KAMLA Vs. MANGI BAI

JUDGEMENT

(1.) This appeal under Section 384 of the Indian Succession Act, 1925 ('the Act') has been filed against the order passed by the Additional District Judge, Nimbahera dated 17.4.1998, whereby the application filed by the respondents No.1 and 2 under Section 276 of the Act was allowed and a probate of will executed by deceased Bheru Lal dated 6.4.1992 was ordered to be granted to them.

(2.) Brief facts of the case are that Smt. Mangi Bai and Smt. Suhagi Bai, both daughters of Shri Veni Ram filed application under Section 276 of the Act seeking probate of registered will dated 6.4.1992 executed by their brother Bheru Lal, who died on 1.2.1993. It was stated in the application that they were real sisters of deceased Bheru Lal, who died issueless and had no wife and to take care of the fact that there is no dispute in the future, the said will was executed by the deceased Bheru Lal in their favour. It was further indicated that the appellant herein who was impleaded as defendant in the said application had got the land, which was bequeath under the will to them, mutated in her favour by claiming herself to be the wife of deceased Bheru Lal and the said land was acquired for construction of Mansarowar Dam and award in this regard was passed, which was sought to be received by the appellant herein. Ultimately, it was prayed that probate of the said will be issued in their favour.

(3.) Citations of the said proceedings were issued to the appellant, who appeared and opposed grant of probate in favour of the respondents No.1 and 2. It was claimed that the land in question was given to her by deceased Bheru Lal on 22.5.1980 by way of an agreement in lieu of maintenance and under Section 14 of the Hindu Succession Act, she has become full owner of the said property and in view of the said agreement, Bheru Lal had no right to execute the Will. She was in possession of the land-in-question since 22.5.1980 and has become owner thereof. Ultimately, it was prayed that the application for grant of probate be dismissed. The trial court framed several issues based on the pleadings of the parties and evidence was also recorded. However, during the pendency of the said proceedings on 7.4.1998, a compromise dated 31.3.1998 in the form of application under Order XXIII, Rule 3 CPC was filed by the appellant as well as respondents No.1 and 2. It would be appropriate to quote the said application / compromise, which reads thus :-