Nisha Gupta, J. - (1.) THIS first appeal under Section 96 CPC has been filed against the judgment and decree dated 15.4.2005 passed by Additional District Judge (Fast Track), Behror, Alwar in Civil Suit No. 103/04 (17/02) whereby the suit filed by the appellants has been dismissed.
(2.) THE brief facts of the case giving rise to this appeal are that plaintiff appellants filed a suit for cancellation of Will dated 12.6.2001 on the ground that Will dated 12.6.2001 has been forged in favour of respondents whereas earlier father of the parties Lallu Singh has executed a Will dated 7.6.2001 and property has been divided in all the three children's. The earlier Will was attested by notary public and witnessed by two witnesses. On 14.6.2001, Lallu Singh died. Thereafter wife of respondent No. 1 got her name entered in the mutation which was objected by the appellants and suit has been filed which was dismissed, hence this appeal. The contention of the counsel for the appellants is that the property in dispute was the ancestral property in the hands of Lallu Singh hence he was not able to alienate it by Will and Will dated 12.6.2001 is without competence and during the course of appeal, application under O. 41 R. 27 CPC has been submitted with the contention that the suit property was in the name of their grand -father Mangtu Singh and it is the ancestral property. Earlier the documents were not within the knowledge of the appellants and notwithstanding the exercise of due diligence they could not be produced before the trial Court and issue No. 1 has been decided against them only on this ground that no documentary evidence has been submitted to prove that the disputed property is ancestral property, hence application under O.41 R. 27 CPC be allowed and decree of the court below be set aside. Per contra, the contention of the respondents is that there is no infirmity in the finding and conclusion of the court below. It does not lie in the mouth of the appellants to say that the disputed property is the ancestral property in the hands of Lallu Singh as the basis of the suit for cancellation of Will dated 12.6.2001 is the earlier Will dated 7.6.2001 executed in favour of appellants and non production of documents before the trial Court was with the mala fide intention as the Will dated 7.6.2001 was in favour of appellants the documents have not been submitted and when the suit has been dismissed then only false documents have been submitted.
(3.) HEARD the learned counsel for the parties and perused the judgment and decree under appeal as well as original record of the case.;