IMPORTANT POINTS
When the relationship of man and woman living as husband and wife in the joint family and having children out of such relationship is recognised by all concerned, then the relationship and the children out of it are valid and legitimate.
Will has to be proved to have been executed willingly and voluntarily. There should not be any suspicious circumstances shrouding the execution.

JUDGMENT

M.Y. EQBAL, J.

Aggrieved by the judgment and order passed by the High Court, partly dismissing First Appeal No.92 of 2001, both the plaintiff and the defendant have filed the aforementioned two appeals. While confirming judgment and decree, the High Court reversed the finding recorded by the trial court on the issue of will executed by the testatrix.

2. The plaintiff-Ganeshram, appellant in Civil Appeal No.3411 of 2007, filed suit for declaration, possession and damages in relation to the two suit houses described in Schedule A & B of the plaint, pleading inter alia that the registered sale deed of 1987, executed by Phoolbasa Bai (original defendant no.1, who died during the pendency of the suit) in favour of defendant no.5 Mukesh Kumar Chourasia, which relates to some portion of suit house, be declared illegal, void and not binding on him.

3. To understand factual matrix and issue involved in the case, we would like to reproduce here the pedigree table as submitted before us:

Shivram (Died in 1932)

---------------------------------------------------------------------------------------

      --   --

    Sumitrabai (Daughter) (died in 1976) Husband of       Chhatrapati (Son) (died in 1945)

     Sumitra-Mangal Prasad (Died in 1954)  Kept-wife: Phulbasabai (def.no.1)

    --    --

   --   Mannulal (son)

   --   (died unmarried on 14.4.1967)

    ----------------------------------------------------------------------------

  --    --

   Shyamlal (son) (daughter)  Radha Bai (died in 1973)

  ----------------------------------------------------------------------------

  --  ---    ----

Ganeshram (son) Plaintiff     Laxmi Bai (daughter)       Ganga Bai (daughter)     

4. The suit property was originally owned by Shivram who had a daughter Sumitrabai and a son Chhatrapati. The plaintiff, the grandson of Sumitrabai, filed a suit for declaration of ownership, possession and damages in relation to the suit property against defendant nos.1 to 5. The plaintiff challenged the validity of the Will dated 18.08.1977 purported to have been executed by Phoolbasa Bai in favour of the sons of her brother Gayaprasad, defendant nos.1-4. The plaintiff also challenged the validity of the sale deed purported to have been executed by Phoolbasa Bai in 1987 in favour of defendant no. 5 in relation to a portion of the suit property.

5. The plaintiff alleged that Sumitrabai (plaintiff’s grandmother) had become the owner of the suit property by adverse possession having stayed therein, after the death of her husband Mangal, with her father Shivram till his death in 1932 and till her own death in 1976. Phoolbasa Bai was alleged to have been the mistress and not the legally wedded wife of Chhatrapati and their son was alleged to have died unmarried and issueless in 1967. The sale deed and the Will purported to have been executed by Phoolbasa Bai were alleged to be illegal.

6. The suit was contested firstly by filing joint written statement by the original defendants namely Phoolbasa Bai and Gaya Prasad stating that after the death of Shiv Ram the entire property was succeeded by Chhatrapati (his only son) as Sumitrabai was a married daughter. It was further pleaded that Phoolbasa Bai, being the lawful wedded wife of Chhatrapati, became the owner of the suit property after Chhatrapati’s death in 1945. During the pendency of the suit, when Phoolbasa died, she was substituted by defendant nos.1 to 4, who also filed separate written statement in addition to earlier written statement filed by the original defendants. Defendant no.5 also filed separate written statement claiming to be the owner of the portion of property by virtue of a sale deed executed in his favour in 1987.

7. The trial court dismissed the civil suit holding that the Will executed by Phoolbasa in the year 1977 in favour of defendants nos.1 to 4 is legal and the sale effected by her during the pendency of the civil suit in favour of defendant no.5 is also legal and valid. The trial judge recorded the finding tha