MODILAL Vs. KANHIYALAL

JUDGEMENT

(1.) THE suit brought by plaintiffs Modilal and others having been dismissed on appeal by the learned District Judge of Udaipur on August 7, 1959, they have preferred this second appeal.

(2.) THE dispute is like this: Kalulal, a cousin of plaintiff Modilal, was a resident of village Chandesra, in Mavli Tehsil. He had no issue and it is alleged that he executed a will (Ex. A. 1/d, W. 4) on Chaitra Sud 4, Samwat 2010 (April 7,1954) in favour of the "samast Panch Oswals" of his village, in the 'bahi' of the Pancha-yat, by which he bequeathed his property to the Oswal community. He died the very next day and it is claimed that plaintiff Modilal, who was his nearest heir, executed document Ex. 2 on April 11, 1954 agreeing to the will and the devolution of Kalulal's property on the Oswal panchayat. This document was executed by Modilal for himself and his son Harakchand, who is one of the plaintiffs. Kalulal and Modilal descended from a common ancestor named Vardaji. Modilal was the descendant of Vardaji's second son Khambaji, while Kalulal was the descendant of Vardaji's son Hatuji. Daulalji was Vardaji's eldest son and the other plaintiffs are his descendants. Ambalal, who was one such descendant of Daulalji, also, it is claimed, executed document Ex. 1 on April 12, 1954, along with plaintiff Modilal, in favour of the Panchs upholding Kalulal's will. As a matter of fact, the will in question was got registerad by the Panchas on July 9, 1954. In the mean time, Modilal, his son Harakchand, and Ambalal and his brothers, instituted the present suit on May 20, 1954, challenging the validity of Kalulal's will Ex. A. /d. W. 4 and disowning their agreement to it as incorporated in documents Exs. 2 and 1 on the ground that it had been, obtained by fraud and coercion. THE plaintiffs therefore prayed for a declaration that they were the heirs of Kalulal, that the will (which has been described as a document of gift but which, it is admitted, was really a will) was not according to the law and that the defendants, who are the panchas of the Oswal community, are not entitled to Kalulal's property. THE plaintiffs also prayed for a declaration that the documents Exs. 2 and 1 were not binding on them. THE defendants contested the claim on the grounds that the will was genuine and valid, and that Modilal and Ambalal had voluntarily confirmed it in their documents Exs. 2 and 1. Some other pleas were taken, but it is not necessary to refer to them as they have not been made the subject matter of any controversy in this Court.