PREMVATI AND OTHERS Vs. VASU DEV

JUDGEMENT

(1.) Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree passed by learned District Judge, Kinnaur Division at Rampur Bushahr, H.P. in Civil Appeal 109/1996, dated 27.9.1999, reversing thereby the judgment and decree dated 19.7.1996 passed by Senior Sub Judge, Kinnaur Division at Rampur Bushahr, Distt. Shimla in Civil Suit No. 137-1 of 1993/92 and dismissed the suit filed by them.

(2.) The subject matter of dispute in the present lis is land called as Kholti measuring about 16 biswas, Kashu Sataina, Khobar Kyar measuring 15 biswas which is part of land entered in Khata Khatoni No. 27/56 and 28/60 situate in Chak Jhana, Khata Khatoni No. 54/123 to 129, 55/136 to 138, 56/139 to 143, 60/143 and 69/147 situate in Chak Dansa, Khata Khatoni No. 70/148 to 152 situate in Chak Jagoni, Khata Khatoni No. 98/304 to 306 situate in Chak Dhar and the houses situate in abadi deh at Village Dansa, the ancestral property of late Lacchman, predecessor-in-interest of the parties to the suit. Lacchman had not acquired any property of his own. The suit property allegedly was co-parcenary property. Sh. Lacchman, their predecessor had died in the month of June, 1988. The respondent (hereinafter referred to as the defendant) allegedly managed the execution of 'Will' Ext. P-1 in his favour qua the land in dispute from deceased Lacchman in the year 1986. He allegedly was ill at that time, hence was not in a fit state of mind nor could have executed a valid Will. The plaintiffs when came to know about the existence of this forged and fictitious Will, requested the defendant not to take any benefit out of it but of no avail and to the contrary the mutations qua the land in dispute were attested on the basis of the Will, which according to the plaintiffs was forged and fictitious on 16.8.1989, 27.12.1989 and 21.2.1991, despite the objections they raised to the attestation thereof. Even after the attestation of the mutation also, they requested the defendant to admit their claim qua the land in dispute but of no avail, hence the suit for decree of declaration that Will dated 30.9.1986 Ext. P-1 was not executed by deceased Lacchman Dass in favour of defendant and the same is void, inoperative and not binding upon the plaintiffs. The mutations attested on the basis thereof were also sought to be declared as null, void and inoperative and the same were also sought to be quashed and set aside.

(3.) In the Written Statement, the defendant had contested the suit on the grounds of limitation, bad for non-joinder of necessary parties, maintainability and valuation etc. etc. On merits, while denying the contentions to the contrary, being wrong, it was pleaded that the land in dispute was inherited by deceased Lacchman from Daya Nand. It is, however, denied that the land was wrongly vested in the name of Lacchman. The deceased Lacchman allegedly rightly acted while executing the Will in question in his favour. It is denied that he had no right to execute the Will in question.