RAMESH CHAND & OTHERS Vs. KISHORI LAL

JUDGEMENT

(1.) The present Regular Second Appeal is maintained by the appellants against the judgment and decree passed by learned District Judge, Hamirpur, H.P, in Civil Appeal No.130 of 1995, dated 11.11.2002, whereby the learned District Judge, Hamirpur, H.P, had set aside the judgment and decree passed by learned Civil Judge (Junior Division)-I, Hamirpur, District Hamirpur, H.P, in Civil Suit No.149 of 1993, dated 13.9.1995.

(2.) Briefly stating facts giving rise to the present appeal are that appellants/defendants (hereinafter referred to as 'defendants') filed a suit for declaration against the respondents/plaintiff (hereinafter referred to as 'the plaintiff') alleging that Will of the suit land to the extent of 1/21 share entered in Khata No.16, Khatauni No.17, Khasra No.56, measuring 4 marlas, 23/798 shares entered in Khata No.15, Khatauni No.16, Khasra Nos.97, 99 and 101 measuring 2 marlas and 1/35 shares in Khara No.17, Khatauni No.18, Khasra No.166, measuring 7 marlas, situated in Tika Bela, Tappa Jalari, Tehsil Nadaun, District Hamirpur, H.P (hereinafter referred to as 'suit land') as shown in the ownership and possession of defendants, as per entries in the revenue record. The land to the extent of 1/21 share entered in Khata No.109, Khatauni No.121, Khasra Nos.55, 58, 60 and 62 measuring 1 Kanal 18 marlas, out of total land measuring 40 kanals 4 marlas, was entered in the name of Smt. Mungri Devi. Defendants being very clever person have allegedly managed the execution of Will dated 10.6.1992, Smt. Mungri Devi being illiterate, was not in a position to understand the consequence of the execution of Will. Defendants have thus managed alienation of the entire movable and immovable property of Smt. Mungri Devi, through the Will in question. They are threatening to enter the mutation of the suit land, on the basis of fake and fictitious Will and in case succeeded to do so, plaintiff allegedly likely to suffer an irreparable loss. Hence, the suit for declaration to the effect that Will dated 10.6.1992 of the suit land is forged and fictitious document and as such not binding on the plaintiff.

(3.) The suit has been resisted and contested by the defendants by filing written statement and has taken the preliminary objections qua suit is bad for non-joinder of necessary parties, not maintainable in the present form and plaintiff estopped by his act and conduct from filing the suit. On merits, it has been contended that defendants are owner-in-possession of suit land. The Will is not a fake and fictitious document. The same rather is a document, which has been legally and validly executed by their mother, Smt. Mungri Devi in their favour, as per her last will in sound disposing mind. Smt. Mungri Devi was competent to execute the Will and has rightly executed the same in their favour in presence of respectable persons and even got the same registered before the Sub Registrar, Nadaun.