- (1.) This judgment disposes of second appeal No. 252/01 and second appeal No. 254/01 because both the appeals arise from common judgment and decree and involve the following common substantial questions of law:- "1. Whether the Courts below erred in substantial error of law in holding that the Will Ex. D/l is proved when the attestation of the Will as envisaged under section 63 (c) of Indian Succession Act, 1925 has not been proved, in view of the decision of Supreme Court, Girja Datt Singh v. Gangotri Datt Singh AIR 1955 SC 346?
(2.) If the Will is not proved whether defendants are having any interest in the suit property?" 2. Briefly stated relevant facts are that the plaintiff and her mother Mahila Motya instituted a suit against defendants/respondents for declaration of title and restoration of possession with allegations that the suit land comprised in survey No. 49 in area 11 Bigha 11 Biswa, survey No. 113 in area 10 Bigha 16 Biswa and survey No. 242 in area 22 Bigha 10 Biswa, situated in village Ajapura, Tahsil Sheopurkalan, District Morena (presently District Sheopur), was owned byPrabhulal Dhakad, father of the plaintiff/appellant, who died somewhere in the year 1975. The suit property devolved upon plaintiffs after the death of Prabhulal Dhakad. Mahila Motya, the mother of the plaintiff/appellant gave the suit land to defendant No. 1 -Daulatram for cultivation on a condition that after deducting usual expenses, he would give crops to plaintiff Mahila Motya. Defendants started cultivating the suit land. They did not provide any crop to Mahila Motya. Lastly, in the year, 1982, the defendants disputed the title of the plaintiffs, hence, the suit for declaration that the plaintiffs are Bhumiswami of the suit land, in equal share. Plaintiffs also prayed for restoration of possession by the defendants.
(3.) Defendants by submitting their written statement refuted the claim of the plaintiff. They inter alia contended that the Will (Ex.D/1) was executed by Prabhulal Dhakad in their favour. They asserted their possession by virtue of the said Will (Ex.D/1).;