MAHILA GEETA BAI Vs. RAMHET AND ORS.

JUDGEMENT

(1.) THIS appeal under Section 100 CPC by defendant is directed against the judgment and decree dated 7/7/2006 in civil appeal No. 23A/2006. The first appellate court has confirmed the judgment and decree dated 31/1/2006 passed in civil suit No. 247A/2000. Plaintiff's suit for declaration and permanent injunction has been partly decreed to the effect that suit land detailed in para 28(ka) of the trial court's judgment is decreed to be of the ownership and possession of plaintiff. The mutation in favour of defendants No. 1 and 3 in respect of aforesaid land is held to be null and void. Defendants No. 1 and 3 have been restrained from transferring the land described in paragraph 28(ga).

(2.) FACTS necessary and relevant for the disposal of this appeal, as pleaded in the plaint are to the effect that suit land, an agricultural land admeasuring 10 bigha 4 biswa, was of the ownership and possession of his maternal grandmother -Kasobai, which she had inherited from her father -Biharilal, as he had no son. Kasobai had three daughters, namely, Geetabai -defendant No. 1, Kanyabai -defendant No. 3 and Rampyari who had two sons, namely, Ramhet -plaintiff and Siyaram. As Rampyari had died in early age, therefore, plaintiff and his brother -Siyaram were brought up by maternal grandmother -Kasobai. It is submitted that by a Will, the suit land was bequeathed in favour of plaintiff by Kasobai during her lifetime. As Siyaram had died leaving behind no successor, the suit land is of exclusive ownership and possession of plaintiff. After death of Kasobai, the suit land has been recorded in the name of plaintiff and since then the suit land continues to be of the ownership and possession of the plaintiff. As defendants No. 1 and 3 attempted to seek mutation of the suit land in their name in the revenue records, therefore, with the apprehension that the suit land may be transferred by defendants No. 1 and 3, the instant suit was filed for declaration and permanent injunction.

(3.) THE trial court on aforesaid pleadings, framed issues and allowed the parties to lead evidence. Upon appreciation of evidence on record, suit was decreed with the finding that execution of Will was proved in accordance with Section 63 of the Indian Succession Act and, therefore, the suit land stood devolved upon the plaintiff by virtue of the Will. On appeal, the first appellate court has reconsidered the entire evidence on record and concurred with the findings of facts recorded by the trial court particularly as regards factum of execution of Will. The attesting witness to the Will namely Mathura (PW -2) in para 1 of his deposition has stated that Kasobai on each page of the Will had put her thumb impression in front of him and thereafter as a witness to the said document he has put his thumb impression. In view of the aforesaid categorical statement made by the attesting witness as regards factum of execution of Will, in the opinion of this Court, challenge to the Will as forged document has rightly been rejected by the courts below. Section 63 of the Hindu Succession Act for ready reference is quoted below: - -