DATTATREAY KAPDEO Vs. DILEEP GANPAT RAO KAPDEO

JUDGEMENT

(1.) Heard on the question of admission as well as on I.A. No.12744/2017, an application under Order 41 Rule 27 R/w Section 151 of CPC.

(2.) The plaintiff/appellant is the brother of testator Purshottam, who died on 30.12005, and defendant/ respondent is the nephew (son of his brother). The plaintiff claimed that Purshottam, who was unmarried had bequeathed his property mentioned in para 2 of the plaint in his favour by way of a registered Will dated 29.07.2003. In the alternate, it was pleaded that even as per Section 6-B of the Succession Act, he is the only legal heir of Purshottam. It was the claim of plaintiff that he was in possession and cultivating the suit land since 1996-97 as Purshottam was physically weak and unable to look after his land. He was not well, therefore executed a registered Will in his favour in the year 2003. Hence, on the basis of the Will, the plaintiff filed a suit praying for declaration of his title to the suit property and for a permanent injunction restraining the defendant from interfering in his possession thereof and also for declaring the orders dated 30.06.2007, 16.09.2008 and 26.04.2011 passed by the Revenue Courts mutating 1/3rd share of the suit property in the name of defendant as null and void.

(3.) The suit was resisted by the defendant contending that the Will relied upon by the plaintiff was not valid as Purshattam's mental condition was not good and he was unable to take decision. It was contended that the suit property is joint family property and there is no actual partition between the parties and under a family settlement, Purshottam's name was mutated on the suit land with the consent of other members of the joint family.