Permod Kohli, J. - (1.) R.S.A. No. 1214 of 2005
(2.) THIS Regular Second Appeal has been directed against the judgment and decree dated 5.3.2005 passed by Additional District Judge, Gurgaon, allowing the appeal filed by respondents/plaintiffs against the judgment and decree dated 30.4.2004 passed by the Civil Judge (Junior Division), Gurgaon. Brief facts of the case are that Sher Singh -plaintiff No. 1 in the suit (now deceased) suffered a decree dated 14.9.1995 passed by the Senior Sub Judge, Gurgaon in Civil Suit No. 568 of 1995, in respect of his estate in favour of Kamla Devi, his daughter -appellant herein, whereunder Kamla Devi was declared as the owner of the property. At the time of passing of decree, Sher Singh had his wife Smt. Kasturi and 6 more daughters, namely, Smt Gainda Devi, Smt. Maya, Smt. Santra, Smt. Bimla, Smt. Raj and Smt. Bala, all living. Later on, Sher Singh, his wife Kasturi and his daughters, except Kamla Devi and Smt. Bala filed suit in the court of Civil Judge (Jr. Division), Gurgaon seeking a declaration that the decree dated 14.9.1995, is nullity, having been procured by fraud, misrepresentation and undue influence and permanent injunction restraining Smt. Kamla Devi from dealing with the property. The trial court framed a many as three issues. The main issue i.e. Issue No. 1 reads as under - 1. Whether the impugned judgment and decree passed in Civil Suit No. 568 of 1995 titled Smt. Kamla Devi v. Sher Singh decided on 14.9.95 in respect of the suit land detailed in para No. 1 of the plaint is illegal, void, without jurisdiction and non -est? OPP
(3.) DURING the pendency of the suit, Sher Singh and his wife Kasturi both died and the suit was continued by the other plaintiffs who are otherwise their legal representatives. The trial court dismissed the suit holding that no medical evidence has been produced to show the physical and mental state of Sher Singh, at the time he suffered the decree. It also held that Smt. Kamla Devi had a pre -existing right in the property, on the basis of family settlement which was alleged in the decree and is to be presumed in favour of the decree holder.;