MONA DEVI Vs. AMBA DUTT SHYARMA

JUDGEMENT

(1.) This Regular Second Appeal is directed against the judgment and decree, dated 19.10.2012 passed by the learned District Judge (Forests), Shimla in Civil Appeal No. 41-S/13 of 2012/10.

(2.) 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the respondents/plaintiffs (hereinafter referred to as "the plaintiffs" for the sake of convenience) filed a suit against the appellant/defendant (hereinafter referred to as the "defendant" for the sake of convenience) for declaration, injunction and in the alternative for possession. According to the plaintiffs, Ganga Dutt was exclusive owner in possession of the suit land. He had no male issue. He had only one daughter namely Mona Devi. She was married and residing in her matrimonial home. The plaintiffs used to look after and maintain late Ganga Dutt during his life time. He executed a will on 3.2.2004, Ext.P10 of his entire movable and immovable properties in favour of the plaintiffs as well as defendant in equal shares. The factum of the will was reported to Halqua Patwari and the mutation of inheritance was also entered on the basis of the will, but the Assistant Collector 2nd Grade Kotkhai, attested mutation No.31 dated 28.3.2005 of Chak Rehwat in favour of the defendant ignoring the will. The mutation of inheritance sanctioned in the name of the defendant is wrong and illegal.

(3.) The suit was contested by the defendant. According to the defendant, late Ganga Dutt was having no male issue. She was only daughter of late Ganga Dutt. The plaintiffs are sons of brother of late Ganga Dutt. Marriage of the defendant was solemnized with Prem Chand, resident of village Machiwra. She along with her husband Prem Chand was residing with late Ganga Dutt in village Bhamrara and Gudel for the last 16 years. She had looked after her mother Radhi Devi and her father late Ganga Dutt. Ganga Dutt was suffering from asthma and he died on 18.3.2004. She denied that the plaintiffs ever rendered services to late Ganga Dutt during his life time. According to her, Ganga Dutt remained hospitalized in various hospitals. Her children were residing with late Ganga Dutt and she was having ration card with late Ganga Dutt at village Gundel. The will set up by the plaintiff is result of fraud and misrepresentation.