JUDGMENT :

1. This second appeal preferred by the appellant/plaintiff was admitted for hearing on 25/09/2013 by formulating the following three substantial questions of law :

“1. Whether in the absence of any challenge to the registered Will Deed dated 12.9.01, within three years as per Section 19 of Contract Act, the same having become final, could it now be challenged. Whether the finding of the Lower Appellate Court is perverse on this ground ?

2. Whether the property purchased by deceased Balram Dubey is from his professional income. Therefore can anybody question the disposal of the said property by will ?

3. Whether the finding of the Lower Appellate Court reversing the judgment and decree of the trial Court is perverse ?”

[The parties will hereinafter be referred to as per their status given and ranking shown in the plaint before the trial Court.]

2. The sole plaintiff/appellant herein filed a suit for declaration of title and permanent injunction stating inter alia that though the suit property was purchased by her husband Balram Dubey from defendant No. 2 Society by registered sale deed dated (Ex. P/1) in the name of his son born out of his wedlock with his first wife Foolbadan i.e. defendant No. 1 herein during his minority, but it was the property of her husband namely Balram Dubey who has executed a Will deed dated 12/09/2001 (Ex. P/4) in her favour in the presence of two witnesses, therefore, decree be granted in her favour as she has become the titleholder of the said suit property on the basis of the Will (Ex. P/4) executed by her husband Balram Dubey in her favour and appropriate direction be given to defendant No. 2 Society for registering her name as the titleholder of the suit property.

3. Resisting the suit, defendant No. 1 filed his written statement stating inter alia that his mother Foolbadan was the legally wedded wife of his father Balram Dubey, whereas plaintiff is not the legally wedded wife of his father Balram Dubey and since the suit property was the self-acquired property of his father, defendant No. 1 has inherited the suit property being his father's property in which plaintiff has no right or title and as such, suit deserves to be dismissed.

4. The trial Court, upon appreciation of oral and documentary evidence on record, decreed the suit vide judgment and decree dated 23/04/2011, holding that the suit property was the self-acquired property of Balram Dubey and he has executed a Will deed dated 12/09/2001 (Ex. P/4) in favour of the plaintiff and by which the plaintiff has become the title holder of suit property.

5. On appeal being preferred, learned first appellate Court reversed the judgment and decree of the trial Court by relying upon Section 4(1) of the Benami Trasactions (Prohibition) Act, 1988 (in short, the Act of 1988) holding that plea of benami could not have been permitted to be raised by the plaintiff in view of bar contained in Section 4(1) of the Act of 1988 and allowed the appeal, and consequently dismissed the suit vide impugned judgment and decree dated 25/08/2012, against which this second appeal has been preferred by the appellant/plaintiff under Section 100 of CPC in which three substantial questions of law have been framed and set out in the opening paragraph of the judgment.

6. Mr. H.B. Agrawal, learned senior counsel appearing for the appellant/plaintiff, would submit that once the Will has been proved in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, then it has become final and the suit property being the self-acquired property of Balram Dubey, learned first appellate Court could not have reversed the judgment and decree of the trial Court relying upon alleged bar contained in Section 4(1) of the Act of 1988, as such, the impugned judgment and decree passed by the first appellate Court deserves to be set aside. He would also submit that the judgment of the first appellate Court is very cryptic and in four