KANTA DEVI & OTHERS Vs. NIRMALA & ANOTHER

JUDGEMENT

(1.) The instant Regular Second Appeal stands directed against the impugned judgment and decree rendered on 5.1.2005 by the learned District Judge, Mandi, H.P. in Civil Appeal No. 104 of 1999 whereby he set aside the judgment and decree of 16.10.2004 rendered in Civil Suit No. 133/45/149/2002 by the learned Civil Judge (Jr. Div) Sarkagaht, District Mandi, H.P.

(2.) The brief facts of the case are that one Badru was jointly owner in possession of the land comprised in Chew No. 68/36 min Khatauni No. 89 khasra Nos. 480, 480/1, 481, 891, 894, 899, 901, 903, 904, 943, 944, 946, 948, 950, 951, 954, 956, 961, 1017, 1040, 1053, 1058, 1081, 1094, 1221, 1225, 1230, 1232 kitas 28 measuring 1-71-73 hectare situated in village Mohin, (for short "the suit land") with Sh. Baldev Singh. Smt. Badru died on 7.11.1994. It is alleged that appellant No. 1 herein (for short plaintiff No.1) is the daughter-in-law of the deceased Badru and appellants No. 2 to 4 herein (plaintiffs No. 2 to 4) are respectively the grandchildren of deceased Badru. The plaintiffs used to live jointly with the deceased Badru but the respondents herein (for short the defendants) setup a false and fictitious will alleged to have been executed in their favour by the deceased whereas in fact Badru had not executed any such will. It is further alleged that in fact Badru had executed a will of her property in favour of the plaintiff No.1 on 4.11.1994 in presence of other witnesses of the locality and when the same was produced before the Assistant Collector, 2nd Grade, the attestation of the same was deferred as the defendants claimed that a will has been executed in their favour on 3.12.1992. It is further alleged that the ill in favour of the plaintiff No.1 is a valid will executed by deceased Badru and being her last will is binding on the parties but on the basis of the will of 3.12.1992 the defendants are interfering with the possession of the plaintiffs in the suit land, hence the instant suit.

(3.) The defendants contested the suit and filed written-statement. The defendants have taken the ground of maintainability and want of cause of action. On merit, it is submitted by the defendants that deceased Badru had been living with them and as such executed a valid will of her property in their favour. The will of 4.11.1994 is alleged to be a false and fictitious document and as such, it is prayed that the suit be dismissed.