H.N.SETH,J. - (1.) THIS first appeal by Raj Kumar Jain and Iswar Kumar Jain sons of Kailash Chandra defendant No. 1 is directed against the judgment and decree of the 1st Civil Judge, Meerut dated 11th February 1976, de - creeing the plaintiff's suit for a declara -tion that the probate dated 26th October 1961 had no effect on the plaintiffs who were the owners of the property in suit,
(2.) THE suit giving rise to this appeal was filed by Ugra Sen son of Janki Das (plaintiff No. 1) Smt. Jag -wanti, widow of Kesho Ram another son of Janki Das (plaintiff No. 2). Smt. Rajeshwari Devi, Prem Chandra, Kumari Kamata Devi, Kumari Usha Devi, Kumari Nammo Rani Mahesh, children of Kesho Ram (plaintiff Nos. 3 to 8), on 15th October 1962. The plaintiff set up the following pedigree: - - BANSHIDHAR | Banarsi Das Smt. Asharfi Smt.Bisso Smt. Saggo=Ganesh | = Janki Das =Shuganchand Lal(husband) | (husband) (husband) ||| | | ____________________________ |||| | | Jugmandar Das Smt. Ram Katori | | died on 6.6.1954 died in 1955 || | __________________________________________________ |||| | 1. Bhavali Ugrasen Keshoram | 2. Asari Died long died 3.5.62 | 3. Marhana time back =Smt. Jagwati | 4. Sewati Piff. No. 2 | ____________________________________________________________________________________ ||| Pannalal Gomti Smt. Naggo ||| | ___________________________________ Kailash Chandra ||| | Sumat Prasad Prakasg Chandra ______________________________________ | __________________________________ || Chottey Lal Janeshwar Das || | Smt. Sharbati ____________________ || Lakhu Biru According to the plaintiffs the property mentioned in the plaint belonged to Jagmandar Das who died in the year 1954, leaving behind his real sister Ram Katori as sole heir and legal representative. Ram Katori who remained unmarried throughout her life died on 30th October 1955. As at the time of her death there was no one in the family of Jagmandar Das, the property which Ram Katori inherit -ted from Jagmandar Das passed to the plaintiffs Ugrasen and Kesho Ram sons of Janki Das, and their mother Smt. Asharfi. Eventually the share of Kesho Ram was, after his death, inherited by plaintiffs 2 to 8. The plaintiffs claimed that Ram Katori merely had life interest in the property left by her brother Jagmandar Das and she had no right to alienate the same. Defendant No. 1 Kailash Chandra Jain had no concern with the property but in collusion with some of his relations and friends he got a fictitious will purporting to have been executed by Ram Katori prepared and obtained a probate in respect thereof on 26th of October 1961 from the Court of Civil Judge Meerut. The appeal filed against the order dated 26th October 1961 was also dismissed by the High Court. However the order granting probate did not affect the rights of the plaintiffs in any manner. The plaintiffs had throughout been in possession of the property in dispute and that the cause of action for filing the suit arose on 31st October 1955, the date on which Ram Katori died,
(3.) DEFENDANT No. 1, Kailash Chandra, filed a written statement and claimed that the pedigree set up by thr plaintiffs was not correct. According to him Smt. Asharfi mother of Ugrasen was the daughter of Banarsi Das and not of Bansidhar as shown in the pedigree set up by the plaintiffs. Likewise, his mother Smt. Naggo was the daughter of Bansidhar and not of Banarsi Das as shown in that pedigree. In the circumstances it was defendant Kailash Chandra who was the nearest heir of Jagmandar Das and was entitled to succeed to the property left by Jagmandar Das and his sister Ram Katori. The property in dispute belonged to Jagmandar Das and Ram Katori and Ram Katori was fully empowered to dispose it of in any manner she liked. Ram Katori executed a will on 25th October 1955 bequeathing all her properties to contesting defendants who have already obtained a probate of the said will from the court of the District Judge Meerut. Despite this the plaintiffs, after the death of Ram Katori had taken wrongful possession of the property in dispute. The defendant pleaded that as the suit had been filed more than six years after the death of Ram Katori it was barred by time. He also pleaded that the suit was barred by res judicata and the provisions contained in Section 42 of the Specific Relief Act.;