TILAK RAM Vs. DHANI RAM AND OTHERS

JUDGEMENT

(1.) The present appeal has been filed by the appellant-defendant against judgment passed by the Court of learned Additional District Judge, Mandi in Civil Appeal No. 47 of 2004 dated 28.12.2006 vide which, the appellate Court has dismissed the appeal filed by the present appellant and upheld the judgment and decree passed by the Court of learned Civil Judge (Junior Division), Chachiot at Gohar in Civil Suit No. 24 of 2002 dated 14.01.2004.

(2.) This appeal was admitted on the following substantial questions of law on 29.11.2010:

(3.) Brief facts necessary for the adjudication of the present case are that the plaintiffs/respondents (hereinafter referred to as 'plaintiffs') filed a suit for declaration and injunction to the effect that the suit land was recorded in joint ownership and possession of plaintiffs and Smt. Dromti, Wd/o late Sh. Som Dutt and one another as per revenue records. According to the plaintiffs, the suit land was earlier owned and possessed by one Sh. Poushu, grand father of plaintiffs No. 1 and 2 and great grand father of plaintiffs No. 3 to 5. After the death of Sh. Poushu, the suit land was inherited by two sons, namely Tana and Mastu. Thus, the suit land was ancestral, joint Hindu family and coparcenary property of the plaintiffs. It was further averred that Tana had three sons, namely Tulsi Ram, Hari Ram and Rameshwar. Tulsi Ram was the father of plaintiffs No. 3 to 5. Mastu died leaving behind one son, Som Dutt and Dromti was the widow of said Som Dutt. Som Dutt had died issueless and after his death, his property was inherited by the plaintiffs being coparceners and legal heirs of the husband of Smt. Dromti. As per the plaintiffs, after the death of Dromti, they went to Patwari Halqua to inform about her death. There they came to know that defendant had come to Patwarkhana with an alleged Will of Smt. Dromti qua the suit land. Plaintiffs on inquiry came to know that the alleged Will had been executed on 17.12.1994 which was procured by defendant qua the suit land, which was a result of clear manipulation on the part of defendant, who had played an active role in the execution and registration of the said Will in collusion and in connivance with the scribe and attesting witnesses of the same, which was without the consent and knowledge of the testator. According to the plaintiffs, the Will was neither a genuine nor valid one and late Smt. Dromti had not executed any such Will nor otherwise she could have had legally bequeathed the said property to the defendant because the property was ancestral, joint Hindu family and coparcenary property of the parties. It was further stated in the plaint that the alleged Will was shrouded with suspicious circumstances as Dromti was an old and ailing woman of more than 80 years of age and she besides being feeble was also not mentally capable of expressing her free mind. According to the plaintiffs, the alleged Will was the outcome of mis-representation and collusion between the defendants, scribe and witnesses as the testator during her life time never disclosed the alleged Will to the plaintiffs who are her husband's, brothers and nephews. As per the plaintiffs, they were looking after and rendering all services to Dromti and there was no occasion for her to execute the alleged Will in favour of the defendant.