BIMLA ROHAL Vs. USHA

JUDGEMENT

(1.) This second appeal arises out of the judgment and decree of learned District Judge, Shimla dated December 31, 1993. Facts necessary for the disposal of the appeal, may be noticed thus:

(2.) One Jeet Ram was owner in possession of the property subject matter of dispute, hereinafter referred to as the "disputed property". Jeet Ram died issueless on April 24,1977 at Delhi. After the death of Jeet Ram, defendant Bimla set up a will in respect of the disputed properties. Mutation of inheritance of the disputed properties was attested, on the basis of the will set up by her, in favour of the defendant Bimla on December 26, 1977. Plaintiffs are Daughters of one Jeet Ram resident of Batlana who filed a suit against the defendant claiming adverse possession of the disputed property The suit of the father of the plaintiffs was dismissed. His appeal before the District Judge too was dismissed. Thereafter, the plaintiffs filed the suit, out of which this second appeal arises, on January 19, 1985.

(3.) The case of the plaintiffs was : Deceased Jeet Ram (Testator) used to live in the house of the father of the plaintiffs at village Batlana. He, during his life time, executed a will bequeathing all his properties in favour of the plaintiffs. The will was given to one Thakur Dass son of Ram Dutt resident of village Sanech of Tehsil and District Shimla. The plaintiffs were not aware of this will. They came to know about the existence of the Will few months prior to the institution of the suit when Thakur Dass handed over the will to the mother of the plaintiffs. It was pleaded that the will set up by the plaintiffs was last and valid will of the testator Jeet Ram. The plaintiffs, therefore, were entitled to inherit the disputed properties of the testator. It was the case of the plaintiffs that defendant got the mutation of inheritance, of the "disputed properties" of Testator Jeet Ram, in their favour on the basis of a false and invalid will. The mutation of inheritance attested in favour of the defendant Bimla, of disputed properties, was illegal on face of the will in favour of the plaintiffs. The plaintiffs prayed for a declaration to the effect that they have inherited the "disputed property" of the Testator and mutation of inheritance of the "disputed property" of the Testator attested on 26.12.1977, in favour of the defendant Bimla was illegal, void and was of no consequence. As a consequential relief, permanent injunction was sought against the defendant restraining her from interfering with the possession and rights of the plaintiffs over the disputed property. In alternative, it was prayed that if the defendants were found to be in possession of the "disputed property" or any portion thereof, then decree for possession may be passed in favour of the plaintiffs.