KRISHANU AND ANOTHER Vs. DESH RAJ AND OTHERS

JUDGEMENT

(1.) This appeal is directed against the judgment, decree dated 07.06.2006 passed by District Judge, Bilaspur, in Civil Appeal No.102 of 2004, reversing judgment, decree dated 25.11.2004 passed by Civil Judge(Senior Division), Bilaspur, in Civil Suit No.25/1 of 2000, decreeing the suit of appellants.

(2.) The facts, in brief, are that appellants had filed a suit against respondents for declaration and consequential relief of injunction. The pleaded case of the appellants is that they are joint owners in possession of the land described in the plaint. The respondents 1 to 3 have wrongly been recorded as owners in possession of 1/4th share on the basis of illegal Will allegedly executed by Smt.Naraini Devi, widow of Gokal, mother of appellants, respondent No.4 Daulat Ram and proforma respondents 5 to 7. The suit land is ancestral property and, therefore, Smt. Naraini Devi, was not entitled to execute any Will in respect of her share in the suit land to respondents 1 to 3. After the death of Gokal, predecessor-in-interest, of the parties, his sons and widow jointly inherited the suit land.

(3.) The further case of the appellants is that respondent No.4, father of respondents 1 to 3, is a clever and greedy person, who prevailed upon Smt. Naraini Devi and after exercising undue influence and playing fraud, got the Will executed by Smt. Naraini Devi on 30.03.1994 in favour of his sons respondents 1 to 3. Smt. Naraini Devi was 80 years old at the time of execution of alleged Will. She wanted to execute the Will of her share in the suit land in favour of appellants and respondent No.4, so that her share did not go to her daughters, who were married. The respondent No.4 took the benefit of the old age of Smt. Naraini Devi and got executed the Will in favour of his sons. There was no occasion for Smt.Naraini Devi to exclude the appellants while executing the Will. It has been pleaded that Will in question is not binding on the appellants. The respondent No.4 after the death of Smt. Naraini Devi managed attestation of mutation on the basis of Will in favour of respondents 1 to 3 on 20.01.2000. Smt. Naraini Devi died on 04.12.1999. In these circumstances, the suit was filed.