence was played upon Shri Sunder.